[Federal Register Volume 71, Number 113 (Tuesday, June 13, 2006)]
[Proposed Rules]
[Pages 34196-34230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5233]



[[Page 34195]]

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

Part II





Department of the Interior





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



Fish and Wildlife Service



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



50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Establishment of 
Nonessential Experimental Population Status for 15 Freshwater Mussels, 
1 Freshwater Snail, and 5 Fishes in the Lower French Broad River and in 
the Lower Holston River, Tennessee; Proposed Rule

  Federal Register / Vol. 71, No. 113 / Tuesday, June 13, 2006 / 
Proposed Rules  

[[Page 34196]]


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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU01


Endangered and Threatened Wildlife and Plants; Establishment of 
Nonessential Experimental Population Status for 15 Freshwater Mussels, 
1 Freshwater Snail, and 5 Fishes in the Lower French Broad River and in 
the Lower Holston River, Tennessee

AGENCY: Fish and Wildlife, Interior.

ACTION: Proposed rule.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), in 
cooperation with the State of Tennessee and Conservation Fisheries, 
Inc., a nonprofit organization, propose to reintroduce 15 mussels 
listed as endangered under section 4 of the Endangered Species Act of 
1973, as amended (Act): Appalachian monkeyface (pearlymussel) (Quadrula 
sparsa), birdwing pearlymussel (Conradilla caelata = Lemiox rimosus), 
cracking pearlymussel (Hemistena or currently =Lastena lata), 
Cumberland bean (pearlymussel) (Villosa trabalis), Cumberlandian 
combshell (Epioblasma brevidens), Cumberland monkeyface (pearlymussel) 
(Quadrula intermedia), dromedary pearlymussel (Dromus dromas), fanshell 
(Cyprogenia stegaria), fine-rayed pigtoe (Fusconaia cuneolus), 
orangefoot pimpleback (pearlymussel) (Plethobasus cooperianus), oyster 
mussel (Epioblasma capsaeformis), ring pink (mussel) (Obovaria retusa), 
rough pigtoe (Pleurobema plenum), shiny pigtoe (Fusconaia cor), and 
white wartyback (pearlymussel) (Plethobasus cicatricosus); 1 endangered 
aquatic snail: Anthony's riversnail (Athearnia anthonyi); 2 endangered 
fishes: duskytail darter (Etheostoma percnurum) and pygmy madtom 
(Noturus stanauli); and 3 fishes listed as threatened under section 4 
of the Act: slender chub (Erimystax cahni), spotfin chub (=turquoise 
shiner) (Erimonax monachus), and yellowfin madtom (Noturus flavipinnis) 
into their historical habitat in the free-flowing reach of the French 
Broad River below Douglas Dam to its confluence with the Holston River, 
Knox County, Tennessee, and in the free-flowing reach of the Holston 
River below Cherokee Dam to its confluence with the French Broad River. 
Based on the evaluation of species experts, none of these 21 species 
currently exist in these river reaches or their tributaries. These 
species are being reintroduced under the authority of section 10(j) of 
the Act and would be classified as a nonessential experimental 
population (NEP).
    The geographic boundaries of the proposed NEP would extend from the 
base of Douglas Dam (river mile (RM) 32.3 (51.7 kilometers (km)) down 
the French Broad River, Knox and Sevier Counties, Tennessee, to its 
confluence with the Holston River and then up the Holston River, Knox, 
Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee 
Dam (RM 52.3 (83.7 km)) and would include the lower 5 RM (8 km) of all 
tributaries that enter these river reaches.
    These proposed 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 conducting 
throughout the species' historical ranges. This proposed rule provides 
a plan for establishing the NEP and provides for limited allowable 
legal take of these 16 mollusks and 5 fishes within the defined NEP 
area. We have decided to include all 21 species in a single rulemaking 
to allow us to restore the aquatic ecosystem as quickly as possible as 
we bring each of these species on line in the propagation facilities. 
We have reasons to believe all of these species co-existed in the past, 
and also want the public to understand that all of these species will 
be reintroduced into the same stretch of river rather than being 
confused by 21 separate NEPs.

DATES: We will consider comments on this proposed rule that are 
received by August 14, 2006. Requests for a public hearing must be made 
in writing and received by July 28, 2006.

ADDRESSES: You may submit comments and other information, identified by 
Regulatory Information Number (RIN) 1018-AU01, by any of the following 
methods:
     Mail or Hand Delivery: Field Supervisor, U.S. Fish and 
Wildlife Service, Tennessee Field Office, 446 Neal Street, Cookeville, 
Tennessee, 38501.
     Fax: 931-528-7075.
     E-mail: [email protected]. Include ``Attn: French 
Broad/Holston Rivers NEP'' in the subject line of the message.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Please see the ``Public Comments Solicited'' section below for 
information about submitting comments.
    The comments and materials we receive during the comment period 
will be available for public inspection, by appointment, during normal 
business hours at our Tennessee Field Office at the above address. If 
you wish to request a public hearing, you may mail or hand deliver your 
written request to the Tennessee Field Office at the above address.

FOR FURTHER INFORMATION CONTACT: Timothy Merritt, U.S. Fish and 
Wildlife Service at the above address (telephone 931/528-6481, 
facsimile 931/528-7075).

SUPPLEMENTARY INFORMATION:

Background

    1. Legislative: Under section 10(j) of the Act, the Secretary of 
the Department of the Interior may designate reintroduced populations 
established outside the species' current range, but within its 
historical range, as ``experimental.'' Based on the best scientific and 
commercial data available, we must determine whether experimental 
populations are ``essential'' or ``nonessential'' to the continued 
existence of the species. Regulatory restrictions are considerably 
reduced under a nonessential experimental population (NEP) designation.
    Without the NEP designation, the Act provides that species listed 
as endangered or threatened are afforded protection primarily through 
the prohibitions of section 9, the consultation requirements of section 
7 and the special regulations provisions of section 4(d). Section 
9(a)(1)(B) 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 
prohibitions of take to threatened wildlife but these general 
provisions may be altered as deemed by the Secretary to be necessary 
and advisable for the conservation of threatened species. Section 7 of 
the Act outlines the procedures for Federal interagency cooperation to 
conserve federally listed species and protect designated critical 
habitat. It mandates that all Federal agencies use their existing 
authorities to further the purposes of the Act by carrying out programs 
for the conservation of listed species. It also states that Federal 
agencies must, 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

[[Page 34197]]

are authorized, funded, or carried out by a Federal agency.
    A population designated as experimental is treated for the purposes 
of section 9 of the Act as threatened, regardless of the species' 
designation elsewhere in its range. Threatened designation allows us 
greater discretion in devising management programs and special 
regulations for such a population. Section 4(d) of the Act allows us to 
adopt whatever regulations are necessary to provide for the 
conservation of a threatened species. Although a special 4(d) rule can 
contain the prohibitions and exceptions necessary and appropriate to 
conserve that species, regulations issued under section 4(d) for NEPs 
are usually less restrictive with regard to human activities in the 
reintroduction area.
    For the purposes of section 7 of the Act, we treat an NEP as a 
threatened species when the NEP is located within a National Wildlife 
Refuge or National Park, and section 7(a)(1) and the consultation 
requirements of section 7(a)(2) of the Act apply. When NEPs are located 
outside a National Wildlife Refuge or National Park, we treat the 
population as proposed for listing and only the conference provisions 
of section 7(a)(4) apply. Section 7(a)(4) requires Federal agencies to 
confer (rather than consult) with the Service on actions that are 
likely to jeopardize the continued existence of a species proposed to 
be listed. The results of a conference are advisory in nature and do 
not restrict agencies from authorizing, funding, or carrying out 
activities.
    2. Biological Information: The lower French Broad and Holston 
Rivers historically supported a diverse fish, snail, and mussel fauna, 
possibly as many as 85 mussel species and subspecies, or about 65 
percent of the mussel diversity once known from the entire Tennessee 
River system (Parmalee and Bogan, 1998; Steve Ahlstedt, U.S. Geological 
Survey (USGS), personal communication (pers. comm.) 2004). Of this once 
rich aquatic fauna, 7 mussel species are extinct, and 21 federally 
listed species (i.e, the 15 mussels, 1 aquatic snail, and 5 fishes 
listed above in the SUMMARY section) are extirpated from these river 
reaches. The only federally listed mussel still occurring in the 
proposed NEP area is the endangered pink mucket (Lampsilis abrupta), 
which still occurs in both the lower French Broad and lower Holston 
Rivers (Steve Ahlstedt, pers. comm. 2004). The pink mucket is not one 
of the 15 mussel species we are proposing to reintroduce under this 
NEP.
    Although much of the mussel fauna and some of the snail and fish 
fauna were eliminated from these river reaches, considerable suitable 
physical habitat remains, and various Federal (primarily the Tennessee 
Valley Authority (TVA)) and State natural resources agencies, 
industries, and municipalities have worked together to improve the 
water quality below the dams. Fish populations are rebounding 
(including the appropriate fish host species for mussel glochidia) and 
snail populations are expanding in both rivers, and non-federally 
listed mussels and snails released into the lower French Broad River to 
test the area's suitability for mollusk transplants are doing well. 
Based on the results of recent studies and observations by 
knowledgeable scientists (P. Rakes and J. Shute, Conservation 
Fisheries, Inc. (CFI), pers. comm. 2004; Ed Scott and Charlie Saylor, 
TVA, pers. comm. 2004; James Layzer and Steve Ahlstedt, USGS, pers. 
comm. 2004), these river reaches now provide suitable habitat for 
reintroductions to occur.
    Since the mid-1980s, CFI, a nonprofit organization, with support 
from us, the Tennessee Wildlife Resources Agency (TWRA), U.S. Forest 
Service, National Park Service, TVA, and Tennessee Aquarium, has 
successfully translocated, propagated, and reintroduced spotfin chubs, 
duskytail darters, yellowfin madtoms, and smoky madtoms into Abrams 
Creek, Great Smoky Mountains National Park, Blount County, Tennessee. 
These fish historically occupied Abrams Creek prior to an ichthyocide 
treatment in the 1950s. An NEP designation for Abrams Creek was not 
needed since the entire watershed occurs on National Park Service land; 
section 7 of the Act applies regardless of the NEP designation, and 
existing human activities and public use are consistent with protection 
and take restrictions needed for the reintroduced populations. Natural 
reproduction by all four species in Abrams Creek has been documented, 
but the spotfin chub appears to be the least successful in this 
capacity (Rakes and Shute 2004a, 2004b). We have also worked with CFI 
to translocate, propagate, and reintroduce these same four fish into an 
NEP established for a section of the Tellico River, Monroe County, 
Tennessee (67 FR 52420, August 12, 2002). Propagated fish of these four 
species were released into the Tellico River starting in 2003 and 
continuing in 2004. It is still too early to determine the success of 
these releases, but it is believed that the habitat and water quality 
is sufficient to ensure future success similar to the Abrams Creek 
reintroductions. CFI has also successfully placed yellowfin madtoms in 
an existing NEP on the North Fork Holston River, Washington County, 
Virginia. This site is separated from the proposed NEP on the lower 
Holston River by reservoirs, and the fish is not known from any of 
these reservoirs or intervening river sections. These reservoirs and 
river sections act as barriers to movement by the fish and assure that 
the North Fork Holston River population will remain geographically 
isolated and easily identifiable as a distinct population from the 
proposed Lower Holston River population.
    3. Listing Information, Distribution, and Recovery Goals/
Objectives: The Appalachian monkeyface (pearlymussel) (Quadrula sparsa) 
(Lea 1841) was listed as an endangered species on June 14, 1976 (41 FR 
24062). We finalized a recovery plan for the species in July 1984 
(Service 1984a). It historically occurred in the Tennessee River and 
three of its tributaries: the Clinch, Holston, and Powell Rivers 
(Service 1984a). We are unaware of historical records of the species in 
the French Broad River, but archeological records (Parmalee and Bogan 
1998) of this species exist from the Little Pigeon River (a lower 
French Broad River tributary). The species may still survive in 
extremely low numbers in the Powell River in Tennessee and the Clinch 
River in Virginia (Parmalee and Bogan 1998). No downlisting 
(reclassification from endangered to threatened) criteria are provided 
in the recovery plan. The delisting objectives for the Appalachian 
monkeyface (Service 1984a) are to: (1) Restore the viability of the 
Clinch and Powell River populations; (2) reestablish or discover viable 
populations in one additional river; (3) ensure that the species is 
protected from present and foreseeable threats to the continued 
existence of any population; and (4) determine that there are 
noticeable improvements in coal-related problems and substrate quality 
in the Powell River and that no increase in coal-related sedimentation 
has occurred in the Clinch River.
    The birdwing pearlymussel (Conradilla caelata = Lemiox rimosus) 
(Conrad 1834) was listed as an endangered species on June 14, 1976 (41 
FR 24062). We finalized a recovery plan for the species in July 1984 
(Service 1984b). We also established an NEP for the birdwing 
pearlymussel and 15 other federally listed mussels for a section of the 
Tennessee River below the Wilson Dam in Colbert and Lauderdale 
Counties, Alabama, on June 14, 2001 (66

[[Page 34198]]

