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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE92

Endangered and Threatened Wildlife and Plants; Proposed

Establishment of Nonessential Experimental Population Status for

Sixteen Freshwater Mussels (Alabama Lampmussel, Birdwing Pearlymussel,

Clubshell, Cracking Pearlymussel, Cumberland Bean Pearlymussel,

Cumberlandian Combshell, Cumberland Monkeyface Pearlymussel, Dromedary

Pearlymussel, Fine-Rayed Pigtoe, Oyster Mussel, Purple Cat's Paw

Pearlymussel, Shiny Pigtoe, Tubercled-blossom Pearlymussel, Turgid-

blossom Pearlymussel, Winged Mapleleaf Mussel, and Yellow-blossom

Pearlymussel) and One Freshwater Snail (Anthony's Riversnail) in the

Free-flowing Reach of the Tennessee River below the Wilson Dam, Colbert

and Lauderdale Counties, Alabama

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service (Service; also, ``we'', ``us'',

``our'') proposes to reintroduce 16 federally listed endangered mussels

(Alabama lampmussel (Lampsilis virescens), birdwing pearlymussel

(Conradilla caelata), clubshell (Pleurobema clava), cracking

pearlymussel (Hemistena lata), Cumberland bean pearlymussel (Villosa

trabalis), Cumberlandian combshell (Epioblasma brevidens), Cumberland

monkeyface pearlymussel (Quadrula intermedia), dromedary pearlymussel

(Dromus dromas), fine-rayed pigtoe (Fusconaia cuneolus), oyster mussel

(Epioblasma capsaeformis), purple cat's paw pearlymussel (Epioblasma

obliquata obliquata), shiny pigtoe (Fusconaia cor), tubercled-blossom

pearlymussel (Epioblasma torulosa torulosa), turgid-blossom

pearlymussel (Epioblasma turgidula), winged mapleleaf mussel (Quadrula

fragosa), and yellow-blossom pearlymussel (Epioblasma florentina

florentina)) and 1 federally listed endangered aquatic snail (Anthony's

riversnail (Athearnia anthonyi)) into historic habitat in the free-

flowing reach of the Tennessee River from about 1.4 river miles (RM)

(2.2 kilometers [km]) below Wilson Dam to the backwaters of Pickwick

Reservoir (RM 258.0 [412.8 km]) to (RM 246.0 [393.6 km]) in Colbert and

Lauderdale counties, Alabama. These reintroduced populations are

proposed to be classified as nonessential experimental populations

(NEP) under section 10(j) of the Endangered Species Act of 1973, as

amended (Act). Based on the evaluation of species experts and the

State, none of these species are currently known to exist in this river

reach or its tributaries. Ongoing surveys conducted by the Tennessee

Valley Authority (TVA) and the State of Alabama over the past 20 years

have failed to locate any individuals of the species proposed for NEP

status under this rule.

To ensure that any reintroduced species that move upstream to

Wilson Dam or into the tributaries are covered by these NEP

designations, we propose that the geographic boundaries of the NEPs

extend from the base of the Wilson Dam (RM 259.4 [414.0 km]) to the

backwaters of the Pickwick Reservoir (RM 246.0 [393.6 km]) and include

the lower 5 RM (8 km) of all tributaries that enter the Wilson Dam

tailwater. In the future, if any of the aforementioned mollusks are

found upstream beyond the lower 5 RM (8 km) of these tributaries, the

animals will be presumed to have come from the reintroduced NEP, and

the boundaries of the NEP will be enlarged to include the entire range

of the expanded population. No designation of critical habitat will be

made for any of these NEPs. Additionally, we do not intend to change

these NEPs from ``nonessential'' to ``essential'' or to ``threatened''

or ``endangered'' without the full cooperation of the State of Alabama

and other affected parties within the NEP areas. These proposed

reintroductions are recovery actions and part of a series of

reintroductions and other recovery actions the Service, Federal and

State agencies, and other partners are considering and conducting

throughout the species' historic ranges. The only change to the NEPs we

foresee would be elimination of the designations if the species are

recovered and removed from the Act's protection. This proposed rule

sets forth a plan for establishing the nonessential experimental

population and provides for limited allowable legal take of the

aforementioned mollusks within the defined NEP areas.

DATES: Comments from all interested parties must be submitted on or

before July 26, 1999.

ADDRESSES: Send comments and material concerning this proposal to the

State Supervisor, Asheville Field Office, U.S. Fish and Wildlife

Service, 160 Zillicoa Street, Asheville, North Carolina 28801. Comments

and material received will be available for public inspection, by

appointment, during

[[Page 28780]]

normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Mr. Richard G. Biggins, Fish and

Mollusk Recovery Coordinator (see Addresses section), telephone 704/

258-3939, Ext. 228, or facsimile 704/258-5330.

SUPPLEMENTARY INFORMATION:

Background

Legislative: The Endangered Species Act Amendments of 1982, Pub. L.

97-327, made significant changes to the Act, including the creation of

section 10(j), which provides for the designation of specific

populations of listed species as ``experimental populations'' (EP).

Under previous authorities of the Act, the Service was permitted to

reestablish (reintroduce) populations of a listed species into

unoccupied portions of its historic range for conservation and recovery

purposes. However, local opposition to reintroduction efforts, stemming

from concerns by some about potential restrictions, and prohibitions on

Federal and private activities contained in sections 7 and 9 of the

Act, reduced the effectiveness of reintroduction as a management tool.

Under section 10(j), a population of a listed species reestablished

outside its current range but within its probable historic range may be

designated as ``experimental,'' at the discretion of the Secretary of

the Interior, if reintroduction of the EP furthers the conservation of

the listed species. An EP must be separated geographically from

nonexperimental populations of the same species. Designation of a

population as an EP increases our management flexibility.

Additional management flexibility exists if the Secretary of the

Interior finds the EP to be ``nonessential'' to the continued existence

of the species. For purposes of section 7 (except section 7(a)(1),

which requires Federal agencies to use their authorities to conserve

listed species), NEPs located outside National Wildlife Refuge or

National Park lands are treated under 50 CFR part 17.83(a) as if they

are proposed for listing. This means that Federal agencies are

obligated to confer (as if the species were only proposed for listing),

as opposed to consult (required for a listed species), on any actions

authorized, funded, or carried out by them that are likely to

jeopardize the continued existence of the species (see ``Management''

section). NEPs located on National Wildlife Refuge or National Park

lands are treated as threatened, and formal consultation may be

required. Activities undertaken on private land are not affected by

section 7 of the Act unless they are authorized, funded, or carried out

by a Federal agency.

For the purposes of section 9 of the Act, endangered species

designated as EPs or NEPs are treated as threatened species. Therefore,

special rules can be written that lessen restrictions regarding take of

the covered listed species from the EP or NEP area [see under ``Special

rules--invertebrates (3)(i-iii)'' sections below].

