[Federal Register Volume 72, Number 177 (Thursday, September 13, 2007)]
[Rules and Regulations]
[Pages 52434-52461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4320]



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Part II





Department of the Interior





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Fish and Wildlife Service



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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; Final Rule

  Federal Register / Vol. 72, No. 177 / Thursday, September 13, 2007 / 
Rules and Regulations  

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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: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), in 
cooperation with the State of Tennessee and Conservation Fisheries, 
Inc., a nonprofit organization, plan 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 (Lemiox rimosus), cracking pearlymussel 
(Hemistena 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), orange-foot 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). We published the proposed rule for this 
action on June 13, 2006 (71 FR 34196). The species will be released 
into their historical habitat in the free-flowing reach of the French 
Broad River from below Douglas Dam to its confluence with the Holston 
River, Knox County, Tennessee, and in the free-flowing reach of the 
Holston River from 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 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 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 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 we also want 
the public to understand that all of these species will be reintroduced 
into the same stretch of river. We are not establishing 21 separate 
NEPs.

DATES: The effective date of this rule is October 15, 2007.

ADDRESSES: You may obtain copies of the final rule from the field 
office address above, by calling (931) 528-6481, or from our Web site 
at http://cookeville.fws.gov.

FOR FURTHER INFORMATION CONTACT: Geoff Call, U.S. Fish and Wildlife 
Service, at the above address (telephone 931/528-6481, Ext. 213, 
facsimile 931/528-7075, or e-mail at [email protected]).

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 Non-essential 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 and the requirements of section 7. 
Section 9 of the Act prohibits the take of an endangered species. 
``Take'' is defined by the Act as ``harass, harm, pursue, hunt, shoot, 
wound, trap, capture, or collect, or attempt to engage in any such 
conduct.'' Service regulations (50 CFR 17.31) generally extend the 
prohibitions of take to threatened wildlife. Section 7 of the Act 
outlines the procedures for Federal interagency cooperation to conserve 
federally listed species and protect designated critical 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 
will, in consultation with the Service, ensure that any action they 
authorize, fund, or carry out is not likely to jeopardize the continued 
existence of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Section 7 of the Act does 
not affect activities undertaken on private land unless they are 
authorized, funded, or carried out by a Federal agency.
    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 
regulation 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. In these situations, the 
regulations that generally extend most section 9 prohibitions to 
threatened species do not apply to NEPs, although the special 4(d) rule 
contains the prohibitions and exceptions necessary and appropriate to 
conserve that species. Regulations issued under section 4(d) for NEPs 
are usually more compatible with routine 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

[[Page 52435]]

Refuge or National Park, we treat the population as proposed for 
listing and only two provisions of section 7 apply: Section 7(a)(1) and 
section 7(a)(4). In these instances, NEPs provide additional 
flexibility because Federal agencies are not required to consult with 
us under section 7(a)(2). Section 7(a)(4) requires Federal agencies to 
confer (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: Prior to the impoundments, 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, pp. 1-328; 
Ahlstedt 2004). Of this once-rich aquatic fauna, 7 mussel species are 
extinct, and 21 are federally listed species (i.e., 15 mussels, 1 
aquatic snail, and 5 fishes, listed in the SUMMARY section, above, are 
extirpated from these river reaches). The only federally listed mussel 
still occurring in the NEP area is the endangered pink mucket 
(Lampsilis abrupta), which still occurs in both the lower French Broad 
and lower Holston Rivers (Ahlstedt 2004; Layzer and Scott 2005, p. 11). 
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 
(larvae)) 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 (Rakes and Shute 1999, p. 5; Scott and Saylor 
2004; Layzer and Ahlstedt 2004; Layzer and Scott 2005, pp. 14-15), 
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 three of the four species in Abrams Creek has been 
documented (Rakes 2007). The spotfin chub reintroductions appear to be 
the least successful in this capacity (Shute et al. 2006, p. 106; Rakes 
2007). 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 yearly through 2007. 
Early indications show that these species are surviving and have had 
some success in spawning (Rakes 2007). It will take several more years 
of reintroductions 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 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 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, pp. 2-4). We are unaware of historical records of the 
species in the French Broad River, but archeological records (Parmalee 
and Bogan 1988, p. 168) 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, p. 223). No 
downlisting (reclassification from endangered to threatened) criteria 
are provided in the recovery plan. The delisting objectives for the 
Appalachian monkeyface (Service1984a, pp. 19-20) 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 (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 
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, p. 146). Archeological records 
(Parmalee 1988, p. 171) 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, p. 2). No downlisting criteria 
are given in the recovery plan. The delisting objectives for the 
birdwing pearlymussel (Service 1984b, pp. 19-20) are to: (1) Restore 
the viability of the Clinch and Powell River populations, (2) 
reestablish