FR 32250). Historical records exist for the species in 11 rivers in the 
Tennessee River system, and one record exists from an unknown location 
in the Cumberland River. Historically, the species occurred in the 
Tennessee River near the confluence of the French Broad and Holston 
Rivers, in the Holston River just upstream of its confluence with the 
French Broad River, and in the Nolichucky River (a French Broad River 
tributary) (Parmalee and Bogan 1998). Archeological records (Parmalee 
1988) of this species exist from the Little Pigeon River, a lower 
French Broad River tributary. It now survives in the Clinch and Powell 
Rivers in Tennessee and Virginia and in the Duck and Elk Rivers in 
Tennessee (Service 1984b). No downlisting criteria are given in the 
recovery plan. The delisting objectives for the birdwing pearlymussel 
(Service 1984b) are to: (1) Restore the viability of the Clinch and 
Powell River populations; (2) reestablish or discover viable 
populations in two additional rivers; (3) ensure that the species is 
protected from present and foreseeable threats to the continued 
existence of any population; and (4) determine that noticeable 
improvements in coal-related problems and substrate quality have 
occurred in the Powell River and that no increase in coal-related 
sedimentation has occurred in the Clinch River.
    The cracking pearlymussel (Hemistena lata) (Rafinesque 1820) was 
listed as an endangered species on September 28, 1989 (54 FR 39850). We 
finalized a recovery plan for the species in July 1991 (Service 1991a). 
We also established an NEP for the cracking pearlymussel and 15 other 
federally listed mussels for a section of the Tennessee River below the 
Wilson Dam in Colbert and Lauderdale Counties, Alabama, on June 14, 
2001 (66 FR 32250). This species historically occurred in the Ohio, 
Cumberland, and Tennessee River systems (Bogan and Parmalee 1983; 
Service 1991a). It is extirpated throughout much of its range. 
Historical records exist from the Tennessee River near the confluence 
of the French Broad and Holston Rivers (Parmalee and Bogan 1998). No 
historical records exist for the species in the French Broad system, 
but archaeological records (Parmalee 1988) of this species exist from 
the Little Pigeon River, a lower French Broad River tributary. It now 
survives at a few shoals in the Clinch and Powell Rivers in Tennessee 
and Virginia (Bogan and Parmalee 1983; Neves 1991). It possibly 
survives in the Green River in Kentucky and in the Tennessee River, 
below Pickwick Dam, in Tennessee (Service 1991a). The downlisting 
objectives for the cracking pearlymussel (Service 1991a) are to: (1) 
Reestablish/discover five viable populations; (2) ensure that one 
naturally produced year class exists within each population; (3) 
determine if recovery actions have been successful, as determined by an 
increase in population density and/or an increase in length of river 
inhabited; and (4) ensure there are no foreseeable threats to the 
continued existence of any population. The delisting objectives call 
for the reestablishment/discovery of eight viable populations and two 
naturally produced year classes within each population.
    The Cumberland bean (pearlymussel) (Villosa trabalis) (Conrad 1834) 
was listed as an endangered species on June 14, 1976 (41 FR 24062). We 
finalized a recovery plan for the species in August 1984 (Service 
1984c). We also established an NEP for the Cumberland bean and 15 other 
federally listed mussels for a section of the Tennessee River below the 
Wilson Dam in Colbert and Lauderdale Counties, Alabama, on June 14, 
2001 (66 FR 32250). This species historically occurred in 10 river 
systems in the Cumberland and Tennessee River basins (Service 1984c). 
No historical records exist in the French Broad River system, but 
archaeological records (Parmalee 1988) of this species exist from the 
Little Pigeon River, a lower French Broad River tributary. The 
Cumberland bean now survives only in the Hiwassee River in Tennessee; 
in Buck Creek, the Little South Fork of the Cumberland River, and the 
Rockcastle River system in Kentucky; and in the Big South Fork of the 
Cumberland River in Tennessee and Kentucky (Service 1984c). No 
downlisting criteria are given in the recovery plan. The delisting 
objectives for the Cumberland bean (Service 1984c) are to: (1) Restore 
the viability of populations in Buck Creek, the Rockcastle River, and 
the Little South Fork River in Kentucky; (2) reestablish or discover 
viable populations in two additional rivers; (3) ensure that the 
species is protected from present and foreseeable threats to the 
continued existence of any population; and (4) determine that 
noticeable improvements in coal-related problems and substrate quality 
have occurred in the upper Cumberland and Tennessee drainages and that 
no increase in coal-related sedimentation exists in streams containing 
this species.
    The Cumberlandian combshell (Epioblasma brevidens) (Lea 1831) was 
listed as an endangered species on January 10, 1997 (62 FR 1647). 
Critical habitat was designated for this species on August 31, 2004 (69 
FR 53136). We finalized a recovery plan for the species in May 2004 
(Service 2004). We also established an NEP for the Cumberlandian 
combshell and 15 other federally listed mussels for a section of the 
Tennessee River below the Wilson Dam in Colbert and Lauderdale 
Counties, Alabama, on June 14, 2001 (66 FR 32250). 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, populations survive 
in a few river reaches in both river systems (Gordon 1991). It 
historically occurred in the lower Holston River and a French Broad 
River tributary (Nolichucky River) (Parmalee and Bogan 1998). 
Archaeological records (Parmalee 1988) of this species exist from the 
Little Pigeon River, a lower French Broad River tributary. The 
downlisting objectives for the Cumberlandian combshell (Service 2004) 
call for the reestablishment/discovery of six viable populations and 
one naturally reproducing year class within each viable population. The 
delisting objectives are to: (1) Reestablish or discover viable 
populations in nine distinct streams, including three in the Cumberland 
River system, four in the upper Tennessee River system, and two in the 
lower Tennessee River system; (2) ensure that the species is protected 
from present and foreseeable threats to the continued existence of any 
population; and (3) ensure two distinct naturally reproducing year 
classes exist within each of the viable populations.
    The Cumberland monkeyface (pearlymussel) (Quadrula intermedia) 
(Conrad 1836) was listed as an endangered species on June 14, 1976 (41 
FR 24062). We completed a recovery plan for the species in July 1984 
(Service 1984d). We also established an NEP for the Cumberland 
monkeyface and 15 other federally listed mussels for a section of the 
Tennessee River below the Wilson Dam in Colbert and Lauderdale 
Counties, Alabama, on June 14, 2001 (66 FR 32250). It historically 
occurred in 11 rivers in the Tennessee River system (Service 1984d). 
Based on collections from aboriginal shell middens, Parmalee and Bogan 
(1998) stated that the species once occurred at the confluence of the 
French Broad and Holston Rivers. The species now survives at a few 
shoals in the Powell River in Tennessee and Virginia and the Elk and 
Duck Rivers in Tennessee (Service 1984d). No downlisting criteria are 
given in the recovery plan. The delisting objectives for the Cumberland

[[Page 34199]]

monkeyface (Service 1984d) are to: (1) Restore the viability of the 
Powell and Elk River populations; (2) reestablish or discover viable 
populations in two additional rivers; (3) ensure that the species is 
protected from present and foreseeable threats to the continued 
existence of any population; and (4) determine that noticeable 
improvements in coal-related problems and substrate quality have 
occurred in the Powell River and that no increase in coal-related 
sedimentation occurs in the Clinch River.
    The dromedary pearlymussel (Dromus dromas) (Lea 1845) was listed as 
an endangered species on June 14, 1976 (41 FR 24062). We completed a 
recovery plan for the species in July 1984 (Service 1984e). We also 
established an NEP for the dromedary pearlymussel and 15 other 
federally listed mussels for a section of the Tennessee River below the 
Wilson Dam in Colbert and Lauderdale Counties, Alabama, on June 14, 
2001 (66 FR 32250). It was historically widespread in the Cumberland 
and Tennessee River systems (Bogan and Parmalee 1983). Parmalee and 
Bogan (1998) reported that the species historically occurred in the 
lower Holston River in Knox and Grainger Counties. Archaeological 
records of this species exist from the Little Pigeon River, a lower 
French Broad River tributary (Parmalee 1988). It survives at a few 
shoals in the Powell and Clinch Rivers in Tennessee and Virginia and 
possibly in the Cumberland River in Tennessee (Service 1984e; Neves 
1991). No downlisting criteria are given in the recovery plan. The 
delisting objectives for the dromedary pearlymussel (Service 1984e) are 
to: (1) Restore the viability of the Clinch and Powell River 
populations; (2) reestablish or discover viable populations in three 
additional rivers; (3) ensure that the species is protected from 
present and foreseeable threats to the continued existence of any 
population; and (4) determine that noticeable improvements in coal-
related problems and substrate quality have occurred in the Powell 
River and that no increase in coal-related sedimentation occurs in the 
Clinch River.
    The fanshell (Cyprogenia stegaria) (Rafinesque 1820) was listed as 
an endangered species on June 21, 1990 (55 FR 25591). We completed a 
recovery plan for the species in July 1991 (Service 1991b). It 
historically occurred in the Ohio River and many of its large 
tributaries in Pennsylvania, West Virginia, Ohio, Indiana, Illinois, 
Kentucky, Alabama, Virginia, and Tennessee (Service 1991b). Ortmann 
(1918) reported it from the lower Holston River, and Parmalee and Bogan 
(1998) reported it from archaeological sites in the lower French Broad 
River and its tributary, the Little Pigeon River. Presently, the 
fanshell is believed to be reproducing in three rivers: The Green and 
Licking Rivers in Kentucky and the Clinch River in Tennessee and 
Virginia. Additionally, based on the collection of a few old specimens 
in the 1980s, small, apparently nonreproducing, populations may still 
persist in the Muskingum and Walhonding Rivers in Ohio, the Kanawha 
River in West Virginia, the Wabash River system in Illinois and 
Indiana, the Barren River and Tygarts Creek in Kentucky, and the 
Tennessee and Cumberland Rivers in Tennessee (Service 1991b). The 
downlisting objectives for the fanshell (Service 1991b) are to: (1) 
Protect existing populations, reestablish historical populations, and/
or discover new populations so that at least nine distinct viable 
populations exist; (2) ensure that one naturally reproduced year class 
exists within each of the nine populations; and (3) ensure that studies 
of the species' biological and ecological requirements are complete and 
that any required recovery measures are beginning to succeed. The 
delisting objectives are to: (1) Protect existing populations, 
reestablish historical populations, and/or discover new populations so 
that at least 12 distinct viable populations exist; (2) ensure that two 
distinct naturally reproduced year classes exist within each viable 
population; (3) ensure that studies of the species' biological and 
ecological requirements are complete and that any required recovery 
measures are successful; (4) ensure that no foreseeable threats exist 
that would likely impact the species' survival over a significant 
portion of its range; and (5) ensure that noticeable improvements in 
water and substratum quality have occurred where habitat has been 
degraded.
    The fine-rayed pigtoe (Fusconaia cuneolus) (Lea 1840) was listed as 
an endangered species on June 14, 1976 (41 FR 24062). We finalized a 
recovery plan for the species in September 1984 (Service 1984f). We 
also established an NEP for the fine-rayed pigtoe and 15 other 
federally listed mussels for a section of the Tennessee River below the 
Wilson Dam in Colbert and Lauderdale Counties, Alabama, on June 14, 
2001 (66 FR 32250). It historically occurred in 15 Tennessee River 
tributaries (including the lower Holston River) and is currently known 
from 7 rivers (including the Nolichucky River, a French Broad River 
tributary, above the backwaters of Douglas Reservoir) (Service 1984f; 
Parmalee and Bogan 1998). No downlisting criteria are given in the 
recovery plan. The delisting objectives for the fine-rayed pigtoe 
(Service 1984f) are to: (1) Restore viable populations to the Clinch, 
Powell, and North Fork Holston Rivers, to the Little River and Copper 
Creek (Clinch River tributaries), and to the Elk River (Tennessee), 
Sequatchie River (Tennessee), and the Paint Rock River (Alabama); (2) 
reestablish or discover one viable population in an additional river; 
(3) ensure that the species is protected from present and foreseeable 
threats to the continued existence of any population, and (4) determine 
that noticeable improvements in coal-related problems and substrate 
quality have occurred in the Powell River and that no increase in coal 
or other energy-related impacts occurs in the Clinch River.
    The orangefoot pimpleback (pearlymussel) (Plethobasus cooperianus) 
(Lea 1834) was listed as an endangered species on June 14, 1976 (41 FR 
24062). We completed a recovery plan for the species in August 1984 
(Service 1984g). It historically occurred in the Ohio, Cumberland, and 
Tennessee River systems, including the lower French Broad and Holston 
Rivers (Parmalee and Bogan 1998). The species persists in the lower 
Ohio, Tennessee, and Cumberland Rivers (Service 1984g). In 2005, three 
adults were taken from the Ohio River and moved to the Kentucky 
Department of Fish and Wildlife Resources' propagation facility in 
Frankfort, Kentucky (Leroy Koch, USFWS, pers. comm. 2005). No 
downlisting criteria are given in this recovery plan. The delisting 
objectives for the orangefoot pimpleback (Service 1984g) are to ensure 
that: (1) One viable population exists in the Tennessee, Cumberland, 
and Ohio Rivers and these populations are dispersed throughout each 
river so that it would be unlikely for any one event to cause the total 
loss of any population; (2) viable populations are reestablished or 
discovered in two additional rivers; (3) three year classes, including 
one year class 10 years old or older, have naturally produced in each 
population; (4) no foreseeable threats exist that would interfere with 
the survival of any population; and (5) noticeable improvements in 
water and substratum quality have occurred where habitat has been 
degraded.
    The oyster mussel (Epioblasma capsaeformis) (Lea 1834) was listed 
as an endangered species on January 10, 1997 (62 FR 1647). Critical 
habitat was designated for this species on August 31, 2004 (69 FR 
53136). We finalized a