Individual animals used in establishing an EP or NEP can be removed

from a source population if their removal is not likely to jeopardize

the continued existence of the species (see ``Status of Reintroduced

Populations'' section of these rules) and a permit has been issued in

accordance with 50 CFR part 17.22.

Justification for the proposal, listing history, and the dates of

any recovery plans developed for the 16 mussels and 1 snail proposed

for these NEPs are presented below in the ``Biological'' section.

Recovery plans for these species guide recovery efforts, outline

recommended recovery tasks, and set forth a series of recovery criteria

(e.g., number of restored historic populations) that must be met before

the species can be considered for removal from the Federal List of

Endangered and Threatened Wildlife and Plants.

Biological: In a December 9, 1996, letter from the Director of the

Alabama Division of Game and Fish (ADGF) to the Regional Director of

the Service's Southeast Region, the ADGF Director stated:

Because of recent improvements in water quality, due primarily

to the U.S. Environmental Protection Agency's Clean Water Act of

1971 and the Tennessee Valley Authority's committal to maintenance

of good water quality below their dams, mollusk populations below

Guntersville, Wheeler, and Wilson Dams are in excellent condition.

The Director of the ADGF further stated:

Although several species have been extirpated from these areas

in the past, both mussels and snails which now occur there are

abundant and a healthy range of size classes are present.

Based on the improving status of mollusks in these river reaches

and the fact that recent advances in mussel culture techniques will

likely lead to the availability of endangered juvenile mussels for

release, the ADGF Director requested that we consider designating NEP

status for the reintroduction of federally listed mussel and snail

species that historically existed in the riverine habitat below these

dams.

A Service biologist met with representatives of the ADGF in January

1997 to discuss the possibility of designating NEP status for the

reintroduction of federally listed mollusks into the tailwaters of

Guntersville, Wheeler, and Wilson Dams. The consensus at that meeting

was that: (1) the tailwaters of Wilson Dam (the remains of Muscle

Shoals) provided the best opportunity for successfully reestablishing

federally listed mollusks; and (2) the tailwaters of Guntersville and

Wheeler Dams should be considered for mollusk reintroductions at a

later time.

Muscle Shoals (sometimes referred to as Mussel Shoals), a 53-mile

(85-km) reach of the Tennessee River in Colbert and Lauderdale

Counties, Alabama, once supported the world's greatest assemblage of

freshwater mussels (van der Schalie 1939) and was one of the finest

mussel habitats ever known (Isom 1969). Ortmann (1924) stated that

there was no other place on earth that could compare to this shoal with

respect to freshwater mussels. This river reach historically contained

nearly 80 percent of all the mussel taxa known from the entire

Tennessee River system (ca. 100 taxa) and about 25 percent of the total

North American mussel fauna (ca. 300 taxa). Ortmann (1925) listed 69

mussel species and varieties from this shoal complex. Stansbery (1964),

using current nomenclatural concepts, excluding subspecies, and adding

a species not reported by Ortmann (1925), reported the mussel diversity

at 63 species. A biologist with the ADGF (J. Garner, personal

communication, 1997) combined historic distribution records (Ortmann

1925, van der Schalie 1939, Scruggs 1960, Stansbery 1964, Gooch et al.

1979) with personal observations and the observations of malacologists

(scientists who study molluscs) familiar with the area (P. Yokley and

T. Richardson, University of North Alabama, and S. Ahlstedt, U.S.

Geological Survey, personal communication, 1997) and found that a total

of 78 mussel taxa had been reported from Muscle Shoals. Goodrich (1931)

reported that Anthony's riversnail also occurred at Muscle Shoals.

However, the species is no longer found in the area (Garner, personal

communication, 1997).

With the completion of Wilson Dam (completed 1924), Wheeler Dam

(completed in 1936), and Pickwick Dam (completed in 1938), about 41 RM

(66 km) of shoal habitat were impounded. Although some mussel species

survived in the remaining 12 RM (19 km) of shoal habitat between Wilson

Dam and the backwaters of Pickwick Reservoir, much of the reach's

mussel diversity and abundance began to disappear. Based

[[Page 28781]]

largely on a 1931 survey of Muscle Shoals, van der Schalie (1939)

reported the resident mussel fauna at 40 species; Stansbery (1964)

listed 30 species from a 1963 mussel survey of remaining shoal habitat;

and Isom (1969) reported that 31 species existed on the shoal. Garner

(personal communication, 1997) reviewed current and recent historic

records (last 20 years) and concluded that possibly as many as 44

mussel species, including 6 federally listed mussels; fanshell

(Cyprogenia stegaria), orange-foot pimple back pearlymussel

(Plethobasus cooperianus), pink mucket (Lampsilis abrupta), ring pink

(Obovaria retusa), rough pigtoe (Pleurobema plenum), and white

wartyback pearlymussel (Plethobasus cicatricosus); are known or

presumed to still exist in the free-flowing riverine habitat below

Wilson Dam. (Note: As these six listed mollusks exist or are believed

to still exist in this river reach, they cannot be included in the NEP.

However, these populations could be augmented with artificially

propagated juveniles.) Based on a review of the most recent records, it

is presumed that 34 mussel species, including 16 federally listed

mussels and the Anthony's riversnail, have been extirpated from the

Muscle Shoals complex (Garner, personal communication, 1997).

Although many aquatic mollusks have been lost from Muscle Shoals,

habitat quality has been improving in the remaining shoal habitat in

recent years. The Tennessee Valley Authority (TVA) (1993), reporting on

their Clean Water Initiative, rated macroinvertebrates below Wilson Dam

as excellent. They stated: ``The 1993 results indicate continued

improvement in the benthos [bottom dwelling organisms].'' The Reservoir

Fish Assemblage Index, a measure TVA uses to rate the health of the

fish fauna at sites throughout the Tennessee River valley, was rated as

good in the Wilson Dam tailwater during 1993, 1994, and 1996; no figure

was given for 1995 (E. Scott, TVA, personal communication, 1997).

Additionally, the ADGF Director, in his December 9, 1996, letter to the

Service, points to the improving water quality and the improved health

of mussel and snail populations below Wilson Dam and other TVA dams on

the Tennessee River in Alabama.