[[Page 52436]]

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, pp. 
44-45, Service 1991a, pp. 2-5). 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, p. 122). No historical records exist for the species in the 
French Broad system, but archaeological records (Parmalee 1988, pp. 
168-169) 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, p. 45; Neves 1991, p. 277). 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, p. 6) 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 24064). 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, 
pp. 2-3). No historical records exist in the French Broad River system, 
but archaeological records (Parmalee 1988, p. 172) 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, pp. 2-6). No downlisting criteria are given in the recovery 
plan. The delisting objectives for the Cumberland bean (Service 1984c, 
pp. 18-19) 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, p. 2). Currently, populations 
survive in a few river reaches in both river systems (Gordon 1991, p. 
2). It historically occurred in the lower Holston River and a French 
Broad River tributary (Nolichucky River) (Parmalee and Bogan 1998, p. 
84). Archaeological records (Parmalee 1988, p. 171) of this species 
exist from the Little Pigeon River, a lower French Broad River 
tributary. The downlisting objectives for the Cumberlandian combshell 
(Service 2004, pp. 65-68) 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) 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, pp. 
2-3). Based on collections from aboriginal shell middens, Parmalee and 
Bogan (1998, pp. 214-215) 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, p. 21). No 
downlisting criteria are given in the recovery plan. The delisting 
objectives for the Cumberland monkeyface (Service 1984d, pp. 21-22) 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

[[Page 52437]]

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, p. 
16). Parmalee and Bogan (1998, p. 71) 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, p. 
172). 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, pp. 3-8; Neves 1991, p. 293). No downlisting 
criteria are given in the recovery plan. The delisting objectives for 
the dromedary pearlymussel (Service 1984e, pp. 20-21) 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, p. 565) reported it from the lower Holston River, and Parmalee 
and Bogan (1998, p. 70) 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, 
pp. 2-4). The downlisting objectives for the fanshell (Service 1991b, 
pp. 6-7) 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, 
pp. 2-4, Parmalee and Bogan 1998, pp. 115-116). No downlisting criteria 
are given in the recovery plan. The delisting objectives for the fine-
rayed pigtoe (Service 1984f, pp. 22-24) 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, p. 174). The species persists in the 
lower Ohio, Tennessee, and Cumberland Rivers (Service 1984g, pp. 2-6). 
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 2005). No downlisting 
criteria are given in this recovery plan. The delisting objectives for 
the orangefoot pimpleback (Service 1984g, pp. 13-14) 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 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, pp. 2-3). Small populations 
now survive in a few river reaches in both river systems (Gordon 1991, 
pp. 2-3). It was historically taken in the lower French Broad River 
near its confluence with the Holston, and a

[[Page 52438]]

population still survives in the Nolichucky River, a French Broad River 
tributary, above Douglas Reservoir (Parmalee and Bogan 1998, p. 86). 
Archaeological records (Parmalee 1988, pp. 170-171) of this species 
exist from the Little Pigeon River, a lower French Broad River 
tributary. The downlisting objectives for the oyster mussel (Service 
2004, pp. 65-68) 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, pp. 2-3). 
Ortmann (1918, p. 567) and Parmalee and Bogan (1998, p. 166) reported 
it from the lower Holston River, and it has been taken from an 
archeological site on the lower French Broad River (Ahlstedt 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, pp. 2-3, Parmalee and 
Bogan 1998, p. 166). In 2004 and 2005, three juveniles and one adult 
male were found in the Green River (Leroy Koch 2005). The adult male 
was taken to the Kentucky Department of Fish and Wildlife Resources' 
(KDFWR) propagation facility in Frankfort, Kentucky. KDFWR plans to 
propagate this species to augment existing populations and establish 
new ones, such as the lower French Broad and lower Holston Rivers. The 
downlisting objectives for the ring pink (Service 1991c, pp. 4-5) 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 that 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, pp. 2-3), including 
the lower French Broad and Holston Rivers (Parmalee and Bogan 1998, p. 
189). Archaeological records (Parmalee 1988, p. 169) 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, p. 189, Service 
1984h, pp. 3-7). No downlisting criteria are given in this recovery 
plan. The delisting objectives for the rough pigtoe (Service 1984h, pp. 
14-15) 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 that 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 (Service 1984i, pp. 2-4). It is currently known from five 
river systems: the Clinch, Powell, North Fork Holston, Elk, and Paint 
Rock (Service 1984i, pp. 4-8). 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, pp. 2-4, 
Parmalee and Bogan 1998, p. 113). No downlisting criteria are given in 
the recovery plan. The delisting objectives for the shiny pigtoe 
(Service 1984i, pp. 23-25) 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, p. 172). It still persists in the middle reaches of the Tennessee 
River (Service 1984j, pp. 4-5). No downlisting criteria are given in 
this recovery plan. The delisting objectives for the white wartyback 
(Service 1984j, pp. 12-13) 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 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