[[Page 34200]]

recovery plan for the species in May 2004 (Service 2004). We also 
established an NEP for the oyster mussel and 15 other federally listed 
mussels for a section of the Tennessee River below the Wilson Dam in 
Colbert and Lauderdale Counties, Alabama, on June 14, 2001 (66 FR 
32250). This mussel historically occurred throughout much of the 
Cumberlandian Region of the Tennessee and Cumberland River drainages 
(Gordon 1991). Small populations now survive in a few river reaches in 
both river systems (Gordon 1991). It was historically taken in the 
lower French Broad River near its confluence with the Holston, and a 
population still survives in the Nolichucky River, a French Broad River 
tributary, above Douglas Reservoir (Parmalee and Bogan 1998). 
Archaeological records (Parmalee 1988) of this species exist from the 
Little Pigeon River, a lower French Broad River tributary. The 
downlisting objectives for the oyster mussel (Service 2004) call for 
the reestablishment/discovery of six viable populations and one 
naturally reproducing year class within each viable population. The 
delisting objectives are to: (1) Reestablish or discover viable 
populations in nine distinct streams in the Cumberland River system, 
upper Tennessee River system, and/or lower Tennessee River system; (2) 
ensure that the species is protected from present and foreseeable 
threats to the continued existence of any population; and (3) ensure 
that two distinct naturally reproducing year classes exist within each 
of the viable populations.
    The ring pink (mussel) (Obovaria retusa) (Lamark 1819) was listed 
as an endangered species on September 29, 1989 (54 FR 40109). We 
completed a recovery plan for the species in March 1991 (Service 
1991c). It historically occurred in the Ohio River and many of its 
large tributaries in Pennsylvania, West Virginia, Ohio, Indiana, 
Illinois, Kentucky, Alabama, and Tennessee (Service 1991c). Ortmann 
(1918) and Parmalee and Bogan (1998) reported it from the lower Holston 
River, and it has been taken from an archeological site on the lower 
French Broad River (Steve Ahlstedt, USGS, pers. comm. 1998). It likely 
still survives in very low numbers in the Green River in Kentucky, the 
Tennessee River in Tennessee and Kentucky, and the Cumberland River in 
Tennessee (Service 1991c; Parmalee and Bogan 1998). In 2004 and 2005, 
three juveniles and one adult male were found in the Green River (Leroy 
Koch, USFWS, pers. comm. 2005). The adult male was taken to the 
Kentucky Department of Fish and Wildlife Resources' (KDFWR) propagation 
facility in Frankfort, Kentucky. KDFWR plans to progagate this species 
to augment existing populations and develop new ones, such as the lower 
French Broad and lower Holston Rivers. The downlisting objectives for 
the ring pink (Service 1991c) are to: (1) Protect existing populations, 
reestablish historical populations, and/or discover new populations so 
that at least six distinct populations exist; and (2) ensure that 
studies of the species' biological and ecological requirements are 
complete and that any required recovery measures developed and 
implemented from these studies are beginning to succeed. The delisting 
objectives are to: (1) Protect existing populations, reestablish 
historical populations, and/or discover new populations so that at 
least nine distinct populations exist; (2) ensure that studies of the 
species' biological and ecological requirements are complete and that 
any required recovery measures developed and implemented from these 
studies are successful; (3) ensure that no foreseeable threats exist 
which would likely impact the species' survival over a significant 
portion of its range; and (4) ensure that noticeable improvements in 
water and substratum quality have occurred where habitat has been 
degraded.
    The rough pigtoe (Pleurobema plenum) (Lea 1840) was listed as an 
endangered species on June 14, 1976 (41 FR 24062). We completed a 
recovery plan for the species in August 1984 (Service 1984h). This 
widespread species was historically known from 22 rivers in the 
Mississippi and Ohio River systems (Service 1984h), including the lower 
French Broad and Holston Rivers (Parmalee and Bogan 1998). 
Archaeological records (Parmalee 1988) of this species exist from the 
Little Pigeon River (a lower French Broad River tributary). It is 
currently known from the Green, Barren, Cumberland, Tennessee, and 
Clinch Rivers (Parmalee and Bogan 1998; Service 1984h). No downlisting 
criteria are given in this recovery plan. The delisting objectives for 
the rough pigtoe (Service 1984h) are to: (1) Protect existing 
populations, reestablish historical populations, and/or discover new 
populations so that at least six distinct populations exist; (2) ensure 
that these populations are dispersed throughout each river so it would 
be unlikely for any one event to cause the total loss of any 
population; (3) ensure that three year classes, including one year 
class 10 years old or older, have naturally produced in each 
population; (4) ensure that no foreseeable threats exist which would 
interfere with the survival of any population; and (5) ensure that 
noticeable improvements in water and substratum quality have occurred 
where habitat has been degraded.
    The shiny pigtoe (Fusconaia cor) (Conrad 1834) was listed as an 
endangered species on June 14, 1976 (41 FR 24062). We completed a 
recovery plan for the species in July 1984 (Service 1984i). We also 
established an NEP for the shiny pigtoe and 15 other federally listed 
mussels for a section of the Tennessee River below the Wilson Dam in 
Colbert and Lauderdale Counties, Alabama, on June 14, 2001 (66 FR 
32250). It historically occurred in 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 1984i). It was 
historically reported from the Tennessee River around the mouth of the 
Holston and French Broad Rivers, and it still occurs in the North Fork 
Holston River (a Holston River tributary) above Cherokee Reservoir 
(Service 1984i; Parmalee and Bogan 1998). No downlisting criteria are 
given in the recovery plan. The delisting objectives for the shiny 
pigtoe (Service 1984i) are to: (1) Restore viable populations to the 
Clinch, Elk, Powell, North Fork Holston, and Paint Rock Rivers and to 
Copper Creek; (2) reestablish or discover one viable population in one 
additional river or two river corridors; (3) ensure that the species is 
protected from present and foreseeable threats to the continued 
existence of any population; and (4) determine that noticeable 
improvements in coal-related problems and substrate quality have 
occurred in the Powell River and that no increase in coal or other 
energy-related impacts occurs in the Clinch River.
    The white wartyback (pearlymussel) (Plethobasus cicatricosus) (Say 
1829) was listed as an endangered species on June 14, 1976 (41 FR 
24062). We completed a recovery plan for the species in September 1984 
(Service 1984j). It occurred in the Ohio, Cumberland, and Tennessee 
River systems, including the lower Holston River (Parmalee and Bogan 
1998). It still persists in the middle reaches of the Tennessee River 
(Service 1984j). No downlisting criteria are given in this recovery 
plan. The delisting objectives for the white wartyback (Service 1984j) 
are to ensure that: (1) A viable population exists in the Tennessee 
River; (2) viable populations are discovered or reestablished in two 
additional rivers; (3) these populations

[[Page 34201]]

are dispersed so it is unlikely for any one event to cause the total 
loss of the species from that river system; (4) three year classes, 
including one year class 10 years old or older, have been produced in 
each reestablished population; and (5) no foreseeable threats exist 
that would interfere with the survival of any population.
    Anthony's riversnail (Athearnia anthonyi) (Budd in Redfield 1854) 
was listed as an endangered species on April 15, 1994 (59 FR 17994). We 
completed a recovery plan for the species in August 1997 (Service 
1997). We also established an NEP for Anthony's riversnail and 16 other 
federally listed mussels for a section of the Tennessee River below the 
Wilson Dam in Colbert and Lauderdale Counties, Alabama, on June 14, 
2001 (66 FR 32250). 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 into the 
lower French Broad River (Bogan and Parmalee 1983; Service 1997). 
Currently, two populations are known: one in Limestone Creek in 
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) in Tennessee and Alabama (Service 1997). The 
downlisting objectives for Anthony's riversnail (Service 1997) are to 
ensure that: (1) Four viable populations exist; (2) two naturally 
produced year classes exist in all four populations; (3) biological 
studies on the species are completed and recovery measures are 
beginning to succeed; (4) noticeable improvements in water and 
substratum quality have occurred where habitat is degraded; (5) each 
population is protected from present and foreseeable threats; and (6) 
all four populations remain stable or increase over a 10-year period. 
The delisting objectives call for the establishment of six viable 
populations in addition to criteria (2) through (5) above. 
Additionally, all six populations should remain stable or increase over 
a 15-year period.
    The duskytail darter (Etheostoma percnurum) (Jenkins 1994) was 
listed as an endangered species on April 27, 1993 (58 FR 25758). We 
completed a recovery plan for the species in March 1994 (Service 
1994a). We also established an NEP for the duskytail darter and three 
other federally listed fishes for a section of the Tellico River in 
Monroe County, Tennessee, on August 12, 2002 (67 FR 52420). Although 
likely once more widespread in the upper Tennessee and middle 
Cumberland River systems, duskytail darters were historically known 
from 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 1994a). 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 and their viability is uncertain. The Citgo Creek 
population is healthy and viable. CFI has reintroduced the species into 
Abrams Creek in Tennessee, and there are indications that it is 
becoming reestablished (Rakes and Shute 2004a). No historical records 
exist for the fish in the lower French Broad or lower Holston Rivers. 
However, we and others believe it is likely that the species once 
inhabited these waters (Rakes and Shute 1999). Our conclusion is based 
on the following facts: (1) The species was once likely much more 
widespread in the Tennessee River system; (2) the French Broad and 
Holston Rivers are tributaries to the Tennessee River between existing 
and historical populations; (3) both river reaches appear to contain 
suitable habitat for the species; and (4) there were no physical 
barriers that would have prevented the species from inhabiting these 
waters. The downlisting objectives for the duskytail darter (Service 
1994a) are to: (1) Protect and enhance existing populations and 
reestablish a population so at least three distinct viable duskytail 
darter populations exist; (2) ensure that studies of the species' 
biological and ecological requirements are complete and that any 
required recovery measures developed and implemented from these studies 
are beginning to succeed; and (3) ensure that no foreseeable threats 
exist that would likely threaten the continued existence of the three 
aforementioned viable populations. The delisting objectives are to: (1) 
Protect and enhance existing populations and reestablish populations so 
at least five distinct viable duskytail darter populations exist; (2) 
ensure that studies of the species' biological and ecological 
requirements are complete and that any required recovery measures 
developed and implemented from these studies are successful; and (3) 
ensure that no foreseeable threats exist that would likely impact the 
survival of the five aforementioned viable populations.
    The pygmy madtom (Noturus stanauli) (Etnier and Jenkins 1980) was 
listed as an endangered species on April 27, 1993 (58 FR 25758). We 
completed a recovery plan for the species in September 1994 (Service 
1994b). The pygmy madtom, which was likely more widespread in the 
Tennessee River system, has been found, and still exists, in only two 
short reaches of the Duck and Clinch Rivers in Tennessee. These river 
reaches are about 600 river miles apart. No historical records exist 
for the fish in the lower French Broad or lower Holston Rivers. 
However, we and others believe it is likely that it once inhabited 
these waters (Rakes and Shute 1999). Our conclusion is based on the 
same facts outlined above for the duskytail darter. The downlisting 
objectives for the pygmy madtom (Service 1994b) are to: (1) Protect and 
enhance existing populations so that at least two distinct viable 
populations exist; (2) ensure that studies of the species' biological 
and ecological requirements are complete and that any required recovery 
measures developed and implemented from these studies are beginning to 
succeed; and (3) ensure that no foreseeable threats exist that would 
likely impact the survival of the two aforementioned viable 
populations. No delisting criteria are given in this recovery plan.
    The slender chub (Erimystax cahni) (Hubbs and Crowe 1956) was 
listed as a threatened species on September 9, 1977, with critical 
habitat and a special rule (42 FR 45526). The critical habitat map was 
corrected on September 22, 1977 (42 FR 47840). We completed a recovery 
plan for the species in July 1983 (Service 1983a). It was historically 
known from the Clinch, Powell, and Holston Rivers (Service 1983a). The 
Holston River site is now under the Cherokee Reservoir. The species has 
not been found recently in the Powell River, and its continued 
existence in the Clinch River is represented by only one specimen taken 
in recent years (P. Rakes, pers. comm. 2002). However, collections made 
over the years have generally shown that specimens can often be taken 
only sporadically and in very small numbers. There has not been a 
concerted effort to survey for the slender chub in recent years. We 
believe that once a slender chub survey is funded, enough fish will 
exist to start a propagation program. Although the species has never 
been collected from the lower French Broad system, we and others 
believe the species once likely inhabited these waters (Rakes and Shute 
1999). Our conclusion is based on the same facts outlined above for the