The Tennessee River from about 1.4 RM (2.2 km) below Wilson Dam to

the backwaters of Pickwick Reservoir [about 12 RM (19 km)] now appears

suitable for a mollusk reintroduction effort for several reasons, as

follows: (1) habitat quality in the Wilson Dam tailwater has improved;

(2) existing aquatic mollusk populations have responded positively to

the improved habitat quality; (3) Muscle Shoals historically contained

a rich mollusk fauna, and some of the shoal habitat that once supported

this fauna still remains; and (4) the reestablishment of listed

mollusks to historic habitat is identified as a high-priority task in

listed aquatic mollusk recovery plans. Based on these factors and

discussions with knowledgeable individuals with regard to the

endangered mollusks of the Tennessee River, we propose to reintroduce

16 federally endangered mussels (Alabama lampmussel (Lampsilis

virescens), birdwing pearlymussel (Conradilla caelata), clubshell

(Pleurobema clava), cracking pearlymussel (Hemistena lata), Cumberland

bean pearlymussel (Villosa trabalis), Cumberlandian combshell

(Epioblasma brevidens), Cumberland monkeyface pearlymussel (Quadrula

intermedia), dromedary pearlymussel (Dromus dromas), fine-rayed pigtoe

(Fusconaia cuneolus), oyster mussel (Epioblasma capsaeformis), purple

cat's paw pearlymussel (Epioblasma obliquata obliquata), shiny pigtoe

(Fusconaia cor), tubercled-blossom pearlymussel (Epioblasma torulosa

torulosa), turgid-blossom pearlymussel (Epioblasma turgidula), winged

mapleleaf mussel (Quadrula fragosa), and yellow-blossom pearlymussel

(Epioblasma florentina florentina)) and 1 federally listed endangered

aquatic snail (Anthony's riversnail (Athearnia anthonyi)) into historic

habitat in the free-flowing reach of the Tennessee River from about 1.4

RM (2.2 km) below Wilson Dam to the backwaters of Pickwick Reservoir,

Tennessee River, Colbert and Lauderdale counties, Alabama. These

reintroduced populations are proposed to be classified as NEPs under

section 10(j) of the Act (see the ``Status of Reintroduced

Populations'' section for a description of the proposed NEPs).

The Alabama lampmussel (Lampsilis virescens) (Lea 1858), a

Tennessee River system endemic, was listed as an endangered species on

June 14, 1976 (41 FR 24062). A recovery plan for this species was

completed in July 1985 (Service 1985a). The Alabama lampmussel was

historically known from seven rivers in the Tennessee River system

(Ortmann 1918, Bogan and Parmalee 1983, Service 1985a). The species was

last collected at Muscle Shoals prior to 1925 (Ortmann 1925) and is

presumed to be extirpated from the shoal. Currently, the species is

known to survive only in the upper Paint Rock River system, Jackson

County, Alabama (Service 1985a). The delisting objectives in the

recovery plan call for: (1) restoring the viability of the population

in the Paint Rock River and its tributaries; (2) reestablishing or

discovering viable populations in two additional rivers; and (3)

ensuring there are no foreseeable threats to the continued existence of

any of the populations. No downlisting criteria are provided in the

recovery plan.

The birdwing pearlymussel (Conradilla caelata) (Conrad 1834) was

listed as an endangered species on June 14, 1976 (41 FR 24064), and a

recovery plan for the species was finalized in July 1984 (Service

1984a). This species was originally known from 11 rivers in the

Tennessee River system, and one record exists from an unknown location

in the Cumberland River. The species was last collected from Muscle

Shoals prior to 1925 (Ortmann 1925) and is presumed to be extirpated

from the shoal. It currently survives in the Clinch and Powell Rivers

in Tennessee and Virginia, and in the Duck and Elk Rivers, Tennessee

(Service 1984a). The delisting objectives presented in the recovery

plan call for: (1) restoring the viability of the populations in the

Clinch and Powell Rivers; (2) reestablishing or discovering viable

populations in three additional rivers (only two rivers if Columbia Dam

on the Duck River is not built); (3) ensuring there are no foreseeable

threats to the continued existence of any of the populations; and (4)

noticeable improvements in coal-related problems and substrate quality

in the Powell River and no increase in coal-related sedimentation in

the Clinch River. No downlisting criteria are given in the recovery

plan.

The clubshell (Pleurobema clava) (Lamarck 1819) was listed as an

endangered species on January 22, 1993 (58 FR 5642). A recovery plan

for the species was finalized in September 1993 (Service 1993a). This

widespread species occurred in the Ohio River and Lake Erie basins but

now survives in only a few small and isolated populations in both

basins (Service 1993a). It was last found at Muscle Shoals prior to

1925 (Ortmann 1925) and is presumed to no longer survive in this river

reach. The downlisting objectives in the recovery plan call for the

establishment of ten viable populations and ensuring there are no

foreseeable threats to the continued existence of any of the

populations. The delisting objectives call for: (1) the establishment

of ten viable populations; (2) populations to be large enough to

survive a single adverse ecological event; and (3) ensuring that there

are no foreseeable threats to the continued existence of any of the

populations.

[[Page 28782]]

The cracking pearlymussel (Hemistena lata) (Rafinesque 1820) was

listed as an endangered species on September 28, 1989 (54 FR 39853). A

recovery plan for the species was finalized in July 1991 (Service

1991). This widespread species historically occurred in the Ohio,

Cumberland, and Tennessee River systems (Bogan and Parmalee 1983,

Service 1991). It has been extirpated throughout much of its range. It

was last collected at Muscle Shoals prior to 1925 (Ortmann 1925) and is

presumed to no longer survive in this river reach. It is presently

known to survive at only a few shoals in the Clinch and Powell Rivers

in Tennessee and Virginia (Bogan and Parmalee 1983, Neves 1991). This

species possibly survives in the Green River, Kentucky, and below

Pickwick Reservoir in the Tennessee River, Tennessee (Service 1991).

The downlisting objectives in the recovery plan call for the

establishment of five viable populations and ensuring that there are no

foreseeable threats to the continued existence of any of the

populations. The delisting objectives call for the establishment of

eight viable populations.

The Cumberland bean pearlymussel (Villosa trabalis) (Conrad 1834)

was listed as an endangered species on June 14, 1976 (41 FR 24064). A

recovery plan for the species was approved August 22, 1984 (Service

1984b). This species was historically known from ten river systems in

the Cumberland and Tennessee river basins (Service 1984b). It was last

collected at Muscle Shoals, which may represent its type locality,

prior to 1925 (Ortmann 1925) and is presumed to be extirpated from the

shoal. The Cumberland bean currently survives only in the Hiwassee

River in Tennessee and in Buck Creek, the Little South Fork of the

Cumberland River, and the Rockcastle River system in Kentucky (Service

1984b). The delisting objectives in the recovery plan call for: (1)

restoring the viability of its populations in Buck Creek, the

Rockcastle River, and the Little South Fork River in Kentucky; (2)

reestablishing or discovering viable populations in two additional

rivers; and (3) ensuring that there are no foreseeable threats to the

continued existence of any of the populations. No downlisting criteria

are given in the recovery plan.