[[Page 52439]]

August 1997 (Service 1997). We also established an NEP for Anthony's 
riversnail and 16 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, pp. 81-82, Service 1997, pp. 1-2). 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, p. 2). The downlisting objectives for Anthony's 
riversnail (Service 1997, p. 5-6) 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, pp. 3-6). The South Fork Holston River 
population is apparently extirpated (Service 1994a, p. 4). The Little 
River, Copper Creek/Clinch River, and Big South Fork Cumberland River 
populations are extant but small and their viability is uncertain 
(Service 1994a, pp. 4-5). The Citico Creek population is healthy and 
viable (Shute 2005). CFI has reintroduced the species into Abrams Creek 
in Tennessee, and there are indications that it is becoming 
reestablished (Rakes et al. 2005, p. 106). 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, p. 5). 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, pp. 7-8) 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, p. 5). Our conclusion is based on 
the same facts outlined above for the duskytail darter. The downlisting 
objectives for the pygmy madtom (Service 1994b, p. 5) 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). 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, pp. 2-3). 
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 (Rakes and Shute 2006, p. 1). However, collections made 
over the years have generally shown that specimens can often be taken 
only sporadically and in very small numbers. There was an effort to 
survey for the slender chub in 2004 and 2005. No slender chubs were 
found, but the surveyors felt confident that at least a few individuals 
may still survive in the Clinch River and a propagation program could 
succeed (Rakes and Shute 2006, p. 5). Additional surveys for slender 
chubs are planned for 2007. 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, pp. 
3-5). Our conclusion is based on the same facts outlined above for the 
duskytail darter. The delisting objectives for the slender chub 
(Service 1983a, pp. 8-9) 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;

[[Page 52440]]

(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, pp. 2-4; P. Shute 2004; TVA 2004). 
CFI has reintroduced the species into Abrams Creek in Tennessee, and 
there are indications that it has become reestablished (Rakes et al. 
2005, p. 106). 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, pp. 2-14). 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, pp. 19-20) 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, p. 2). Four small extant populations still exist, one 
each in Citico Creek, Copper Creek, Clinch River, and the Powell River 
(Rakes and Shute 2006a, pp. 2, 6). The species was reintroduced into 
Abrams Creek, and the population is becoming reestablished (Shute et 
al. 2005, p. 106). Reintroductions into the NEP section of the Tellico 
River are ongoing and early results are promising (Rakes and Shute 
2005, p. 13). 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, pp. 8-10) 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 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 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, pp. 2-4). Additionally, Rakes and Shute (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 (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

[[Page 52441]]

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, June 14, 2001). In October 
2003, 80 each of birdwing pearlymussels, oyster mussels, and dromedary 
mussels (dromedary mussels are not part of the Lower French Broad/Lower 
Holston NEP) and 2,370 Anthony's riversnails were placed in the NEP 
area below Wilson Dam. The status of these reintroduced mussels was 
checked during the summer of 2004 and 2005. 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. 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, 
through this regulation, 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) appear suitable for the reintroduction of 
these 21 species with NEP status.
    We plan to reintroduce these 21 species into historical habitat in 
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 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 (Jones et al. 2005). Genetic management guidelines for 
captive propagation of freshwater mussels have also recently been 
developed (Jones et al. 2006). Juvenile mussels of some species could 
be available for reintroduction soon after this NEP rule is finalized. 
Individual endangered mussels that would be used for these 
reintroductions will be primarily artificially propagated juveniles. 
However, it is possible that wild adult stock of some mussels could 
also be released into the area. 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 likely be collected for the 
reintroductions from a large naturally reproducing population located 
in Limestone Creek, Limestone County, Alabama, and relocated directly 
into the NEP.
    Individual fishes that would be used for these 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 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 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) when the population is not 
reproducing (see 50 CFR Sec.  17.22). For these 21 species, it is 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 actions