[[Page 34202]]

duskytail darter. The delisting objectives for the slender chub 
(Service 1983a) are to: (1) Protect and enhance existing populations 
and/or reestablish populations so that viable populations exist in the 
Clinch and Powell Rivers; (2) ensure, through reintroductions and/or 
the discovery of new populations, that one other viable population 
exists; (3) ensure that noticeable improvements in coal-related 
problems and substrate quality have occurred in the Powell River and 
that there is no increase in coal-related sedimentation in the Clinch 
River; and (4) protect the species from threats that may adversely 
affect the survival of the populations.
    The spotfin chub (Erimonax monachus) (Cope 1868) was listed as a 
threatened species on September 9, 1977, with critical habitat and a 
special rule (42 FR 45526). The critical habitat map was corrected on 
September 22, 1977 (42 FR 47840). We completed a recovery plan for the 
species in November 1983 (Service 1983b). Two NEPs have been 
established for the spotfin chub. The first was established for the 
spotfin chub and three other federally listed fishes for a section of 
the Tellico River in Monroe County, Tennessee, on August 12, 2002 (67 
FR 52420). The second was established for the spotfin chub and the 
boulder darter (Etheostoma wapiti) for a section of Shoal Creek (a 
tributary to the Tennessee River), Lauderdale County, Alabama, and 
Lawrence County, Tennessee on April 8, 2005 (70 FR 17916). This once 
widespread species was historically known from 24 streams in the upper 
and middle Tennessee River system. Currently, it is extant in only four 
rivers/river systems (Service 1983b; P. Shute, TVA, pers. comm. 2004). 
CFI has reintroduced the species into Abrams Creek in Tennessee, and 
there are indications that it has become reestablished (Pat Rakes, CFI, 
pers. comm. 2004). Historical records exist for the species in the 
upper French Broad and upper Holston River systems, and the species 
still exists in the Holston River system above the Cherokee Reservoir 
(Service 1983b). We and our partners believe the species once likely 
inhabited the waters of the lower French Broad and lower Holston 
Rivers. Our conclusion is based on the same facts outlined above for 
the duskytail darter. The delisting objectives for the spotfin chub 
(Service 1983b) are to: (1) Protect and enhance existing populations 
and/or reestablish populations so that viable populations exist in the 
Buffalo River system, upper Little Tennessee River, Emory River system, 
and lower North Fork Holston River; (2) ensure, through reintroduction 
and/or the discovery of two new populations, that viable populations 
exist in two other rivers; and (3) ensure that no present or 
foreseeable threats exist that would likely impact the survival of any 
populations.
    The yellowfin madtom (Noturus flavipinnis) (Taylor 1969) was listed 
as a threatened species on September 9, 1977, with critical habitat and 
a special rule (42 FR 45526). The critical habitat map was corrected on 
September 22, 1977 (42 FR 47840). We completed a recovery plan for the 
species in June 1983 (Service 1983c). Two NEPs have been established 
for the yellowfin madtom. The first NEP was established for a section 
of the North Fork Holston River in Washington County, Virginia, on 
August 4, 1988 (53 FR 29335). The second NEP was established for the 
yellowfin madtom and three other federally listed fishes for a section 
of the Tellico River in Monroe County, Tennessee, on August 12, 2002 
(67 FR 52420). It was historically known from only seven streams 
(Service 1983c). Three small extant populations still exist, one each 
in Citco Creek, Copper Creek and the Powell River. The species was 
reintroduced into Abrams Creek, and the population is becoming 
reestablished (Pat Rakes, CFI, pers. comm. 2004). Reintroductions into 
the NEP section of the Tellico River are ongoing, and early results are 
promising. Although there are no historical records from the lower 
Holston River or French Broad River system, we and others believe that 
the species once likely inhabited these river reaches (Rakes and Shute 
1999). Our conclusion is based on the same facts outlined above for the 
duskytail darter. The delisting objectives for the yellowfin madtom 
(Service 1983c) are to: (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) reestablish or 
discover viable populations in two additional rivers; (3) ensure that 
noticeable improvements in coal-related problems and substrate quality 
have occurred in the Powell River; and (4) ensure that each population 
is protected from present and foreseeable threats.
    The recovery objectives in the recovery plans for all of the 21 
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 historical habitat. The number 
of secure, viable populations needed to achieve recovery (existing and 
restored) varies from species to species, depending on the extent of 
the species' probable former range (i.e., historically widespread 
species require a greater number of populations for recovery than 
species with historically more restricted distributions). However, the 
reestablishment of historical populations is a critical component in 
the recovery of all these species.
    4. Reintroduction Site: At the request of the TVA and the TWRA, 
biologists from the Service, TVA, USGS, TWRA, and Alabama Game and Fish 
Division evaluated Tennessee River basin rivers for mollusk recovery 
potential. The biologists rated the French Broad River downstream of 
Douglas Dam as having a high potential for mollusk recovery and the 
Holston River below Cherokee Dam as having a medium potential primarily 
due to water quality and flow improvements to the tailwaters. In 
letters dated May 28, 1998, and June 29, 1998, the TWRA's Executive 
Director recommended that we consider reintroducing endangered mussels 
into the French Broad River below Douglas Dam and the Holston River 
below Cherokee Dam under NEP status. In an October 30, 1998, letter, 
the TWRA provided us with a list of mussel species (compiled by 
Tennessee mussel experts) that historically or probably occurred in 
these river reaches. In a December 9, 1998, letter to us, the TVA (the 
managers of the dams above the proposed NEP for hydroelectric power, 
flood control, and recreation) expressed support for mussel recovery 
efforts in the Tennessee River valley streams and tailwaters.
    Based on successes in Abrams Creek and the North Fork Holston River 
(Washington County, Virginia) and CFI's intimate knowledge of nongame 
fishes and their habitat needs, we contracted with them to survey the 
lower French Broad River and determine if we could expand our listed 
fish recovery efforts into this major Tennessee River tributary. CFI 
determined that the lower French Broad River contains potential 
suitable habitat for the reintroduction of the duskytail darter, pygmy 
madtom, spotfin chub, and yellowfin madtom (Rakes and Shute 1999). 
Additionally, Rakes and Shute (CFI, pers. comm. 2004) stated that the 
lower Holston River below Cherokee Dam could potentially support a 
reintroduced population of these fishes and that both river reaches 
contain potential habitat for slender chub reintroductions.
    In a May 17, 1999, letter to us, the TWRA's Executive Director 
stated that he concurred with the conclusions in the report prepared by 
Rakes and Shute

[[Page 34203]]

(1999). He recommended that we consider designating NEP status in the 
lower French Broad and Holston Rivers for the eventual reintroduction 
of these five fish species.
    We previously established NEPs for the birdwing pearlymussel, 
cracking pearlymussel, Cumberland bean, Cumberlandian combshell, 
Cumberland monkeyface, fine-rayed pigtoe, oyster mussel, shiny pigtoe, 
and Anthony's riversnail in the free-flowing reach of the Tennessee 
River below the Wilson Dam in Colbert and Lauderdale Counties, Alabama 
(66 FR 32250). In October 2003, 80 each of birdwing pearlymussels, 
oyster mussels, and dromedary mussels (dromedary mussels are not part 
of the proposed Lower French Broad/Lower Holston NEP) were placed in 
the NEP area below Wilson Dam. The status of these reintroduced mussels 
was checked during the summer of 2004. While it is too early to 
determine whether or not the reintroduced individuals will become an 
established population, a significant number of them have survived thus 
far, indicating that the reintroduction has a good chance of being 
successful. A total of 2,370 Anthony's riversnails have also been 
placed in the NEP area and will be monitored this spring. Establishment 
of viable populations of these species in both the Tennessee River 
below the Wilson Dam under the existing regulation and in the lower 
French Broad and lower Holston Rivers, if this proposed regulation is 
finalized, is an objective in the recovery of these species. However, 
it will take several years of monitoring to fully evaluate if 
populations of these species (and the other species) have become 
established and remain viable in these historic river reaches.
    Based on the presence of suitable physical habitat, the positive 
response of endemic aquatic species to habitat improvements, improved 
quality of the water being released from the dams, the recommendations 
of the TWRA's Executive Director, and the evaluation of biologists 
familiar with the lower French Broad and Holston Rivers, we believe the 
French Broad River (downstream of Douglas Dam) and the Holston River 
(downstream of Cherokee Dam) are suitable for the reintroduction of 
these 21 species with NEP status.
    We propose to reintroduce these 21 species into historical habitat 
of the free-flowing reach of the French Broad River from RM 22.3 (35.7 
km) (approximately 10 RM (16 km) below Douglas Dam), Knox and Sevier 
Counties, Tennessee, to the backwaters of Fort Loudoun Reservoir, 
upstream of, but near the confluence with the Holston River, Knox 
County, Tennessee, and in the free-flowing reach of the Holston River, 
Knox, Grainger, and Jefferson Counties, Tennessee, from above the 
backwaters of Fort Loudoun Reservoir just upstream of its confluence 
with the French Broad River, upstream to RM 42.3 (67.7 km) 
(approximately 10 RM (16 km) below Cherokee Dam). These river reaches 
contain the most suitable habitat for the reintroductions. None of 
these 21 species are known to currently exist in these river reaches, 
in tributaries to these reaches, or have free access to these reaches.
    5. Reintroduction Procedures: The dates for these proposed 
reintroductions, the actual number of individuals to be released, and 
the specific release sites cannot be determined at this time.
    Mussel propagation and juvenile rearing technology are currently 
being refined, and juvenile mussels of some species could be available 
for reintroduction soon after a NEP rule is finalized. Individual 
endangered mussels that would be used for these proposed 
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. The parent stock for mussel propagation 
will come from existing wild populations in the Tennessee, Cumberland, 
and Ohio Rivers, and in most cases, adults will be returned to the 
capture site. Under some circumstances, adult endangered mussels could 
be permanently relocated (i.e., kept in captivity for their entire 
life) to propagation facilities or moved directly into the NEP area 
after being used for propagation purposes. A permit under section 10 of 
the ESA would be needed for handling and maintaining threatened and 
endangered species in captivity.
    Anthony's riversnails will be collected for the proposed 
reintroductions from a large naturally reproducing population located 
in the Tennessee River, Jackson County, Alabama, and Marion County, 
Tennessee, and relocated directly into the NEP.
    Individual fishes that would be used for these proposed 
reintroductions will be primarily artificially propagated juveniles. 
However, it is possible that wild adult stock of some fishes could also 
be released into the NEP area. Propagation and juvenile rearing 
technology is available for the spotfin chub, slender chub, and 
duskytail darter. Limited numbers of yellowfin madtom juveniles can be 
reared using eggs and larvae taken from the wild, and some pygmy 
madtoms can be propagated. However, madtom propagation technology, 
which is needed to produce large numbers of juvenile madtoms, needs 
further development. The parental stock for fish propagation and 
reintroductions will come from wild populations. Duskytail darters will 
likely come from Little River in Tennessee. Yellowfin madtoms will 
likely come from the Powell River in Tennessee. Spotfin chubs will 
likely come from upstream in the Holston River system above Cherokee 
Dam in Tennessee. Pygmy madtoms will come from the Clinch River in 
Tennessee. Slender chubs will come from the upper Tennessee River basin 
in Tennessee and Virginia. In some cases, the parents will be returned 
to the wild population from which they were taken. However, in most 
cases, adult fishes will be permanently relocated to propagation 
facilities.
    To help ensure the genetic integrity of the reintroduced species 
and to match as closely as possible the genetic composition of the 
historical populations, we will observe the following guidelines: (1) 
To reduce homozygosity, at least 10 gravid female mussels, 10 fishes, 
and 10 snails, whenever possible, will be used as parental stock over 
the life of the reintroduction project (if this number cannot be 
obtained for very rare species, we will use whatever number is 
available); and (2) to match as closely as possible the genetic 
composition of the species that once existed in the lower French Broad 
and Holston Rivers, the adults and brood stock for the proposed 
reintroductions will be collected using the following criteria (in 
order of decreasing importance): (a) Donor animals will be collected 
from populations in adjacent stream/tributary systems in the same 
physiographic province, (b) donor animals will be collected from 
populations in adjacent stream/tributary systems in an adjacent 
physiographic province, and (c) donor animals will be collected from 
the only population with a sufficient number of adults to produce 
progeny.
    The permanent removal of adults (mollusks and fishes) from the wild 
for their use in proposed reintroduction efforts is allowable when the 
following conditions exist: (1) Sufficient numbers of adults 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) the 
population is not reproducing (see 50 CFR 17.22). For these 21 species, 
it is