The Cumberland monkeyface pearlymussel (Quadrula intermedia)

(Conrad 1836) was listed as an endangered species on June 24, 1976 (41

FR 24064). A recovery plan for the species was completed in November

1983 (Service 1983a). This species was historically known from 11

rivers in the Tennessee River system (Service 1983a). It was last

collected from Muscle Shoals around 1900 by R.E. Call and A.A. Hinkley

(Ortmann 1925) and is presumed to be extirpated from the shoal.

Currently, the species survives only at a few shoals in the Powell

River, Tennessee and Virginia, and the Elk and Duck Rivers, Tennessee

(Service 1983a). The delisting objectives presented in the recovery

plan call for: (1) restoring the viability of the populations in the

Powell and Elk Rivers; (2) reestablishing or discovering viable

populations in two additional rivers; and (3) ensuring that there are

no foreseeable threats to the continued existence of any of the

populations. No downlisting criteria are given in the recovery plan.

The Cumberlandian combshell (Epioblasma brevidens) (Lea 1831) was

listed as an endangered species on January 10, 1997 (62 FR 1647). This

mussel was historically distributed throughout much of the

Cumberlandian Region of the Tennessee and Cumberland River drainages in

Alabama, Kentucky, Tennessee, and Virginia (Gordon 1991). Currently,

only small populations survive in a few river reaches in both river

systems (Gordon 1991). The species was last collected from Muscle

Shoals prior to 1925 (Ortmann 1925) and is presumed to be extirpated

from the shoal. Although no Cumberlandian combshell recovery plan has

been developed, a recovery outline, which briefly enumerates

anticipated recovery actions, was developed prior to the final listing

decision. The recovery outline identified reintroduction into historic

habitat as a method that would likely be needed to recover the species.

The dromedary pearlymussel (Dromus dromas) (Lea 1845) was listed as

an endangered species on June 24, 1976 (41 FR 24064). A recovery plan

for the species was completed in November 1983 (Service 1983b). This

species was historically widespread in the Cumberland and Tennessee

River systems (Bogan and Parmalee 1983). It was last collected at

Muscle Shoals prior to 1931 (van der Schalie 1939) and is presumed to

be extirpated from the shoal. The species survives at a few shoals in

the Powell and Clinch Rivers, Tennessee and Virginia, and possibly in

the Cumberland River, Tennessee (Service 1983b, Neves 1991). The

delisting objectives in the recovery plan call for: (1) restoring the

viability of the populations in the Clinch and Powell Rivers; (2)

reestablishing viable populations in three additional rivers; and (3)

ensuring there are no foreseeable threats to the continued existence of

any of the populations. No downlisting criteria are provided in the

recovery plan.

The fine-rayed pigtoe (Fusconaia cuneolus) (Lea 1840) was listed as

an endangered species on June 14, 1976 (41 FR 24064). A recovery plan

for the species was approved in September 1984 (Service 1984c). This

species was historically known from 15 Tennessee River tributaries and

is currently known from seven rivers (Service 1984c). The species was

last collected from Muscle Shoals prior to 1925 (Ortmann 1925) and is

presumed to be extirpated from the shoal. The recovery objectives call

for: (1) restoring the viability of the populations in the Clinch,

Powell, and North Fork Holston Rivers and in the Little River and

Copper Creek (Clinch River tributaries); (2) reestablishing or

discovering one additional viable population; and (3) ensuring there

are no foreseeable threats to the continued existence of any of the

populations. No downlisting criteria are given.

The oyster mussel (Epioblasma capsaeformis) (Lea 1834) was listed

as an endangered species on January 10, 1997 (62 FR 1647). This mussel

was historically distributed throughout much of the Cumberlandian

Region of the Tennessee and Cumberland River drainages (Gordon 1991).

Currently, only small populations survive in a few river reaches in

both river systems (Gordon 1991). The species was last collected from

Muscle Shoals prior to 1925 (Ortmann 1925) and is presumed to be

extirpated from the shoal. Although no oyster mussel recovery plan has

been developed, a recovery outline, which briefly enumerates

anticipated recovery actions, was developed prior to the final listing

decision. The recovery outline identified reintroduction into historic

habitat as a method that would likely be needed to recover the species.

The purple cat's paw pearlymussel (Epioblasma obliquata obliquata)

(Rafinesque 1820) was listed as an endangered species on July 10, 1990

(55 FR 28210). A recovery plan for the species was finalized in March

1992 (Service 1992). This once widespread species historically occurred

in the larger rivers of the Ohio River system (Service 1992). The

species is currently known from two apparently nonreproducing

populations (Green River, Kentucky, and Cumberland River, Tennessee)

and one reproducing population in Killbuck Creek, Muskingum River

system, Ohio. It was last collected at Muscle Shoals by A. E. Ortmann

sometime prior to 1925 (Ortmann 1925) and is presumed to no longer

survive in this river reach. The downlisting objectives in the recovery

[[Page 28783]]

plan call for: (1) the establishment of four viable populations; (2)

two naturally produced year classes to exist in each of the four

populations; (3) biological studies on the species to have been

completed; and (4) recovery measures to have resulted in an increase in

population density and/or length of the river inhabited. The delisting

objectives call for the establishment of six viable populations in

addition to criteria (2) through (4) above.

The shiny pigtoe (Fusconaia cor) (Conrad 1834) was listed as an

endangered species on June 14, 1976 (41 FR 24064). A recovery plan for

the species was completed in July 1984 (Service 1984d). This species

was historically known from the Tennessee River and ten of its

tributaries. It is currently known from five river systems; the Clinch,

Powell, North Fork Holston, Elk, and Paint Rock (Service 1984d). The

species was last collected at Muscle Shoals prior to 1925 (Ortmann

1925) and is presumed to be extirpated from the shoal. The delisting

objectives call for: (1) restoring the viability of the populations in

the Clinch, Powell, North Fork Holston, and Paint Rock Rivers; (2)

reestablishing or discovering one additional viable population; and (3)

ensuring there are no foreseeable threats to the continued existence of

any of the populations. No downlisting criteria are provided in the

recovery plan.

The tubercled-blossom pearlymussel (Epioblasma torulosa torulosa)

(Rafinesque 1820) was listed as an endangered species on June 14, 1976

(41 FR 24062). A recovery plan for the species was completed in January

1985 (Service 1985b). This species was historically known from nine

rivers in the Ohio River system (Service 1985b). The species was last

collected at Muscle Shoals around 1900 by A. A. Hinkley (Ortmann 1925);

it has not been collected anywhere since 1969 (Stansbery 1976, Service

1985b). However, the Service continues its efforts to determine whether

any extant populations occur and the species is therefore included in

these NEP proposals. If the species is found and can be propagated, the

area below Wilson Dam could be considered for a reintroduction effort

without going through a separate NEP rulemaking. No downlisting or

delisting criteria are presented in the recovery plan. However, the

plan does call for recovery efforts to be reevaluated if the species is

found.