[[Page 52442]]

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 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 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 and then 
up the Holston River, Knox, Grainger, and Jefferson Counties, 
Tennessee, to the base of Cherokee Dam and also will include 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 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 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 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 and 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, August 12, 2002) 
does not overlap or interfere with this 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 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, August 4, 1998) is separated by reservoirs 
and long stretches of river that do not contain yellowfin madtoms or 
their habitat and act as effective barriers between madtom populations 
in the North Fork Holston River and the 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, June 14, 2001) in 
Alabama does not overlap or interfere with this 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 and 
oyster mussel (69 FR 53136, August 31, 2004), and the slender chub, 
spotfin chub, and yellowfin madtom (42 FR 45526, September 9, 1977); 
however, none of these designations include the 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 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 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, which in most cases for these reintroduced species would 
be the State agency, TWRA, 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 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 
reintroduction of these 21 species before preparing this rule. The 
reintroduction also has been discussed with potentially affected State 
agencies, businesses, and landowners within the 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

[[Page 52443]]

experimental population area are established as an NEP and if aquatic 
resource activities in the experimental population area are not 
constrained.
    (d) Potential for conflict with human activities: We do not believe 
these reintroductions will conflict with existing or 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 the proposed rule, the 
public was given the opportunity to comment on the NEP designation for 
these fishes (see Summary of Comments and Recommendations Section 
below).
    We have informed 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 will 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, orange-foot 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 an NEP 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 
pearlymussel 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 threatened 
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 final rule, 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.

Summary of Comments and Recommendations

    In the June 13, 2006, proposed rule (71 FR 34196), we requested 
that all interested parties submit comments or information concerning 
the proposed NEP. We contacted appropriate Federal, State, and local 
agencies, county governments, elected officials, scientific 
organizations, and other interested parties and invited them to comment 
on the proposed NEP. We also provided notification of this document 
through email, telephone calls, letters, and news releases faxed and/or 
mailed to affected elected officials, media outlets, local 
jurisdictions, and interested groups. We provided the document on the 
Service's Cookeville Field Office Internet site following its release.
    During the public comment period, we received comments from four 
parties: One federal agency and three universities. All four parties 
supported the NEP. The three university parties were peer reviewers 
(see below). The federal agency, Tennessee Valley Authority, operates 
the two dams on the lower French Broad and lower Holston Rivers. TWRA 
did not provide comments during the public comment period but remain 
supportive of this effort.
    In conformance with our policy on peer review, published on July 1, 
1994 (59 FR 34270), we solicited independent opinions from four 
knowledgeable individuals who have expertise with these species within 
the geographic

[[Page 52444]]

region where the species occur, and/or familiarity with the principles 
of conservation biology. We received comments from three of the four 
peer reviewers. These are included in the summary below and 
incorporated into this final rule.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding the 
proposed NEP. Substantive comments received during the comment period 
have either been addressed below or incorporated directly into this 
final rule. The comments are grouped below as either peer review or 
public comments.