[[Page 34204]]

most likely that adults will be permanently removed because of the 
first condition. However, fewer adults will be needed for propagation 
than for actually moving individuals from a donor population to the 
NEP. An enhancement of propagation or survival permit under section 
10(a)(1)(A) of the Act must be issued before any take occurs. We will 
coordinate these proposed actions with the Service's appropriate lead 
regions and State natural resources agencies.
    6. Status of Reintroduced Populations: Previous translocations, 
propagations, and reintroductions of many of these species have not 
affected their wild populations. The use of artificially propagated 
juveniles will further reduce the potential effects on wild populations 
since fewer adults would be needed from the donor population. If any of 
the reintroduced populations become established and are subsequently 
lost, the likelihood of the species' survival in the wild would not be 
appreciably reduced because either the reintroduced individuals will be 
from propagated stock or the donor population will be of sufficient 
size to handle movement of adults. Therefore, we have determined that 
the reintroduced populations of these 21 species in the lower French 
Broad and Holston Rivers are not essential to the continued existence 
of these species. 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 proposed reintroductions is 
not likely to jeopardize the continued existence of the species.
    7. Location of Reintroduced Population: The NEP area, which 
encompasses all the sites for the proposed reintroductions, will extend 
from the base of Douglas Dam down the French Broad River, Knox and 
Sevier Counties, Tennessee, to its confluence with the Holston River; 
then up the Holston River, Knox, Grainger, and Jefferson Counties, 
Tennessee, to the base of Cherokee Dam; and the lower 5 RM (8 km) of 
all tributaries that enter these river reaches.
    Section 10(j) of the Act requires that an experimental population 
be geographically separate from other wild populations of the same 
species. The proposed NEP area is totally isolated from existing 
populations of these species by large reservoirs, and none of these 
species are known to occur in, or are likely to move through, large 
reservoir habitat. Therefore, these reservoirs will act as barriers to 
the expansion of these species into other sections of the Tennessee 
River basin and will ensure that the proposed NEPs remain 
geographically isolated and easily distinguishable from existing wild 
populations. Based on the habitat requirements of these mollusks and 
fishes, we do not expect them to become established outside the 
proposed NEP area. However, if any of the reintroduced species move 
outside the designated NEP area, then the animals would be considered 
to have come from the NEP area. In that case, we may propose to amend 
this rule to enlarge the boundaries of the NEP area to include the 
entire range of the expanded population(s).
    The designated NEP area for the duskytail darter, spotfin chub, and 
yellowfin madtom in the Tellico River (67 FR 52420) does not overlap or 
interfere with this proposed NEP area for the lower French Broad and 
lower Holston Rivers in Tennessee because they are geographically 
separated river reaches. The designated NEP for the spotfin chub in 
Shoal Creek, Tennessee, (67 FR 17916) does not overlap or interfere 
with this proposed NEP area for the lower French Broad and lower 
Holston rivers in Tennessee because they are geographically separated 
river reaches. The designated NEP for the spotfin chub in Shoal Creek, 
Tennessee, (67 FR 17916) does not overlap or interfere with this 
proposed NEP area for the lower French Broad and lower Holston rivers 
in Tennessee because they are geographically separated river reaches.
    Similarly, the NEP for the yellowfin madtom in the North Fork 
Holston River (53 FR 29335) is separated by reservoirs and long 
stretches of river that do not contain yellowfin madtoms or their 
habitat and acts as effective barriers between madtom populations in 
the North Fork Holston River and the proposed NEP in the lower Holston 
River.
    The designated NEP area for the birdwing pearlymussel, cracking 
pearlymussel, Cumberland bean, Cumberlandian combshell, Cumberland 
monkeyface, dromedary pearlymussel, fine-rayed pigtoe, oyster mussel, 
shiny pigtoe, tubercled blossom, and Anthony's riversnail in the 
Tennessee River below the Wilson Dam (66 FR 32250) in Alabama does not 
overlap or interfere with this proposed NEP area for the lower French 
Broad and lower Holston Rivers in Tennessee because they are 
geographically separated river reaches with several reservoirs between 
them.
    Critical habitat has been designed for Cumberlandian combshell (69 
FR 53136), oyster mussel (69 FR 53136), slender chub (42 FR 45526), 
spotfin chub (42 FR 45526), and yellowfin madtom (42 FR 45526); 
however, none of these designations include the proposed NEP area. 
Critical habitat has not been designated for the 16 other species 
identified in this rule. Section 10(j)(2)(C)(ii) of the Act states that 
critical habitat shall not be designated for any experimental 
population that is determined to be nonessential. Accordingly, we 
cannot designate critical habitat in areas where we have already 
established, by regulation, a nonessential experimental population.
    8. Management: The aquatic resources in the proposed reintroduction 
area are managed by the TWRA and the TVA. Multiple-use management of 
these waters will not change as a result of the NEP designation. The 
NEP designation will not require the TWRA or the TVA to specifically 
manage for reintroduced species in the NEP area. Private landowners 
within the NEP area will still be allowed to continue all legal 
agricultural and recreational activities. Because of the substantial 
regulatory relief provided by NEP designations, we do not believe these 
proposed reintroductions will conflict with existing human activities 
or hinder public use of the NEP area.
    The Service, State, TVA, and CFI staff will all be involved in the 
management of the reintroductions. They will closely coordinate on 
reintroductions, monitoring, coordination with landowners and land 
managers, and public awareness, among other tasks necessary to ensure 
successful reintroductions of these species.
    (a) Mortality: The regulations implementing the Act define 
``incidental take'' as take that is incidental to, and not the purpose 
of, the carrying out of an otherwise lawful activity (50 CFR 17.3) such 
as recreation (e.g., fishing, boating, wading, trapping, or swimming), 
forestry, agriculture, and other activities that are in accordance with 
Federal, Tribal, State, and local laws and regulations. A person may 
take a listed species within the experimental population area provided 
that the take is unintentional and is not due to negligent conduct. 
However, when we have evidence of knowing (i.e., intentional) take of 
the listed species within the NEP, we will refer matters to the 
authorities for appropriate action. We expect levels of incidental take 
to be low since the reintroduction is compatible with existing human 
use activities and practices for the area.
    (b) Special handling: Service employees and authorized agents 
acting on their behalf may handle these 21 species for scientific 
purposes; to relocate them to avoid conflict with

[[Page 34205]]

human activities; for recovery purposes; to relocate them to other 
reintroduction sites; to aid sick or injured individuals; and to 
salvage dead individuals.
    (c) Coordination with landowners and land managers: The Service and 
cooperators identified issues and concerns associated with the proposed 
reintroduction of these 21 species before preparing this proposed rule. 
The proposed reintroduction also has been discussed with potentially 
affected State agencies, businesses, and landowners within the proposed 
release area. Affected State agencies, businesses, landowners, and land 
managers, including the TWRA and TVA, have indicated support for the 
reintroduction if the species released in the proposed experimental 
population area are established as an NEP and if aquatic resource 
activities in the proposed experimental population area are not 
constrained.
    (d) Potential for conflict with human activities: We do not believe 
these proposed reintroductions will conflict with existing or proposed 
human activities or hinder public use of the NEP area within the French 
Broad and Holston Rivers. Experimental population special rules contain 
all the prohibitions and exceptions regarding the taking of individual 
animals. These special rules are compatible with routine human 
activities in the reintroduction area.
    (e) Monitoring: After the initial stocking of these species, we 
will monitor annually their presence or absence and document any 
spawning behavior or young-of-the-year that might be present. This 
monitoring will be conducted primarily by snorkeling or seining and 
will be accomplished by contracting with the appropriate species 
experts. Annual reports will be produced detailing the stocking rates 
and monitoring activities that took place during the previous year. We 
will also fully evaluate these reintroduction efforts after 5 and 10 
years to determine whether to continue or terminate the reintroduction 
efforts.
    (f) Public awareness and cooperation: On January 12, 1999, we 
mailed letters to 47 potentially affected Congressional offices, 
Federal and State agencies, local governments, and interested parties 
to notify them that we were considering proposing NEP status in the 
lower French Broad and Holston Rivers for the 16 mollusks (at the time 
of this letter, we had not yet decided to propose the fish 
reintroductions). We received one written response. The Tennessee 
Department of Environment and Conservation supported the reintroduction 
of the mollusks under NEP status. It stated that NEP status represents 
an appropriate step toward promoting the species' recovery while 
protecting the rights and privileges of Tennessee's citizens.
    We did not circulate a similar notice regarding the potential of 
proposing NEP status for the five fishes. The report on the area's 
suitability for fish reintroductions (Rakes and Shute 1999) was not 
available when the mollusk notice was circulated. However, since we 
received only one comment on the mollusk notice, the TWRA and the TVA 
both support the mollusk and fish reintroductions under NEP status, and 
the inclusion of these fishes in the proposal would not result in any 
additional impact to public or government agency use of the river, we 
did not believe it was necessary to circulate a separate notice 
regarding these fishes. In any case, through this proposal, the public 
can comment on the proposed NEP designation for these fishes.
    Through this notice, we are informing the general public of the 
importance of this reintroduction project in the overall recovery of 
these 21 species. The designation of the NEP for these reaches of the 
French Broad and Holston Rivers would provide greater flexibility in 
the management of these reintroduced species. The NEP designation is 
necessary to secure needed cooperation of the States, Tribes, 
landowners, agencies, and other interests in the affected area.

Finding

    Based on the above information, and using the best scientific and 
commercial data available (in accordance with 50 CFR 17.81), the 
Service finds that releasing the Appalachian monkeyface, birdwing 
pearlymussel, cracking pearlymussel, Cumberland bean, Cumberlandian 
combshell, Cumberland monkeyface, dromedary pearlymussel, fanshell, 
fine-rayed pigtoe, orangefoot pimpleback, oyster mussel, ring pink, 
rough pigtoe, shiny pigtoe, white wartyback, Anthony's riversnail, 
duskytail darter, pygmy madtom, slender chub, spotfin chub, and 
yellowfin madtom into the lower French Broad and lower Holston Rivers 
Experimental Population Area under a Nonessential Experimental 
Population designation will further the conservation of these species.

Other Changes to the Regulations

    In addition, we are making a minor technical correction to the 
existing regulation regarding the birdwing pearlymussel. The birdwing 
pearly mussel was listed on June 14, 1976 (41 FR 24062), under the 
scientific name of Conradilla caelata. The current list of endangered 
and threatened species at 50 CFR 17.11(h) uses the scientific name of 
Conradilla caelata for the birdwing pearlymussel. In the latest edition 
of the Common and Scientific Names of Aquatic Invertebrates from the 
United States and Canada published by the American Fisheries Society, 
the scientific name has been changed to Lemiox rimosus (Turgeon et al. 
1998). This name change has occurred in a peer-reviewed publication and 
has acceptance in the scientific community. Therefore, we are 
correcting the text for the current list of endangered and species at 
50 CFR 17.11(h) and the existing experimental population in the free-
flowing reach of the Tennessee River below Wilson Dam in Alabama at 50 
CFR 17.85 by changing the scientific name for the birdwing pearlymussel 
from Conradilla caelata to Lemiox rimosus (see Regulation Promulgation 
section below).
    We are also making editorial changes to 50 CFR 17.84(m) and 
17.84(o). These paragraphs currently provide NEP information for 
multiple species; Sec.  17.84(m) sets forth the Tellico River NEP area 
for spotfin chub, duskytail darter, and smoky madtom, while Sec.  
17.84(o) sets forth the Shoal Creek NEP area for spotfin chub and 
boulder darter. In this proposal, we reformat this information into 
species-specific paragraphs, so that each fish species has its own NEP 
paragraph. These changes are nonsubstantive; no existing NEP areas 
would change as a result of the reformatting. The changes are simply 
for clarity and consistency, and to make information easier for the 
public to find.
    Finally, we are also making editorial changes to replace the 
introductory text at 50 CFR 17.85(a) with a table for clarity. Again, 
this is a nonsubstantive change; no existing NEP areas would change as 
a result of the reformatting.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
parties concerning this proposed rule. If you wish to comment on this 
proposed rule, you may submit your comments and materials concerning 
this proposal by any one of several methods (see ADDRESSES). All 
submissions received must include the agency name and RIN for this 
rulemaking. Please include your name

[[Page 34206]]

and return address in the body of your message.
    Comments submitted electronically should be in the body of the e-
mail message itself or attached as a text file (ASCII), and should not 
use special characters or encryption. Please also include ``Attn: 
French Broad/Holston Rivers NEP,'' your full name, and your return 
address in your e-mail message. In the event that our Internet 
connection is not functional, please contact the Service by the 
alternative methods mentioned in the ADDRESSES section. Our practice is 
to make comments, including names and home addresses of respondents, 
available for public review during regular business hours. Respondents 
may request that we withhold their home address, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold a respondent's identity, as allowable by law. If you 
wish for us to withhold your name and/or address, you must state this 
request prominently at the beginning of your comment. However, we will 
not consider anonymous comments. To the extent consistent with 
applicable law, we will make all submissions from organizations or 
businesses available for public inspection in their entirety. Comments 
and materials received will be available for public inspection, by 
appointment, during normal business hours at the Tennessee Field Office 
(see ADDRESSES). Copies of this proposed rule are available on the 
Internet at http://cookeville.fws.gov.

Peer Review

    In conformance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we will seek the expert opinions of at least three 
appropriate and independent specialists regarding this proposed rule. 
The purpose of such review is to ensure that our NEP designation is 
based on scientifically sound data, assumptions, and analyses. We will 
send copies of this proposed rule to these peer reviewers immediately 
following publication in the Federal Register. We will invite these 
peer reviewers to comment, during the public comment period, on the 
specific assumptions and conclusions regarding the proposed NEP.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    You may request a public hearing on this proposal. Requests must be 
made in writing at least 15 days prior to the close of the public 
comment period and sent to the Field Supervisor for the U.S. Fish and 
Wildlife Service in Tennessee (see ADDRESSES and DATES sections).