The turgid-blossom pearlymussel (Epioblasma turgidula) (Lea 1858)

was listed as an endangered species on June 14, 1976 (41 FR 24062). A

recovery plan for the species was completed in January 1985 (Service

1985b). This widespread species was historically known from 12 rivers

in Arkansas, Missouri, Tennessee, and Alabama (Service 1985b). The

species was last collected at Muscle Shoals (its type locality, along

with the Cumberland River, Tennessee) prior to 1925 (Ortmann 1925); it

has not been collected anywhere since the early 1960s (Stansbery 1971,

Service 1985b). However, the Service continues its efforts to determine

whether any extant populations occur and the species is therefore

included in these NEP proposals. If the species is found and can be

propagated, the area below Wilson Dam could be considered for a

reintroduction effort without going through a separate NEP rulemaking.

No downlisting or delisting criteria are presented in the recovery

plan. However, the plan does call for recovery efforts to be

reevaluated if the species is found.

The winged mapleleaf mussel (Quadrula fragosa) (Conrad 1835) was

listed as an endangered species on June 20, 1991 (56 FR 28349). The

final recovery plan for the species was completed in June 1997 (Service

1997). This species was historically reported from 34 rivers in 12

states in the Mississippi River drainage (Service 1997). It is now

believed to be extirpated from all but one remnant population in the

St. Croix River between Minnesota and Wisconsin. The species was

reported from the Tennessee River below Wilson Dam by Scruggs (1960).

However, our 1997 Recovery Plan reports that the record may be the

mapleleaf (Q. quadrula) instead of the winged mapleleaf. As the winged

mapleleaf was historically reported from the Wilson Dam tailwater, it

is included in this proposed NEP. However, because of the question

regarding the identification of the collection, the winged mapleleaf

will not be released into the NEP area until this question is resolved.

The downlisting objectives in the recovery plan call for: (1) the

existence of three distinct viable populations in at least two

tributaries of the Mississippi River basin; and (2) the long-term

protection of all three populations. Delisting objectives call for: (1)

the existence of five distinct viable populations; and (2) the long-

term protection of all five populations.

The yellow-blossom pearlymussel (Epioblasma florentina florentina)

(Lea 1857) was listed as an endangered species on June 14, 1976 (41 FR

24062). A recovery plan for the species was completed in January 1985

(Service 1985b). This species was historically known from 13 rivers in

the Cumberland and Tennessee River systems (Service 1985b). The species

was last collected at Muscle Shoals, its type locality, prior to 1925

(Ortmann 1925); it has not been collected anywhere in over 50 years

(Stansbery 1971, Service 1985b). However, the Service continues its

efforts to determine whether any extant populations occur and the

species is therefore included in these NEP proposals. If the species is

found and can be propagated, the area below Wilson Dam could be

considered for a reintroduction effort without going through a separate

NEP rulemaking. No downlisting or delisting criteria are presented in

the recovery plan; however, it does call for the recovery efforts to be

reevaluated if the species is found.

Anthony's riversnail (Athearnia anthonyi) was listed as an

endangered species on April 15, 1994 (59 FR 17994). The final recovery

plan for the species was completed in August 1997 (Service 1997). This

snail was historically found in the Tennessee River and the lower

reaches of some of its tributaries from Muscle Shoals, Colbert and

Lauderdale counties, Alabama, upstream to the Clinch and Nolichucky

Rivers, Tennessee (Bogan and Parmalee 1983). Currently, two populations

are known to survive; one in Limestone Creek, Limestone County,

Alabama, and one in the Tennessee River and the lower portion of the

Sequatchie River (a tributary to this reach of the Tennessee River),

Marion County, Tennessee, and Jackson County, Alabama (Service 1996).

It is apparently extirpated from Muscle Shoals (Garner, personal

communication, 1997). The downlisting objectives in the recovery plan

call for: (1) the establishment of four viable populations; (2) two

naturally produced year classes to exist in each of the four

populations; (3) biological studies on the species to have been

completed; (4) noticeable improvements in water and substratum quality

where habitat is degraded; (5) each of the populations to be protected

from present and foreseeable threats; and (6) all four populations to

remain stable or increase over a 10-year period. The delisting

objectives call for the establishment of six viable populations in

addition to criteria (2) through (5) above and for six populations to

remain stable or increase over a 15-year period.

The recovery objectives in the recovery plans and recovery outlines

for the aforementioned species generally agree that, to reach recovery:

(1) existing populations should be restored to viable

[[Page 28784]]

levels; (2) the species should be protected from threats to their

continued existence; and (3) viable populations should be reestablished

in historic habitat. The number of secure, viable populations (existing

and restored) needed to achieve recovery varies from species to

species, depending on the extent of the species' former range (i.e.,

species that were once widespread require a greater number of

populations for recovery than species that were historically more

restricted in distribution). However, the reestablishment of historic

populations is a critical component to the recovery of all these

species.

Preliminary Notification and Comment

On June 18, 1997, we notified (by mail, 54 letters) potentially

affected congressional offices, Federal and State agencies, local

governments, and interested parties that we were considering proposing

NEP status for 17 mollusks. We received six written responses.

TVA suggested that although reintroduced Cumberlandian mussel

species might survive below Wilson Dam, they might not be able to

reproduce there. Based on the improved reproductive success of the

mussel fauna below Wilson Dam, we are optimistic that at least some of

the Cumberlandian species will reproduce. However, even if these

species are unable to reproduce, the establishment of nonreproducing

populations of listed Cumberlandian mussels will assist in the recovery

effort. Mussels are long-lived (40 years or more); thus, any surviving

mussels could be available to researchers and managers for a number of

years after they are reintroduced.

TVA cautioned that current conditions (i.e., variations in hydro

power discharges, seasonal low dissolved oxygen levels, urban related

impacts) and potential impacts (i.e., invasion of zebra mussels,

navigation improvements, and additional municipal developments) are

likely to limit the success of mollusk reintroductions below Wilson

Dam. We agree that there are many factors that could limit the success

of these proposed mollusk reintroductions, but there is always a risk

of failure with any EP reintroduction. There are only a few river

reaches in the Tennessee River basin that appear to have suitable

habitat for reintroductions. Our goal is to recover the region's

federally listed mussels; therefore, we will attempt to reestablish

populations in as many reaches as possible.

TVA encouraged us to evaluate the reintroduction sites before any

mollusks are released. The ADGF, in cooperation with the Service, is

evaluating specific reaches of the Wilson Dam tailwaters for

reintroductions.

Although TVA expressed some concerns regarding the potential

success of reintroducing listed mollusks below Wilson Dam, their

response to the notice was generally positive. They agreed that now

(because of advances in mussel propagation technology and water quality

improvements below many of their reservoirs) ``* * * may be an

appropriate time to start reintroducing and augmenting mussel stocks

within their historic ranges * * *'' in the Tennessee River system.