Peer Review Comments

    (1) Comment: A recent publication entitled ``Restoration and 
colonization of freshwater mussels and fish in a southeastern United 
States tailwater'' by Layzer and Scott (2005) should be cited in lieu 
of some of the personal communications.
    Response: We have added this citation to the document where 
appropriate.
    (2) Comment: Continued operation of the dams as peaking 
hydroelectric projects will further hinder recolonization of the mid-
water fish species and reduce the likelihood of establishing 
populations of some of the mussel species that rely on them as 
glochidial hosts.
    Response: TVA continues to improve the conditions of the tailwaters 
below the two dams. We acknowledge that more work needs to be done to 
reduce the peak flows in both intensity and duration. We will continue 
to work with TVA to accomplish that goal. In the meantime, mussel 
species that use benthic fishes as glochidial hosts, such as the oyster 
mussel and birdwing pearlymussel, can be reintroduced as soon as this 
rule becomes final, since their glochidial host fish species are 
abundant in both rivers.
    (3) Comment: A recent publication entitled ``Genetic management 
guidelines for captive propagation of freshwater mussels (Unionoidea)'' 
by Jones et al. (2006) should provide a citation for all genetic 
management issues related to either translocation or propagation of 
endangered freshwater mollusks.
    Response: We have added this citation to the document where 
appropriate.
    (4) Comment: Under 50 CFR 17.85, Special rules--invertebrates, 
there are a couple of extinct species listed in the table of NEP's in 
the Tennessee River. This may be very confusing to the public and 
perhaps be interpreted as contradictory to the ``best available 
science.''
    Response: The table lists all the mollusk species that are included 
in the existing NEP below Wilson Dam in the Tennessee River (66 FR 
32250, June 14, 2001). We realize that some of these species (in 
particular the tubercled blossom, turgid blossom, and yellow blossom 
pearlymussels) have not been found alive in 20 years or longer and that 
many experts believe that they may indeed be extinct. On the other 
hand, mussels can be found after a long time of not being seen in 
collection records and, presently, the Service has not declared any of 
these species extinct. These mussels are not part of this final action 
being set forth for the lower French Broad and lower Holston Rivers. 
However, the Service has initiated 5-year reviews for each of these 
mussels (70 FR 55157, September 20, 2005) and is in the process of 
assessing the mussels' listed status under the Act. If a change in 
status is recommended based on the review conducted, the Service would 
be required to go through a separate rulemaking process to formally 
change a species' listed status. At that time, the Service would 
consider associated existing regulations for the respective species and 
determine if corrections are necessary.

Public Comments

    (5) Comment: The ``accidental and incidental take'' provision 
should be expanded to state that any take as a result of TVA's 
operation of its multipurpose dams and associated works (e.g., 
fluctuation of flows, adjustment of aeration systems) would be 
considered a permissible incidental take.
    Response: The rule clearly states that section 10(j) of the Act can 
provide regulatory relief with regard to the taking of reintroduced 
species within an NEP area. The rule allows for the taking of these 
reintroduced species when such take is incidental to an otherwise legal 
activity that is in accordance with Federal, State, and local laws and 
regulations. This rule applies to any legal activity TVA might 
undertake.
    (6) Comment: The upstream limits of the NEP should be reconsidered 
since areas immediately downstream of the dams and for some distance 
downstream do not provide suitable habitat for any of these species due 
to dam operations.
    Response: We acknowledge that presently the conditions below both 
dams (Cherokee and Douglas) are not sufficient to sustain viable 
populations of these listed species. However, particularly with the 
fish species, there could be some movement in and out of these areas. 
In order to provide regulatory relief, should any of these species move 
into these areas, we would have to designate the area as being part of 
the NEP. For this reason, we are going to leave the limits of the NEP 
as originally drafted to include the free-flowing reach of the French 
Broad River below Douglas Dam to its confluence with the Holston River 
and the free-flowing reach of the Holston River below Cherokee Dam to 
its confluence with the French Broad River.

Required Determinations

Regulatory Planning and Review (E.O. 12866)

    In accordance with the criteria in Executive Order 12866, this 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 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 reintroduction of

[[Page 52445]]

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. Both Federal 
agencies support the proposal.
    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 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 species through reintroduction into 
suitable habitat.

Unfunded Mandates Reform Act

    The 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 reintroductions under a NEP 
designation. However, they will not be required to specifically manage 
for any reintroduced species. Accordingly, this rule will not 
``significantly or uniquely'' affect small governments. A Small 
Government Agency Plan is not required 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 the relationship between the Federal 
Government and the States, or on the distribution of power and 
responsibilities among the various levels of government. We have 
coordinated extensively with the State of Tennessee on the 
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. The special rule operates to 
maintain the existing relationship between the States and the Federal 
government and is being undertaken at the request of a State agency 
(TWRA). We have cooperated with the TWRA in the preparation of this 
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 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 part 
1320, which implement provisions of the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.) require that Federal

[[Page 52446]]

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 control number. This 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 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.