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    In accordance with the criteria in Executive Order 12866, this 
proposed rule to designate NEP status for and reintroduce 15 endangered 
mussels, 1 endangered aquatic snail, 2 endangered fishes, and 3 
threatened fishes in the free-flowing reach of the French Broad River 
below Douglas Dam to its confluence with the Holston River, Knox 
County, Tennessee, and in the free-flowing reach of the Holston River 
below Cherokee Dam to its confluence with the French Broad River 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 or more on the economy and will not have an adverse effect 
on any economic sector, productivity, competition, jobs, the 
environment, or other units of government. The area affected by this 
rule consists of a very limited and discrete geographic segment of the 
lower French Broad River (about 32 RM (51 km)) and the lower Holston 
River (about 52 RM (83 km)) in eastern Tennessee. Therefore, a cost-
benefit and economic analysis will not be required.
    We do not expect this rule to have significant impacts to existing 
human activities (e.g., hydroelectric power generation, flood control, 
agricultural activities, fishing, boating, wading, swimming, trapping) 
in the watershed. These rivers already have populations of the 
federally listed threatened snail darter (Percina tanasi) and 
endangered pink mucket mussel (Lampsilis abrupta), both of which 
require Federal agencies to consult with us under section 7 of the Act 
if their activities may are adversely affect these species. The 
reintroduction of these federally listed species, which will be 
accomplished under NEP status with its associated regulatory relief, is 
not expected to impact Federal agency actions. Because of the 
substantial regulatory relief, we do not believe the proposed 
reintroduction of these species will conflict with existing or proposed 
human activities or hinder public use of the French Broad or Holston 
Rivers.
    This rule will not create inconsistencies with other agencies' 
actions or otherwise interfere with an action taken or planned by 
another agency. Federal agencies most interested in this rulemaking are 
primarily the Environmental Protection Agency and TVA.
    This rule will not materially affect entitlements, grants, user 
fees, or loan programs, or the rights and obligations of their 
recipients. Because there are no expected impacts or restrictions to 
existing human uses of the French Broad and Holston Rivers 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 does not raise novel legal or policy issues. Since 1984, 
we have promulgated section 10(j) rules for many other listed 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.). 
Although most of the identified entities are small businesses engaged 
in activities along the affected reaches of these rivers, this 
rulemaking is not expected to have any significant impact on private 
activities in the affected area. The designation of a NEP in this rule 
will significantly reduce the regulatory requirements regarding the 
reintroduction of these species, will not create inconsistencies with 
other agencies' actions, and will not conflict with existing or 
proposed human activity, or Federal, State, or public use of the land 
or aquatic resources.

Small Business Regulatory Enforcement Fairness Act

    This proposed 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. It will 
not cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or 
geographical regions. This rule does not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based enterprises to 
compete with foreign-based enterprises. The intent of this special rule 
is to facilitate and continue the existing commercial activity while 
providing for the conservation of

[[Page 34207]]

species through reintroduction into suitable habitat.

Unfunded Mandates Reform Act

    The proposed NEP designation will not place any additional 
requirements on any city, county, or other local municipality. The 
TWRA, which manages the fishes and mollusks in the French Broad and 
Holston Rivers, requested that we consider these proposed 
reintroductions under a NEP designation. However, they will not be 
required to specifically manage for any reintroduced species. 
Accordingly, this proposed rule will not ``significantly or uniquely'' 
affect small governments. A Small Government Agency Plan is not 
required since this rulemaking does not require any action to 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 (E.O. 12630)

    In accordance with Executive Order 12630, the 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 mollusks and 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 
species will conflict with existing or proposed human activities or 
hinder public use of the French Broad and Holston River systems.
    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 or aquatic resources. This rule will 
substantially advance a legitimate government interest (conservation 
and recovery of listed freshwater mussel, snail, and fish species) and 
will not present a barrier to all reasonable and expected beneficial 
use of private property.

Federalism (E.O. 13132)

    In accordance with Executive Order 13132, this rule does not have 
significant federalism effects to warrant the preparation of a 
federalism assessment. 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 Tennessee on the proposed 
reintroduction of these species into the French Broad and Holston River 
systems. The State wildlife agency in Tennessee (TWRA) requested that 
we undertake this rulemaking in order to assist the State in the 
restoration and recovery of its native aquatic fauna. Achieving the 
recovery goals for these species will contribute to their eventual 
delisting and their return to State management. No intrusion on State 
policy or administration is expected; roles and 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 
(TWRA). We have cooperated with the TWRA in the preparation of this 
proposed rule. 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.

Civil Justice Reform

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

Paperwork Reduction Act

    Office of Management and Budget (OMB) regulations at 5 CFR 1320, 
which implement provisions of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.), require that Federal agencies obtain approval from OMB 
before collecting information from the public. 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. This proposed rule does not include any new collections 
of information that require approval by OMB under the Paperwork 
Reduction Act.

National Environmental Policy Act (NEPA)

    We have determined that the issuance of this proposed rule is 
categorically excluded from National Environmental Policy Act 
requirements (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 229511), Executive Order 13175, and the Department 
of the Interior Manual Chapter 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. This rule is not 
expected to significantly affect energy supplies, distribution, and 
use. Therefore, this action is not a significant energy action and no 
Statement of Energy Effects is required.

Clarity of This Regulation (E.O. 12866)

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this rule easier to understand, including answers to questions such as 
the following: (1) Are the requirements in the rule clearly stated? (2) 
Does the rule contain technical language or jargon that interferes with 
its clarity? (3) Does the format of the rule (grouping and order of 
sections, use of headings, paragraphing, etc.) aid or reduce its 
clarity? (4) Would the rule be easier to understand if it were divided 
into more (but shorter) sections? (5) Is the description of the rule in 
the SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the rule? (6) What else could we do to make the rule 
easier to understand?
    Send your comments concerning how we could make this rule easier to 
understand to: Office of Regulatory Affairs, Department of the 
Interior,

[[Page 34208]]

Room 7229, 1849 C Street, NW., Washington, DC 20240. You may also e-
mail your comments to: [email protected].

References Cited

    A complete list of all references cited herein is available, upon 
request, from the Cookeville, TN Field Office (see ADDRESSES section).

Author

    The principal author of this proposed rule is Timothy Merritt, 
Cookeville Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. Amend Sec.  17.11(h), the List of Endangered and Threatened 
Wildlife, as follows:
    a. Under the heading ``FISHES,'' by revising the entries for 
``Chub, slender''; ``Chub, spotfin''; ``Darter, duskytail''; ``Madtom, 
pygmy''; ``Madtom, smoky''; and ``Madtom, yellowfin'' to read as set 
forth below;
    b. Under the heading ``CLAMS,'' by revising the entries for ``Bean, 
Cumberland (pearlymussel)''; ``Combshell, Cumberlandian''; 
``Fanshell''; ``Monkeyface, Appalachian (pearlymussel)''; ``Monkeyface, 
Cumberland (pearlymussel)''; ``Mussel, oyster''; ``Pearlymussel, 
birdwing''; ``Pearlymussel, cracking''; ``Pearlymussel, dromedary''; 
``Pigtoe, fine-rayed''; ``Pigtoe, rough''; ``Pigtoe, shiny''; 
``Pimpleback, orangefoot (pearlymussel)''; ``Pink, ring (mussel)''; and 
``Wartyback, white (pearlymussel)'' to read as set forth below; and
    c. Under the heading ``SNAILS,'' by revising the entry for 
``Riversnail, Anthony's'' to read as set forth below.


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, slender....................  Erimystax cahni.....  U.S.A. (TN, VA)....  Entire, except       T                        28     17.95(e)     17.44(c)
                                                                               where listed as an
                                                                               experimental
                                                                               population.
 Do..............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.84(r)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Chub, spotfin (=turquoise shiner)  Erimonax monachus...  U.S.A. (AL, GA, NC,  Entire, except       T                        28     17.95(e)     17.44(c)
                                                          TN, VA).             where listed as an
                                                                               experimental
                                                                               population.

[[Page 34209]]

 
 Do..............................  ......do............  ......do...........  U.S.A. (TN--The      XN                      732           NA     17.84(m)
                                                                               Tellico River from
                                                                               the backwaters of
                                                                               theTellico
                                                                               Reservoir (about
                                                                               Tellico River mile
                                                                               19 (30.4 km))
                                                                               upstream to
                                                                               Tellico River mile
                                                                               33 (52.8 km) in
                                                                               Monroe County.).
 Do..............................  ......do............  ......do...........  U.S.A. (AL, TN--     XN                      747           NA     17.84(m)
                                                                               Shoal Creek, from
                                                                               Shoal Creek mile
                                                                               41.7 (66.7 km) at
                                                                               the mouth of Long
                                                                               Branch, Lawrence
                                                                               County, TN,
                                                                               downstream to the
                                                                               backwaters of
                                                                               Wilson Reservoir
                                                                               (Shoal Creekmile
                                                                               14 (22 km)) at
                                                                               Goose Shoals,
                                                                               Lauderdale County,
                                                                               AL, including the
                                                                               lower 5 miles (8
                                                                               km) of all
                                                                               tributaries that
                                                                               enter this reach.).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.84(m)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Darter, duskytail................  Etheostoma percnurum  U.S.A. (TN, VA)....  Entire, except       E                       502           NA           NA
                                                                               where listed as an
                                                                               experimental
                                                                               population.
 Do..............................  ......do............  ......do...........  U.S.A. (TN--The      XN                      732           NA     17.84(p)
                                                                               Tellico River from
                                                                               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.).

[[Page 34210]]

 
 Do..............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.84(p)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Madtom, pygmy....................  Noturus stanauli....  U.S.A. (TN)........  Entire, except       E                       502           NA           NA
                                                                               where listed as an
                                                                               experimental
                                                                               population.
 Do..............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.84(s)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Madtom, smoky....................  Noturus baileyi.....  U.S.A. (TN)........  Entire, except       E                       163     17.95(e)           NA
                                                                               where listed as an
                                                                               experimental
                                                                               population.
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN                      732           NA     17.84(q)
                                                                               TheTellico River
                                                                               from 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.).

[[Page 34211]]

 
Madtom, yellowfin................  Noturus flavipinnis.  U.S.A. (TN, VA)....  Entire, except       T                        28     17.95(e)     17.44(c)
                                                                               where listed as an
                                                                               experimental
                                                                               population.
 Do..............................  ......do............  ......do...........  U.S.A. (TN, VA--N.   XN                      317           NA     17.84(e)
                                                                               Fork Holston River
                                                                               Watershed, VA, TN;
                                                                               S. Fork Holston
                                                                               River, upstream to
                                                                               Ft. Patrick Henry
                                                                               Dam, TN; Holston
                                                                               River, downstream
                                                                               to John Sevier
                                                                               Detention Lake
                                                                               Dam, TN; and all
                                                                               tributaries
                                                                               thereto.).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--The      XN                      732           NA     17.84(e)
                                                                               Tellico River from
                                                                               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.).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.84(e)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
              Clams
 
                                                                      * * * * * * *
Bean, Cumberland (pearlymussel)..  Villosa trabalis....  U.S.A. (AL, KY, TN,  NA.................  E                        15           NA           NA
                                                          VA).

[[Page 34212]]

 
 Do..............................  ......do............  ......do...........  U.S.A. (AL--The      XN                      709           NA     17.85(a)
                                                                               free-flowing reach
                                                                               of the Tennessee
                                                                               River from the
                                                                               base of Wilson Dam
                                                                               downstream to the
                                                                               backwaters of
                                                                               Pickwick Reservoir
                                                                               (about 12 river
                                                                               mile (RM) (19
                                                                               km)), and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to this reach in
                                                                               Colbert and
                                                                               Lauderdale
                                                                               Counties.).
Do...............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Combshell, Cumberlandian.........  Epioblasma brevidens  U.S.A. (AL, KY, MS,  NA.................  E                       602     17.95(f)           NA
                                                          TN, VA).
 Do..............................  ......do............  ......do...........  U.S.A. (AL--The      XN                      709           NA     17.85(a)
                                                                               free-flowing reach
                                                                               of the Tennessee
                                                                               River from the
                                                                               base of Wilson Dam
                                                                               downstream to the
                                                                               backwaters of
                                                                               Pickwick Reservoir
                                                                               (about 12 river
                                                                               mile (RM) (19
                                                                               km)), and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to this reach in
                                                                               Colbert and
                                                                               Lauderdale
                                                                               Counties.).

[[Page 34213]]

 
 Do..............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Fanshell.........................  Cyprogenia            U.S.A. (AL, IL, IN,  NA.................  E                       391           NA           NA
                                    stegaria(=irrorata).  KY, OH, PA, TN,
                                                          VA, WV).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Monkeyface, Appalachian            Quadrula sparsa.....  U.S.A. (TN, VA)....  NA.................  E                        15           NA           NA
 (pearlymussel).

[[Page 34214]]

 
 Do..............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
Monkeyface, Cumberland             Quadrula intermedia.  U.S.A. (AL, TN, VA)  NA.................  E                        15           NA           NA
 (pearlymussel).
 Do..............................  ......do............  ......do...........  U.S.A. (AL--The      XN                      709           NA     17.85(a)
                                                                               free-flowing reach
                                                                               of the Tennessee
                                                                               River from the
                                                                               base of Wilson Dam
                                                                               downstream to the
                                                                               backwaters of
                                                                               Pickwick Reservoir
                                                                               (about 12 river
                                                                               mile (RM)(19 km)),
                                                                               and the lower 5 RM
                                                                               (8 km) of all
                                                                               tributaries to
                                                                               this reach in
                                                                               Colbert and
                                                                               Lauderdale
                                                                               Counties.).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Mussel, oyster...................  Epioblasma            U.S.A. (AL, GA, KY,  NA.................  E                       602     17.95(f)           NA
                                    capsaeformis.         MS, NC, TN, VA).