They further stated that designating NEPs below Wilson Dam would not

result ``* * * in any additional regulatory burden for TVA,'' and they

offered to assist in reintroducing mollusks below Wilson Dam. We

appreciate TVA's comments and their generally positive assessment of

the notice, and we especially appreciate their offer to assist in

mussel reintroductions below Wilson Dam. Our agencies have had a long

and productive relationship with regard to mussel recovery issues, and

we look forward to a continued partnership that will work toward

recovering the Tennessee River valley's aquatic mollusk resources.

The Director of the ADGF reconfirmed his support for the project

and stated: ``This is an opportunity to take a major step towards

restoring the native fauna of our rivers to their historic diversity.''

Although the proposed action will not occur within the State of

Tennessee, the Executive Director of the Tennessee Wildlife Resources

Agency (TWRA) supported the designation of NEPs and mollusk

reintroductions below Wilson Dam. He stated:

We understand that this is part of the ongoing program conducted

by state and federal agency partners to improve the status of these

mollusks where they no longer need endangered species protection.

A consulting firm (Firm) for the City of Florence, Alabama, (City)

provided information on the City's plans to construct a submerged

muliport diffuser in the Tennessee River below Wilson Dam as part of a

sewer system improvement project. The Firm stated:

We hope that you will coordinate your department's restocking

program with the City's plans to avoid the areas that may be

affected by both the relocation program and subsequent diffuser

construction.

We are aware of the City's proposed construction project, and we

assured the Firm and the City that the reintroduction of endangered

mollusks under this proposed NEP designation would not negatively

impact the City's proposed sewer system improvement project.

Letters of support were also received from the University of North

Alabama and a local chapter of the Sierra Club.

Status of Reintroduced Populations

We propose to reintroduce populations of 16 mussels (Alabama

lampmussel, birdwing pearlymussel, clubshell, cracking pearlymussel,

Cumberland bean pearlymussel, Cumberlandian combshell, Cumberland

monkeyface pearlymussel, dromedary pearlymussel, fine-rayed pigtoe,

oyster mussel, purple cat's paw pearlymussel, shiny pigtoe, tubercled-

blossom pearlymussel, turgid-blossom pearlymussel, winged mapleleaf

mussel, and yellow-blossom pearlymussel))and 1 freshwater snail

(Anthony's riversnail) in the free-flowing reach of the Tennessee River

from about 1.4 river miles (RM) (2.2 kilometers [km]) below Wilson Dam

to the backwaters of Pickwick Reservoir (RM 258.0 [412.8 kilometers

[km]) to RM 246.0 [393.6 km])in Colbert and Lauderdale counties,

Alabama.

These populations are proposed to be designated NEPs according to

the provisions of section 10(j) of the Act. None of these species are

known to currently exist in this river reach or in tributaries to this

reach nor are they expected to populate the area immediately below

Wilson Dam. Thus, to give the regulatory relief provided by a NEP

designation for any reintroduced listed mollusk that may move upstream

to the base of Wilson Dam or into tributaries of this reach, we propose

that the geographic boundaries of the NEP designation extend from the

base of the Wilson Dam (RM 259.4 [414.0 km] to the backwaters of the

Pickwick Reservoir (RM 246.0 [393.6 km]) and include the lower 5 RM (8

km) of all tributaries that enter the river reach from the tailwaters

of Wilson Dam to the backwaters of Pickwick Reservoir. Additionally, if

any of the reintroduced endangered mollusks move upstream beyond the

lower 5 RM (8 km) of these tributaries, the animals will be presumed to

have come from the reintroduced NEP, and the boundaries of the NEP will

be enlarged to include the entire range of the expanded population.

Thus, the proposed NEP designation includes the following: the free-

flowing reach of the Tennessee River from the base of Wilson Dam

downstream to the backwaters of Pickwick Reservoir (about 12 RM [19

km]) and 5 RM (8 km) upstream of all tributaries to this reach in

Colbert and Lauderdale Counties, Alabama.

[[Page 28785]]

We considered designating EP status instead of NEP status for these

reintroductions. However, the designation of NEP status, which provides

for the maximum degree of management flexibility and regulatory relief

was necessary to gain the support of local governments, State agencies,

industry, local communities, and landowners. Therefore, we believe it

is the appropriate designation for reintroducing these species under

section 10(j). We will ensure, through our section 10 permit authority

and section 7 consultation process, that the use of animals from any

donor population for this proposed reintroduction project is not likely

to jeopardize the continued existence of the species or the donor

population. Therefore, if any introduced populations become established

and are subsequently lost, it would not reduce the likelihood of the

species' survival in the wild or jeopardize its continued existence. In

fact, the anticipated success of these reintroductions will enhance the

species' conservation status by extending their present range into

currently unoccupied historic habitat.

Location of Reintroduced Population

The sites for the proposed reintroductions (free-flowing reach of

the Tennessee River between Wilson Dam and the backwaters of Pickwick

Reservoir, Colbert and Lauderdale Counties, Alabama) are within the

proposed NEP areas; these NEP areas are totally isolated from existing

populations of these species by large reservoirs; and none of these

mollusks are known to occur in reservoir habitat. These reservoirs

will, therefore, act as barriers to the expansion of these species

upstream or downstream in the main stem of the Tennessee River and

ensure that these proposed NEPs remain geographically isolated and

easily identifiable as distinct populations.

Management

The proposed dates for these reintroductions, the specific sites

(between about 1.4 river miles RM [2.2 km] below Wilson Dam to the

backwaters of Pickwick Reservoir RM 258.0 (412.8 km) to RM 246.0 (393.6

km) in Colbert and Lauderdale counties, Alabama) where the mussel and

snail species will be released, and the actual number of individuals to

be released cannot be determined at this time. Individual endangered

mussels to be used in the proposed NEP reintroductions will be,

primarily, artificially propagated juveniles. However, it is possible

that wild adult stock of some mussels could be released into the area

(see below). Mussel propagation and juvenile rearing technology are

currently being developed using nonendangered surrogate species, and it

is expected that juvenile endangered mussels of some species will be

available for the reintroduction effort within 2 to 3 years. The parent

stock for juveniles to be used for the NEPs will come from existing

wild populations, and in most cases they will be returned live to that

wild population. Under some circumstances, adult endangered mussels

could be permanently relocated to propagation facilities or be moved

directly into the NEP areas. Anthony's riversnails will be collected

from a large naturally reproducing population located in the Tennessee

River, Jackson County, Alabama, and Marion County, Tennessee, and

relocated directly into the NEP area.