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 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, and Transportation.

Final Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

0
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.


0
2. Amend Sec.  17.11(h), the List of Endangered and Threatened 
Wildlife, as follows:
0
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;
0
b. Under the heading ``CLAMS,'' by revising the entries for ``Bean, 
Cumberland (pearlymussel)''; ``Blossom, tubercled (pearlymussel)''; 
``Blossom, turgid (pearlymussel)''; ``Blossom, yellow (pearlymussel)''; 
``Catspaw (purple cat's paw pearlymussel)''; ``Clubshell''; 
``Combshell, Cumberlandian''; ``Fanshell''; ``Lampmussel, Alabama''; 
``Mapleleaf, winged (mussel)''; ``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
0
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                       When       Critical     Special
                                                           Historic  range       endangered or         Status         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--         XN              ...........           NA    17.84(sr)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.84(s)(1)(i)).
 
                                                                      * * * * * * *
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.
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN                      732           NA     17.84(m)
                                                                               specified portions
                                                                               of the Tellico
                                                                               River; see
                                                                               17.84(m)(1)(i)).

[[Page 52447]]

 
 Do..............................  ......do............  ......do...........  U.S.A. (AL, TN--     XN                      747           NA     17.84(m)
                                                                               specified portions
                                                                               of Shoal Creek;
                                                                               see
                                                                               17.84(m)(1)(ii)).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.84(m)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.84(m)(1)(iii)).
 
                                                                      * * * * * * *
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--         XN                      732           NA     17.84(q)
                                                                               specified portions
                                                                               of the Tellico
                                                                               River; see
                                                                               17.84(p)(1)(i)).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.84(q)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.84(q)(1)(ii)).
 
                                                                      * * * * * * *
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--         XN              ...........           NA     17.84(t)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.84(t)(1)(i)).
 
                                                                      * * * * * * *
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(r)
                                                                               specified portions
                                                                               of the Tellico
                                                                               River; see
                                                                               17.84(r)(1)(i)).
 
                                                                      * * * * * * *
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--     XN                      317           NA     17.84(e)
                                                                               specified portions
                                                                               of the Holston
                                                                               River and
                                                                               watershed; see
                                                                               17.84(e)(1)(i)).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN                      732           NA     17.84(e)
                                                                               specified portions
                                                                               of the Tellico
                                                                               River; see
                                                                               17.84(e)(1)(ii)).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.84(e)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.84(e)(1)(iii)).

[[Page 52448]]

 
 
                                                                      * * * * * * *
              Clams
 
                                                                      * * * * * * *
Bean, Cumberland (pearlymussel)..  Villosa trabalis....  U.S.A. (AL, KY, TN,  NA.................  E                        15           NA           NA
                                                          VA).
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
 
                                                                      * * * * * * *
Blossom, tubercled (pearlymussel)  Epioblasma torulosa   U.S.A. (AL, IL, IN,  NA.................  E                        15           NA           NA
                                    torulosa.             KY, TN, WV).
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
Blossom, turgid (pearlymussel)...  Epioblasma turgidula  U.S.A. (AL, TN)....  NA.................  E                        15           NA           NA
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
Blossom, yellow (pearlymussel)...  Epioblasma            ......do...........  NA.................  E                        15           NA           NA
                                    florentina
                                    florentina.
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
Catspaw, (=purple cat's paw        Epioblasma..........  U.S.A. (AL, IL, IN,  NA.................  E                       394           NA           NA
 pearlymussel).                                           KY, OH, TN).
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
Clubshell........................  Pleurobema clava....  U.S.A. (AL, IL, IN,  NA.................  E                       488           NA           NA
                                                          KY, MI, OH, PA,
                                                          TN, WV).
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
 
                                                                      * * * * * * *
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--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).

[[Page 52449]]

 
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1).
 