[[Page 34215]]

 
 Do..............................  ......do............  ......do...........  U.S.A. (AL--The      XN                      709           NA     17.85(a)
                                                                               free-flowing reach
                                                                               of the Tennessee
                                                                               River from the
                                                                               base of Wilson Dam
                                                                               downstream to the
                                                                               backwaters of
                                                                               Pickwick Reservoir
                                                                               (about 12 river
                                                                               mile (RM)(19 km)),
                                                                               and the lower 5 RM
                                                                               (8 km) of all
                                                                               tributaries to
                                                                               this reach in
                                                                               Colbert and
                                                                               Lauderdale
                                                                               Counties.).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Pearlymussel, birdwing...........  Lemiox rimosus......  U.S.A. (AL, TN, VA)  NA.................  E                        15           NA           NA
 Do..............................  ......do............  ......do...........  U.S.A. (AL--The      XN                      709           NA     17.85(a)
                                                                               free-flowing reach
                                                                               of the Tennessee
                                                                               River from the
                                                                               base of Wilson Dam
                                                                               downstream to the
                                                                               backwaters of
                                                                               Pickwick Reservoir
                                                                               (about 12 river
                                                                               mile (RM)(19 km)),
                                                                               and the lower 5 RM
                                                                               (8 km) of all
                                                                               tributaries to
                                                                               this reach in
                                                                               Colbert and
                                                                               Lauderdale
                                                                               Counties.).

[[Page 34216]]

 
 Do..............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
Pearlymussel, cracking...........  Hemistena lata......  U.S.A. (AL, IL, IN,  NA.................  E                       366           NA           NA
                                                          KY, OH, TN, VA).
Do...............................  ......do............  ......do...........  U.S.A. (AL--The      XN                      709           NA     17.85(a)
                                                                               free-flowing reach
                                                                               of the Tennessee
                                                                               River from the
                                                                               base of Wilson Dam
                                                                               downstream to the
                                                                               backwaters of
                                                                               Pickwick Reservoir
                                                                               (about 12 river
                                                                               mile (RM) (19
                                                                               km)), and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to this reach in
                                                                               Colbert and
                                                                               Lauderdale
                                                                               Counties.).
Do...............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Pearlymussel, dromedary..........  Dromus dromas.......  U.S.A. (AL, KY, TN,  NA.................  E                        15           NA           NA
                                                          VA).

[[Page 34217]]

 
Do...............................  ......do............  ......do...........  U.S.A. (AL--The      XN                      709           NA     17.85(a)
                                                                               free-flowing reach
                                                                               of the Tennessee
                                                                               River from the
                                                                               base of Wilson Dam
                                                                               downstream to the
                                                                               backwaters of
                                                                               Pickwick Reservoir
                                                                               (about 12 river
                                                                               mile (RM) (19
                                                                               km)), and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to this reach in
                                                                               Colbert and
                                                                               Lauderdale
                                                                               Counties.).
Do...............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Pigtoe, fine-rayed...............  Fusconaia cuneolus..  U.S.A. (AL, TN, VA)  NA.................  E                        15           NA           NA
Do...............................  ......do............  ......do...........  U.S.A. (AL--The      XN                      709           NA     17.85(a)
                                                                               free-flowing reach
                                                                               of the Tennessee
                                                                               River from the
                                                                               base of Wilson Dam
                                                                               downstream to the
                                                                               backwaters of
                                                                               Pickwick Reservoir
                                                                               (about 12 river
                                                                               mile (RM) (19
                                                                               km)), and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to this reach in
                                                                               Colbert and
                                                                               Lauderdale
                                                                               Counties.).

[[Page 34218]]

 
Do...............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Pigtoe, rough....................  Pleurobema plenum...  U.S.A. (AL, IN, KY,  NA.................  E                        15           NA           NA
                                                          PA, TN, VA).
Do...............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
Pigtoe, shiny....................  Fusconaia cor.......  U.S.A. (AL, TN, VA)  NA.................  E                        15           NA           NA
Do...............................  ......do............  ......do...........  U.S.A. (AL--The      XN                      709           NA     17.85(a)
                                                                               free-flowing reach
                                                                               of the Tennessee
                                                                               River from the
                                                                               base of Wilson Dam
                                                                               downstream to the
                                                                               backwaters of
                                                                               Pickwick Reservoir
                                                                               (about 12 river
                                                                               mile (RM)(19 km)),
                                                                               and the lower 5 RM
                                                                               (8 km) of all
                                                                               tributaries to
                                                                               this reach in
                                                                               Colbert and
                                                                               Lauderdale
                                                                               Counties.).

[[Page 34219]]

 
Do...............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Pimpleback, orangefoot             Plethobasus           U.S.A. (AL, IA, IL,  NA.................  E                        15           NA           NA
 (pearlymussel).                    cooperianus.          IN, KY, OH, PA,
                                                          TN).
Do...............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Pink, ring (mussel)..............  Obovaria retusa.....  U.S.A. (AL, IL, IN,  NA.................  E                       369           NA           NA
                                                          KY, OH, PA, TN,
                                                          WV).

[[Page 34220]]

 
Do...............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA    17.85 (b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
Wartyback, white (pearlymussel)..  Plethobasus           U.S.A. (AL, IL, IN,  NA.................  E                        15           NA           NA
                                    cicatricosus.         KY, TN).
Do...............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
             Snails
 
                                                                      * * * * * * *
Riversnail, Anthony's............  Athearnia anthonyi..  U.S.A. (AL, GA, TN)  NA.................  E                       538           NA           NA
Do...............................  ......do............  ......do...........  U.S.A. (AL--The      XN                      709           NA     17.85(a)
                                                                               free-flowing reach
                                                                               of the Tennessee
                                                                               River from the
                                                                               base of Wilson Dam
                                                                               downstream to the
                                                                               backwaters of
                                                                               Pickwick Reservoir
                                                                               (about 12 river
                                                                               mile (RM) (19
                                                                               km)), and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to this reach in
                                                                               Colbert and
                                                                               Lauderdale
                                                                               Counties.).

[[Page 34221]]

 
Do...............................  ......do............  ......do...........  U.S.A. (TN--French   XN              ...........           NA     17.85(b)
                                                                               Broad River, Knox
                                                                               and Sevier
                                                                               Counties, from the
                                                                               base of Douglas
                                                                               Dam (river mile
                                                                               (RM) 32.3 (51.7
                                                                               km)) downstream to
                                                                               the confluence
                                                                               with the Holston
                                                                               River; then up the
                                                                               Holston River,
                                                                               Knox, Grainger,
                                                                               and Jefferson
                                                                               Counties, to the
                                                                               base of Cherokee
                                                                               Dam (RM 52.3 (83.7
                                                                               km)); and the
                                                                               lower 5 RM (8 km)
                                                                               of all tributaries
                                                                               to these reaches.).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec.  17.84 as follows:
    a. Revise paragraphs (e), (m), and (o) to read as set forth below; 
and
    b. Add new paragraphs (p), (q), (r), and (s) to read 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 three populations of this species as NEPs: 
The North Fork Holston River Watershed NEP, the Tellico River NEP, and 
the French Broad River and Holston 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 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 regulation to enlarge 
the boundaries of the NEP area to include the entire range of the 
expanded population.
    (iii) The French Broad River and Holston River NEP area is within 
the species' historic range and is defined as follows: The French Broad 
River, Knox and Sevier Counties, Tennessee, from the base of Douglas 
Dam (river mile (RM) 32.3 (51.7 km)) downstream to the confluence with 
the Holston River; then up the Holston River, Knox, Grainger, and 
Jefferson Counties, Tennessee, to the base of Cherokee Dam (RM 52.3 
(83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter 
these river reaches. This species is not known to exist in any of the 
tributaries to the free-flowing reaches of the French Broad River below 
Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston 
River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, 
Tennessee. 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 
regulation to enlarge the boundaries of the NEP area to include the 
entire range of the expanded population.
    (iv) 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).
    (2) What activities are not allowed in the NEP areas? (i) Except as 
expressly allowed in paragraph (e)(3) of this section, all the 
prohibitions of Sec.  17.31 (a) and (b) apply to the yellowfin madtom.
    (ii) Any manner of take not described under paragraph (e)(3) of 
this section is prohibited in the NEP area. We may refer unauthorized 
take of this 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 
(e)(2) of this section or in violation of the applicable State fish and 
wildlife laws or regulations or the Act.

[[Page 34222]]

    (iv) You may not attempt to commit, solicit another to commit, or 
cause to be committed any offense defined in paragraph (e)(2) of this 
section.
    (3) What take is allowed in the NEP area? Take of this species that 
is accidental and 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? After the initial stocking of fish, we will monitor annually 
their presence or absence and document any spawning behavior or young-
of-the-year fish that might be present. This monitoring will be 
conducted primarily by snorkeling or seining and will be accomplished 
by contracting with the appropriate species experts. We will produce 
annual reports detailing the stocking rates and monitoring activities 
that took place during the previous year. We will also fully evaluate 
these reintroduction efforts after 5 and 10 years to determine whether 
to continue or terminate the reintroduction efforts.
    (5) Note: Map of the NEP area for the yellowfin madtom in the 
Tellico River, Tennessee, appears immediately following paragraph 
(m)(5) of this section.
    (6) Note: Map of the NEP area for the yellowfin madtom in the 
French Broad River and Holston River, Tennessee, appears immediately 
following paragraph (m)(7) of this section.
* * * * *
    (m) Spotfin chub (=turquoise shiner) (Erimonax monachus).
    (1) Where is the spotfin chub designated as a nonessential 
experimental population (NEP)? We have designated three populations of 
this species as NEPs: The Tellico River NEP, the Shoal Creek NEP, and 
the French Broad River and Holston River NEP.
    (i) The Tellico River NEP area is within the species' probable 
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 (km)) and Tellico River mile 33 (52.8 km), 
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 
regulation to enlarge the boundaries of the NEP area to include the 
entire range of the expanded population.
    (ii) The Shoal Creek NEP area is within the species' historic range 
and is defined as follows: Shoal Creek (from Shoal Creek mile 41.7 
(66.7 km)) at the mouth of Long Branch, Lawrence County, TN, downstream 
to the backwaters of Wilson Reservoir (Shoal Creek mile 14 (22 km)) at 
Goose Shoals, Lauderdale County, AL, including the lower 5 miles (8 km) 
of all tributaries that enter this reach. This species is not currently 
known to exist in the Shoal Creek 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 regulation to enlarge 
the boundaries of the NEP area to include the entire range of the 
expanded population.
    (iii) The French Broad River and Holston River NEP area is within 
the species' historic range and is defined as follows: the French Broad 
River, Knox and Sevier Counties, Tennessee, from the base of Douglas 
Dam (river mile (RM) 32.3 (51.7 km)) downstream to the confluence with 
the Holston River; then up the Holston River, Knox, Grainger, and 
Jefferson Counties, Tennessee, to the base of Cherokee Dam (RM 52.3 
(83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter 
these river reaches. This species is not known to exist in any of the 
tributaries to the free-flowing reaches of the French Broad River below 
Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston 
River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, 
Tennessee. 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 
regulation to enlarge the boundaries of the NEP area to include the 
entire range of the expanded population.
    (iv) 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 
provisions of Sec.  17.31(a) and (b) apply to the spotfin chub.
    (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 this 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 accidental and 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? (i) In the Tellico River NEP area, we will prepare periodic 
progress reports and fully evaluate these reintroduction efforts after 
5 and 10 years to determine whether to continue or terminate the 
reintroduction efforts.
    (ii) In the Shoal Creek NEP area and the French Broad River and 
Holston River NEP area, after the initial stocking of fish, we will 
monitor annually their presence or absence and document any spawning 
behavior or young-of-the-year fish that might be present. This 
monitoring will be conducted primarily by snorkeling or seining and 
will be accomplished by contracting with the appropriate species 
experts. We will produce annual reports detailing the stocking rates 
and monitoring activities that took place during the previous year. We 
will also fully evaluate these reintroduction efforts after 5 and 10 
years to determine whether to continue or terminate the reintroduction 
efforts.
    (5) Note: Map of the Tellico River NEP area for spotfin chub, dusky 
darter, smoky madtom, and yellowfin madtom in Tennessee follows:
BILLING CODE 4310-55-P

[[Page 34223]]

[GRAPHIC] [TIFF OMITTED] TP13JN06.017


[[Page 34224]]


    (6) Note: Map of the Shoal Creek NEP area for spotfin chub and 
boulder darter in Tennessee and Alabama follows:
[GRAPHIC] [TIFF OMITTED] TP13JN06.018


[[Page 34225]]


    (7) Note: Map of the French Broad River and Holston River NEP area 
for spotfin chub, slender chub, duskytail darter, pygmy madtom, and 
yellowtail madtom in Tennessee follows:
[GRAPHIC] [TIFF OMITTED] TP13JN06.019


[[Page 34226]]