The permanent removal of adults from the wild for their use in

reintroduction efforts could occur when one or more of the following

conditions exists: (1) sufficient adult endangered mussels and

Anthony's riversnails are available within a donor population to

withstand the loss without jeopardizing their continued existence; (2)

the species must be removed from an area because of an imminent threat

that is likely to eliminate the population or specific individuals

present; or (3) when the donor population is not reproducing. To ensure

that the nonlethal use of a parent stock or the permanent removal of

adults is not likely to jeopardize the continued existence of the donor

population of the species, a section 10 (a)(1)(A) permit will be issued

before any take occurs. We will coordinate these actions with the

appropriate lead Regions and State natural resources agencies.

We do not believe these proposed reintroductions would conflict

with existing or proposed human activities or hinder public utilization

of the proposed NEP areas. If this proposed rule is finalized, the NEPs

would be treated as threatened species under all provisions of the Act,

except section 7 (see ``Legislative'' section of these rules). The NEPs

are treated under section 7(a)(4) of the Act as species proposed to be

listed under the Act. For proposed species, section 7(a)(4) requires

that Federal agencies confer with the Service on actions that the

Federal agency itself finds are likely to jeopardize a species'

continued existence. We then produce a conference report outlining

measures that could be taken to avoid jeopardy. However, the measures

we recommend are only advisory. The Federal agency is not required to

implement any of the recommended measures, and the Act does not

prohibit the Federal agency from implementing the Federal action as was

originally planned. Therefore, these proposed reintroductions are not

expected to conflict with existing or proposed Federal activities in

the NEP areas.

The Act, under section 10(j), allows special rules (protective

regulations), which contain all prohibitions and exceptions regarding

the taking of individual animals, to be written for experimental

populations. Thus, section 17.85 (a)(3) of the proposed special rule

defines the circumstances under which it will be a violation of the Act

to take animals from these introduced populations. We do not expect

these proposed reintroductions to conflict with existing or proposed

Federal activities or to hinder the public's utilization of the NEP

areas. We will work cooperatively with private landowners and will not

impose any land-use restrictions on private lands for the recovery of

these species without prior concurrence from the landowners.

Public Comments Solicited

We intend for any rule that is finally adopted to be as effective

as possible. Therefore, we invite the public, concerned government

agencies, the scientific community, industry, and other interested

parties to submit comments or recommendations concerning any aspect of

this proposed rule (see ``Addresses'' section).

Executive Order 12866 requires each agency to write regulations

that are easy to understand. We invite your comments on how to make

this rule easier to understand including answers to questions such as

the following: (1) Are the requirements in the rule clearly stated?,

(2) Does the rule contain technical language or jargon that interferes

with its clarity?, (3) Does the format of the rule (grouping and order

of sections, use of headings, paragraphing, etc.) aid or reduce its

clarity?, (4) Would the rule be easier to understand if it were divided

into more (but shorter) sections? (A ``section'' is preceded by the

symbol ``Sec. '' and a numbered heading; for example, Sec. 17.11

Endangered and threatened wildlife), (5) Is the description of the rule

in the ``Supplementary Information'' section of the preamble helpful in

understanding the rule? What else could we do to make the rule easier

to understand?

Send a copy of any comments that concern how we could make this

rule easier to understand to: Office of Regulatory Affairs, Department

of the Interior, room 7229, 1849 C Street, NW, Washington, DC 20240.

You may also e-

[[Page 28786]]

mail the comments to this address: E[email protected]

However, as noted earlier, all comments related to the proposed

reintroduction to establish the nonessential experimental populations

should be directed to the Service's Asheville, North Carolina Field

Office (see ADDRESS section). Comments must be received within 60 days

of publication of this proposed rule in the Federal Register.

Any final decision on this proposed rule will take into

consideration the comments and any additional information received.

These may lead to a final rule that differs from this proposal.

National Environmental Policy Act

We have determined that the issuance of a proposed rule for these

NEPs is categorically excluded under our National Environmental Policy

Act procedures (516 DM 6, Appendix 1.4 B (6)), which states:

* * * The reintroduction or supplementation (e.g., stocking) of

native, formerly native, or established species into suitable

habitat within their historical or established range, where no or

negligible environmental disturbances are anticipated * * *.

Paperwork Reduction Act

This proposed rule contains no collections of information requiring

approval from the Office of Management and Budget under 44 U.S.C. 3501

et seq.

Required Determinations

This proposed rule to designate NEP status for 16 mussels and 1

freshwater snail in the free-flowing reach of the Tennessee River below

Wilson Dam in Colbert and Lauderdale Counties, Alabama, will not have

significant economic impact on a substantial number of small entities

under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.).

Shellfish harvesting in the United States is dominated by small

firms. Of the 441 firms included in Standard Industrial Code 0913 for

``establishments primarily engaged in the catching or taking of

shellfish,'' 421 have fewer than 20 employees, 353 have fewer than five

employees. These figures include saltwater shellfishing (lobsters,

crabs, clams, etc.) so freshwater mussel harvesting is only a fraction

of this small industry (Office of Advocacy, U.S. Small Business

Administration based on data provided by the Department of Commerce,

Bureau of the Census).

The rule is not expected to have any impact on the use of the

river. Mussels are harvested from the relevant reach primarily by

diving from one or two person boats. Harvesters are seeking larger

mussels of a dozen specific permitted species to be used as seed in the

Japanese cultured pearl industry. Two endangered species are already

present in the area and divers are careful to identify species in situ

to avoid carrying extra weight to the surface. The added species are

not expected to complicate this task. Other river activities will not

be affected.

The final rule will not significantly change costs to industry or

government. Furthermore, this rule produces no adverse effects on

competition, employment, investment, productivity, innovation, or the

ability of United States enterprises to compete with foreign-based

enterprises in domestic or export markets.

This rule is not a significant regulatory action and was not

subject to review by the Office of Management and Budget under

Executive Order 12866. It is not a major rule under 5 U.S.C. 804(2),

the Small Business Regulatory Enforcement Fairness Act. This rule will

not have an annual economic effect of $100 million or adversely affect

an economic sector, productivity, jobs, the environment, or other units

of government. A cost-benefit and economic analysis not required. The

area affected by this rule consists of a very limited and discrete

geographic segment (only 12 river miles) of the Tennessee River in

northern Alabama. Therefore no significant impacts on existing economic

activities associated with this stream reach as a result of this rule

are anticipated.

This rule will not create inconsistencies with other agencies'

actions. Designating reintroduced populations of federally listed

species as NEPs significantly reduces the Act's regulatory requirements

regarding the reintroduced listed species within the NEP. Because of

the substantial regulatory relief provided by NEP designations, the

Service does not believe the reintroduction of these mollusks would

conflict with existing or proposed human activities or hinder public

utilization of the Tennessee River system.

This rule will not materially affect entitlements, grants, user

fees, loan programs, or the rights and obligations of their recipients.