                                                                      * * * * * * *
Fanshell.........................  Cyprogenia stegaria   U.S.A. (AL, IL, IN,  NA.................  E                       391           NA           NA
                                    (=irrorata).          KY, OH, PA, TN,
                                                          VA, WV).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
Lampmussel, Alabama..............  Lampsilis virescens.  U.S.A. (AL, TN)....  NA.................  E                        15           NA           NA
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
 
                                                                      * * * * * * *
Mapleleaf, winged (mussel).......  Quadrula fragosa....  U.S.A. (AL, IA, IL,  NA.................  E                       426           NA           NA
                                                          IN, KY, MN, MO,
                                                          NE, OH, OK, TN,
                                                          WI).
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
 
                                                                      * * * * * * *
Monkeyface, Appalachian            Quadrula sparsa.....  U.S.A. (TN, VA)....  NA.................  E                        15           NA           NA
 (pearlymussel).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
Monkeyface, Cumberland             Quadrula intermedia.  U.S.A. (AL, TN, VA)  NA.................  E                        15           NA           NA
 (pearlymussel).
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
 
                                                                      * * * * * * *
Mussel, oyster...................  Epioblasma            U.S.A. (AL, GA, KY,  NA.................  E                       602     17.95(f)           NA
                                    capsaeformis.         MS, NC, TN, VA).
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).

[[Page 52450]]

 
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
 
                                                                      * * * * * * *
Pearlymussel, birdwing...........  Lemiox rimosus......  U.S.A. (AL, TN, VA)  NA.................  E                        15           NA           NA
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
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--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
 
                                                                      * * * * * * *
Pearlymussel, dromedary..........  Dromus dromas.......  U.S.A. (AL, KY, TN,  NA.................  E                        15           NA           NA
                                                          VA).
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
 
                                                                      * * * * * * *
Pigtoe, fine-rayed...............  Fusconaia cuneolus..  U.S.A. (AL, TN, VA)  NA.................  E                        15           NA           NA
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
 
                                                                      * * * * * * *
Pigtoe, rough....................  Pleurobema plenum...  U.S.A. (AL, IN, KY,  NA.................  E                        15           NA           NA
                                                          PA, TN, VA).

[[Page 52451]]

 
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
Pigtoe, shiny....................  Fusconaia cor.......  U.S.A. (AL, TN, VA)  NA.................  E                        15           NA           NA
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
 
                                                                      * * * * * * *
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--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
 
                                                                      * * * * * * *
Pink, ring (mussel)..............  Obovaria retusa.....  U.S.A. (AL, IL, IN,  NA.................  E                       369           NA           NA
                                                          KY, OH, PA, TN,
                                                          WV).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
 
                                                                      * * * * * * *
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--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
 
                                                                      * * * * * * *
              Snails
 
                                                                      * * * * * * *
Riversnail, Anthony's............  Athearnia anthonyi..  U.S.A. (AL, GA, TN)  NA.................  E                       538           NA           NA
 Do..............................  ......do............  ......do...........  U.S.A. (AL--         XN                      709           NA     17.85(a)
                                                                               specified portions
                                                                               of the Tennessee
                                                                               River; see
                                                                               17.85(a)(1)).
 Do..............................  ......do............  ......do...........  U.S.A. (TN--         XN              ...........           NA     17.85(b)
                                                                               specified portions
                                                                               of the French
                                                                               Broad and Holston
                                                                               Rivers; see
                                                                               17.85(b)(1)).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 52452]]


0
3. Amend Sec.  17.84 as follows:
0
a. Revise paragraphs (e), (m), and (o) to read as set forth below; and
0
b. Add new paragraphs (q), (r), (s), and (t) 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.
    (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? 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.
    (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. This species is not currently known 
to exist in the Tellico River or its tributaries, the Shoal Creek or 
its tributaries, or 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 the NEP areas. However, if individuals move upstream or 
downstream or into tributaries outside any of the designated NEP areas, 
we would presume that those individuals came from the closest 
reintroduced population. We would then amend this regulation and 
enlarge the boundaries of the NEP area to include the entire range of 
the expanded population.
    (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.
    (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.
    (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

[[Page 52453]]

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.
    (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, 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.
    (iii) In the Lower French Broad and Lower Holston Rivers NEP area, 
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.
    (5) Note: Map of the Tellico River NEP area for spotfin chub, dusky 
darter, smoky madtom, and yellowfin madtom in Tennessee follows:
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[[Page 52454]]

[GRAPHIC] [TIFF OMITTED] TR13SE07.000

    (6) Note: Map of the Shoal Creek NEP area for spotfin chub and 
boulder darter in Tennessee and Alabama follows:

[[Page 52455]]

[GRAPHIC] [TIFF OMITTED] TR13SE07.001

    (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:

[[Page 52456]]