* * * * *
    (o) Boulder darter (Etheostoma wapiti).
    (1) Where is the boulder darter designated as a nonessential 
experimental population (NEP)? (i) The NEP area for the boulder darter 
is within the species' historic range and is defined as follows: Shoal 
Creek (from Shoal Creek mile 41.7 (66.7 km)) at the mouth of Long 
Branch, Lawrence County, TN, downstream to the backwaters of Wilson 
Reservoir (Shoal Creek mile 14 (22 km)) at Goose Shoals, Lauderdale 
County, AL, including the lower 5 miles (8 km) of all tributaries that 
enter this reach.
    (ii) The boulder darter is not currently known to exist in Shoal 
Creek or its tributaries. Based on the habitat requirements of this 
fish, we do not expect it to become established outside the NEP area. 
However, if any individuals of the species 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 
paragraph (o)(1)(i) of this section to 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 (o)(3) of this section, all the 
provisions of Sec.  17.31(a) and (b) apply to the boulder darter.
    (ii) Any manner of take not described under paragraph (o)(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 
(o)(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 (o)(2) of this 
section.
    (3) What take is allowed in the NEP area? Take of this species that 
is accidental and 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? After the initial stocking of fish, we will monitor annually 
their presence or absence and document any spawning behavior or young-
of-the-year fish that might be present. This monitoring will be 
conducted primarily by snorkeling or seining and will be accomplished 
by contracting with the appropriate species experts. We will produce 
annual reports detailing the stocking rates and monitoring activities 
that took place during the previous year. We will also fully evaluate 
these reintroduction efforts after 5 and 10 years to determine whether 
to continue or terminate the reintroduction efforts.
    (5) Note: Map of the NEP area for the boulder darter in the Shoal 
Creek, Tennessee and Alabama, appears immediately following paragraph 
(m)(6) of this section.
    (p) Duskytail darter (Etheostoma percnurum).
    (1) Where is the duskytail darter designated as a nonessential 
experimental population (NEP)? We have designated two populations of 
this species as NEPs: The Tellico River NEP and the French Broad River 
and Holston River NEP.
    (i) 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 regulation to enlarge 
the boundaries of the NEP area to include the entire range of the 
expanded population.
    (ii) The French Broad River and Holston River NEP area is within 
the species' historic range and is defined as follows: the French Broad 
River, Knox and Sevier Counties, Tennessee, from the base of Douglas 
Dam (river mile (RM) 32.3 (51.7 km)) downstream to the confluence with 
the Holston River; then up the Holston River, Knox, Grainger, and 
Jefferson Counties, Tennessee, to the base of Cherokee Dam (RM 52.3 
(83.7 km)); and the lower 5 RM (8 km) of all tributaries that enter 
these river reaches. This species is not known to exist in any of the 
tributaries to the free-flowing reaches of the French Broad River below 
Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston 
River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, 
Tennessee. 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 
regulation to 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 (q)(3) of this section, all the 
prohibitions of Sec.  17.31(a) and (b) apply to the duskytail darter.
    (ii) Any manner of take not described under paragraph (q)(3) of 
this section is prohibited in the NEP area. We may refer unauthorized 
take of this 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 
(q)(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 (q)(2) of this 
section.
    (3) What take is allowed in the NEP area? Take of this species that 
is accidental and 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? After the initial stocking of fish, we will monitor annually 
their presence or absence and document any spawning behavior or young-
of-the-year fish that might be present. This monitoring will be 
conducted primarily by snorkeling or seining and will be accomplished 
by

[[Page 34227]]

contracting with the appropriate species experts. We will produce 
annual reports detailing the stocking rates and monitoring activities 
that took place during the previous year. We will also fully evaluate 
these reintroduction efforts after 5 and 10 years to determine whether 
to continue or terminate the reintroduction efforts.
    (5) Note: Map of the NEP area for the duskytail darter in the 
Tellico River, Tennessee, appears immediately following paragraph 
(m)(5) of this section.
    (6) Note: Map of the NEP area for the duskytail darter in the 
French Broad River and Holston River, Tennessee, appears immediately 
following paragraph (m)(7) of this section.
    (q) Smoky madtom (Noturus baileyi).
    (1) Where is the smoky madtom designated as a nonessential 
experimental population (NEP)? (i) The NEP area for the smoky madtom is 
within the species' probable 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.
    (ii) The smoky madtom is not currently known to exist in the 
Tellico River or its tributaries. Based on the habitat requirements of 
this fish, we do not expect it to become established outside the NEP 
area. However, if any individuals of the species 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 paragraph (r)(1)(i) of this section to 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 
this NEP, 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 (r)(3) of this section, all the 
prohibitions of Sec.  17.31 (a) and (b) apply to the smoky madtom.
    (ii) Any manner of take not described under paragraph (r)(3) of 
this section is prohibited in the NEP area. We may refer unauthorized 
take of this 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 
(r)(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 (r)(2) of this 
section.
    (3) What take is allowed in the NEP area? Take of this species that 
is accidental and 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? After the initial stocking of fish, we will monitor annually 
their presence or absence and document any spawning behavior or young-
of-the-year fish that might be present. This monitoring will be 
conducted primarily by snorkeling or seining and will be accomplished 
by contracting with the appropriate species experts. We will produce 
annual reports detailing the stocking rates and monitoring activities 
that took place during the previous year. We will also fully evaluate 
these reintroduction efforts after 5 and 10 years to determine whether 
to continue or terminate the reintroduction efforts.
    (5) Note: Map of the NEP area for the smoky madtom in the Tellico 
River, Tennessee, appears immediately following paragraph (m)(5) of 
this section.
    (r) Slender chub (Erimystax cahni).
    (1) Where is the slender chub designated as a nonessential 
experimental population (NEP)? (i) The NEP area for the slender chub is 
within the species' historic range and is defined as follows: The 
French Broad River, Knox and Sevier Counties, Tennessee, from the base 
of Douglas Dam (river mile (RM) 32.3 (51.7 km)) downstream to the 
confluence with the Holston River; then up the Holston River, Knox, 
Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee 
Dam (RM 52.3 (83.7 km)); and the lower 5 RM (8 km) of all tributaries 
that enter these river reaches.
    (ii) The slender chub is not known to exist in any of the 
tributaries to the free-flowing reaches of the French Broad River below 
Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston 
River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, 
Tennessee. 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 
regulation to 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 
this NEP, 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 (s)(3) of this section, all the 
prohibitions of Sec.  17.31 (a) and (b) apply to the slender chub.
    (ii) Any manner of take not described under paragraph (s)(3) of 
this section is prohibited in the NEP area. We may refer unauthorized 
take of this 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 
(s)(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 (s)(2) of this 
section.
    (3) What take is allowed in the NEP area? Take of this species that 
is accidental and 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? After the initial stocking of fish, we will monitor annually 
their presence or absence and document any spawning behavior or young-
of-the-year fish that might be present. This monitoring will be 
conducted primarily by snorkeling or seining and will be accomplished 
by contracting with the appropriate species experts. We will produce 
annual reports detailing the stocking rates and monitoring activities 
that took place during the previous year. We will also fully evaluate 
these reintroduction efforts after 5 and 10 years to determine whether 
to continue or terminate the reintroduction efforts.
    (5) Note: Map of the NEP area for the slender chub in the French 
Broad River and Holston River, Tennessee, appears

[[Page 34228]]

immediately following paragraph (m)(7) of this section.
    (s) Pygmy madtom (Noturus stanauli).
    (1) Where is the pygmy madtom designated as a nonessential 
experimental population (NEP)? (i) The NEP area for the pygmy madtom is 
within the species' historic range and is defined as follows: The 
French Broad River, Knox and Sevier Counties, Tennessee, from the base 
of Douglas Dam (river mile (RM) 32.3 (51.7 km)) downstream to the 
confluence with the Holston River; then up the Holston River, Knox, 
Grainger, and Jefferson Counties, Tennessee, to the base of Cherokee 
Dam (RM 52.3 (83.7 km)); and the lower 5 RM (8 km) of all tributaries 
that enter these river reaches.
    (ii) The pygmy madtom is not known to exist in any of the 
tributaries to the free-flowing reaches of the French Broad River below 
Douglas Dam, Knox and Sevier Counties, Tennessee, or of the Holston 
River below the Cherokee Dam, Knox, Grainger, and Jefferson Counties, 
Tennessee. 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 
regulation to 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 
this NEP, 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 (t)(3) of this section, all the 
prohibitions of Sec.  17.31 (a) and (b) apply to the pygmy madtom.
    (ii) Any manner of take not described under paragraph (t)(3) of 
this section is prohibited in the NEP area. We may refer unauthorized 
take of this 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 
(t)(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 (t)(2) of this 
section.
    (3) What take is allowed in the NEP area? Take of this species that 
is accidental and 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? After the initial stocking of fish, we will monitor annually 
their presence or absence and document any spawning behavior or young-
of-the-year fish that might be present. This monitoring will be 
conducted primarily by snorkeling or seining and will be accomplished 
by contracting with the appropriate species experts. We will produce 
annual reports detailing the stocking rates and monitoring activities 
that took place during the previous year. We will also fully evaluate 
these reintroduction efforts after 5 and 10 years to determine whether 
to continue or terminate the reintroduction efforts.
    (5) Note: Map of the NEP area for the pygmy madtom in the French 
Broad River and Holston River, Tennessee, appears immediately following 
paragraph (m)(7) of this section.
    4. Amend Sec.  17.85 by revising paragraph (a) introductory text 
and the heading of paragraph (a)(1), and adding a new paragraph (b) to 
read as follows:


Sec.  17.85  Special rules--invertebrates.

    (a) Seventeen mollusks in the Tennessee River. The species in the 
following table comprise nonessential experimental populations (NEPs):

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

    (1) Where are these mollusks designated as NEPs? * * *
* * * * *
    (b) Sixteen mollusks in the French Broad and Holston Rivers. The 
species in the following table comprise nonessential experimental 
populations (NEPs):

------------------------------------------------------------------------
         Common name                        Scientific name
------------------------------------------------------------------------
Appalachian monkeyface        Quadrula sparsa.
 (pearlymussel).
birdwing pearlymussel.......  Lemiox rimosus.
cracking pearlymussel.......  Hemistena lata.
Cumberland bean               Villosa trabalis.
 (pearlymussel).
Cumberlandian combshell.....  Epioblasma brevidens.

[[Page 34229]]

 
Cumberland monkeyface         Quadrula intermedia.
 (pearlymussel).
dromedary pearlymussel......  Dromus dromas.
fanshell....................  Cyprogenia stegaria.
fine-rayed pigtoe...........  Fusconaia cuneolus.
orangefoot pimpleback         Plethobasus cooperianus.
 (pearlymussel).
oyster mussel...............  Epioblasma capsaeformis.
ring pink (mussel)..........  Obovaria retusa.
rough pigtoe................  Pleurobema plenum.
shiny pigtoe................  Fusconaia cor.
white wartyback               Plethobasus cicatricosus.
 (pearlymussel).
Anthony's riversnail........  Athearnia anthonyi.
------------------------------------------------------------------------

    (1) Where are these mollusks designated as NEPs? (i) The NEP area 
for these mollusks is within the species' historical range and is 
defined as follows: The French Broad River, Knox and Sevier Counties, 
Tennessee, from the base of Douglas Dam (river mile (RM) 32.3 (51.7 
kilometers (km)) downstream to the confluence with the Holston River; 
then up the Holston River, Knox, Grainger, and Jefferson Counties, 
Tennessee, to the base of Cherokee Dam (RM 52.3 (83.7 km)); and the 
lower 5 RM (8 km) of all tributaries that enter these river reaches. 
None of the species identified in paragraph (b) are known to exist in 
any of the tributaries to the free-flowing reaches of the French Broad 
River below Douglas Dam, Knox and Sevier Counties, Tennessee, or of the 
Holston River below the Cherokee Dam, Knox, Grainger, and Jefferson 
Counties, Tennessee. Based on their habitat requirements, we do not 
expect these species to become established outside this NEP area. 
However, if any individuals are found 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 
(b)(1)(i) of this section to enlarge the boundaries of the NEP area to 
include the entire range of the expanded population.
    (ii) Another NEP area for 10 of these mollusks (Cumberland bean, 
Cumberlandian combshell, Cumberland monkeyface, oyster mussel, birdwing 
pearlymussel, cracking pearlymussel, dromedary pearlymussel, fine-rayed 
pigtoe, shiny pigtoe, and Anthony's riversnail) is provided in 
paragraph (a) of this section.
    (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 (b)(3) of this section, all the 
prohibitions of Sec.  17.31(a) and (b) apply to the mollusks identified 
in paragraph (b) of this section.
    (ii) Any manner of take not described under paragraph (b)(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.
    (iii) You may not possess, sell, deliver, carry, transport, ship, 
import, or export by any means whatsoever any of the identified 
mollusks, or parts thereof, that are taken or possessed in violation of 
paragraph (b)(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 (b)(2) of this 
section.
    (3) What take is allowed in the NEP area? Take of these species 
that is accidental and 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 effectiverness of these reintroductions be monitored? 
After the initial stocking of these species, we will monitor annually 
their presence or absence and document any spawning behavior or young-
of-the-year individuals that might be present. This monitoring will be 
conducted primarily by snorkeling and will be accomplished by 
contracting with the appropriate species experts. We will produce 
annual reports detailing the stocking rates and monitoring activities 
that took place during the previous year. We will also fully evaluate 
these reintroduction efforts after 5 and 10 years to determine whether 
to continue or terminate the reintroduction efforts.
    (5) Note: Map of the NEP area in Tennessee for the 16 mollusks 
listed in paragraph (b) of this section follows:
BILLING CODE 4310-55-P

[[Page 34230]]

[GRAPHIC] [TIFF OMITTED] TP13JN06.020


    Dated: May 19, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-5233 Filed 6-12-06; 8:45 am]
BILLING CODE 4310-55-C