[GRAPHIC] [TIFF OMITTED] TR13SE07.002

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[[Page 52457]]

* * * * *
    (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 
this rule through our normal rulemaking process in order 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.
* * * * *
    (q) 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. 
This species is not currently known to exist in the Tellico River or 
its tributaries or 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 these NEP areas. However, if individuals move upstream or 
downstream or into tributaries outside either of the designated NEP 
areas, we would presume that these individuals came from the 
reintroduced population. We would then amend this rule and enlarge the 
boundaries of the NEP area to include the entire range of the expanded 
population.
    (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.
    (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.
    (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? 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.
    (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.
    (r) Smoky madtom (Noturus baileyi). (1) Where is the smoky madtom

[[Page 52458]]

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 and enlarge the 
boundaries of the NEP area to include the entire range of the expanded 
population.
    (iii) We do not intend to change the NEP designations to 
``essential experimental,'' ``threatened,'' or ``endangered'' within 
the NEP area. Additionally, we will not designate critical habitat for 
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? 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.
    (5) Note: Map of the NEP area for the smoky madtom in the Tellico 
River, Tennessee, appears immediately following paragraph (m)(6) of 
this section.
    (s) 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? 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.
    (5) Note: Map of the NEP area for the slender chub in the French 
Broad River and Holston River, Tennessee, appears immediately following 
paragraph (m)(7) of this section.
    (t) 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.

[[Page 52459]]

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? 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.
    (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.

0
4. Amend Sec.  17.85 by revising paragraph (a) introductory text 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
-----------------------------------------------------
Cumberland bean (pearlymussel)..  Villosa trabalis
tubercled blossom (pearlymussel)  Epioblasma torulosa
                                   torulosa
turgid blossom (pearlymussel)...  Epioblasma
                                   turgidula
yellow blossom (pearlymussel)...  Epioblasma
                                   florentina
                                   florentina
catspaw (purple cat's paw         Epioblasma
 pearlymussel).                    obliquata
                                   obliquata
clubshell.......................  Pleurobema clava
Cumberlandian combshell.........  Epioblasma
                                   brevidens
Alabama lampmussel..............  Lampsilis virescens
winged mapleleaf (mussel).......  Quadrula fragosa
Cumberland monkeyface             Quadrula intermedia
 (pearlymussel).
oyster mussel...................  Epioblasma
                                   capsaeformis
birdwing pearlymussel...........  Lemiox rimosus
cracking pearlymussel...........  Hemistena lata
dromedary pearlymussel..........  Dromus dromas
fine-rayed pigtoe...............  Fusconaia cuneolus
shiny pigtoe....................  Fusconaia cor
Anthony's riversnail............  Athearnia anthonyi
------------------------------------------------------------------------

* * * * *
    (b) Sixteen mollusks in the French Broad and Holston Rivers. The 
species in the following table comprise nonessential experimental 
populations (NEP):

------------------------------------------------------------------------
                Common name                        Scientific name
------------------------------------------------------------------------
Cumberland bean (pearlymussel)............  Villosa trabalis
Cumberlandian combshell...................  Epioblasma brevidens
fanshell..................................  Cyprogenia stegaria
Appalachian monkeyface (pearlymussel).....  Quadrula sparsa
Cumberland monkeyface (pearlymussel)......  Quadrula intermedia
oyster mussel.............................  Epioblasma capsaeformis
birdwing pearlymussel.....................  Lemiox rimosus
cracking pearlymussel.....................  Hemistena lata
dromedary pearlymussel....................  Dromus dromas
fine-rayed pigtoe.........................  Fusconaia cuneolus
rough pigtoe..............................  Pleurobema plenum
shiny pigtoe..............................  Fusconaia cor
orange-foot pimpleback (pearlymussel).....  Plethobasus cooperianus
ring pink (mussel)........................  Obovaria retusa
white wartyback (pearlymussel)............  Plethobasus cicatricosus
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

[[Page 52460]]

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? 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.
    (5) Note: Map of the NEP area in Tennessee for the 16 mollusks 
listed in paragraph (b) of this section follows:
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[[Page 52461]]

[GRAPHIC] [TIFF OMITTED] TR13SE07.003

* * * * *

    Dated: August 8, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-4320 Filed 9-12-07; 8:45 am]
BILLING CODE 4310-55-C