Because there are no expected impacts or restrictions to existing human

uses of the Tennessee River as a result of this rule, no entitlements,

grants, user fees, loan programs or the rights and obligations of their

recipients are expected to occur.

This rule will not raise novel legal or policy issues. The Service

has previously promulgated more than a dozen section 10 (j) rules for

experimental populations of other listed threatened and endangered

species in various localities since 1984. The rules are designed to

reduce the regulatory burden that would otherwise exist when

reintroducing listed species to the wild.

We have determined and certified, pursuant to the Unfunded Mandates

Reform Act, 2 U.S.C. 1501 et seq., that this rulemaking will not impose

a cost of $100 million or more in any given year on local or State

governments or private entities. Further, this rule will not

``significantly or uniquely'' affect small governments. A Small

Government Agency Plan is not required. The ADGF, which manages the

aquatic mollusks in the Tennessee River below Wilson Dam, requested the

Service consider this reintroduction under a NEP designation. However,

they will not be required by the Act to specifically manage for any

reintroduced species.

This proposed rule has been reviewed under Executive Order 12630,

the Attorney General Guidelines, Departmental Guidelines, and the

Attorney General Supplemental Guidelines to determine the taking

implications of this proposed rule if it were promulgated as currently

drafted. The implementation of this proposed rule will not result in

any ``taking'' under the 5th Amendment. In accordance with Executive

Order 12630, the rule does not have significant takings implications. A

takings implication assessment is not required.

Designating reintroduced populations of federally listed species as

NEPs significantly reduces the Act's regulatory requirements regarding

the reintroduced listed species within the NEP. Under NEP designations,

the Act requires a Federal agency to confer with the Service if the

agency determines that its action within the NEP is likely to

jeopardize the continued existence of the reintroduced species.

However, even if an agency action would totally eliminate a

reintroduced species from a NEP and jeopardize the species continued

existence, the Act does not compel a Federal agency to stop a project,

deny issuing a permit, or cease any activity. Additionally, regulatory

relief can be provided here regarding take of reintroduced species

within NEP areas, and the special rule has been proposed stipulating

that there would be no violation of the Act for unavoidable and

unintentional take (including killing or injuring) of these

reintroduced mollusks, when such take

[[Page 28787]]

is non-negligent and incidental to a legal activity (e.g., boating,

commercial navigation, commercial musseling, fishing) and the activity

is in accordance with State laws or regulations. Because of the

substantial regulatory relief provided by NEP designations, the Service

does not believe the reintroduction of these mollusks would conflict

with existing or proposed human activities or hinder public utilization

of the Tennessee River system.

This proposed rule has been reviewed under Executive Order 12612 to

determine Federalism considerations in policy formulation and

implementation. This proposed rule does not require a Federalism

assessment under Executive Order 12612 since it will not have any

significant Federalism effects as described in the order. Nevertheless,

we have endeavored to cooperate with the Alabama Division of Game and

Fish in the preparation of this proposed rule.

The Department of the Interior has determined that this proposed

regulation meets the applicable standards provided in sections (3)(a)

and (3)(b)(2) of Executive Order 12988.

Literature Cited

Bogan, A. E., and P. W. Parmalee. 1983. Tennessee's Rare Wildlife,

Volume II: The Mollusks. 123 pp.

Gooch, C. H., W. J. Pardue, and D. C. Wade. 1979. Recent mollusk

investigations on the Tennessee River, 1978. Tennessee Valley

Authority, Water Quality and Ecology Branch. 126 pp.

Goodrich, C. 1931. The pleurocerid genus Eurycaelon. Occasional

Papers of the Museum of Zoology 223:1-11.

Gordon, M. E. 1991. Species accounts for Cumberland elktoe

(Alasmidonta atropurpurea), Cumberlandian combshell (Epioblasma

brevidens), oyster mussel (Epioblasma capsaeformis), rough

rabbitsfoot (Quadrula cylindrica strigillata), and purple bean

(Villosa perpurpurea). Unpublished reports to The Nature

Conservancy. 75 pp.

Isom, B. G. 1969. The mussel resources of the Tennessee River.

Malacologia 7(2-3): 397-425.

Neves, R. J. 1991. Mollusks. IN: Virginia's Endangered Species,

Proceedings of a Symposium. Coordinated by Karen Terwilliger.

McDonald & Woodward Publishing Co., Blacksburg, VA. 672 pp.

Ortmann, A. E. 1918. The nayades (freshwater mussels) of the upper

Tennessee drainage with notes on synonymy and distribution.

Proceedings of the American Philosophical Society 57:521-626.

------. 1924. Discussions and Correspondence--Mussel Shoals. Science

60(1564):565-566.

------. 1925. The naiad fauna of the Tennessee River system below

Walden Gorge. The American Midland Naturalist 9(8):321-372.

Scruggs, G. D. 1960. Status of freshwater mussel stocks in the

Tennessee River. U.S. Fish and Wildlife Service, Special Report,

Fisheries, 370:1-40.

Stansbery, D. H. 1964. The Mussel (Muscle) Shoals of the Tennessee

River revisited. Annual Report for 1964 of the American

Malacological Union: 25-28.

------. 1971. Rare and endangered mollusks in Eastern United States.

IN: S.E. Jorgenson and R.E. Sharp (Ed.). Proceedings of a Symposium

on Rare and Endangered Mollusks (naiades), U.S. Bureau of Sport

Fisheries and Wildlife, U.S. Fish and Wildlife Service, Department

of the Interior, Twin Cities, MN. 79 pp.

------. 1976. Naiad mollusks. IN: Endangered and Threatened Plants

and Animals of Alabama. Bulletin, Alabama Museum of Natural History,

No. 2:42-52.

Tennessee Valley Authority. 1993. Tennessee Valley reservoir and

stream quality--1993. Summary of vital signs and use suitability

monitoring. Vol. 1. 200 pp.

U.S. Fish and Wildlife Service. 1983a. Cumberland Monkeyface

Pearlymussel Recovery Plan. Atlanta, GA. 59 pp.

------. 1983b. Dromedary Pearlymussel Recovery Plan. Atlanta, GA. 58

pp.

------. 1984a. Birdwing Pearlymussel Recovery Plan. Atlanta, GA. 56

pp.

------. 1984b. Cumberland Bean Pearlymussel Recovery Plan. Atlanta,

GA. 58 pp.

------. 1984c. Fine-rayed Pigtoe Recovery Plan. Atlanta, GA. 67 pp.

------. 1984d. Shiny Pigtoe Recovery Plan. Atlanta, GA. 67 pp.

------. 1985a. Alabama Lampmussel Recovery Plan. Atlanta, GA. 41 pp.

------. 1985b. Tubercled-blossom Pearlymussel, Turgid-blossom

Pearlymussel, and Yellow-blossom Pearlymussel Recovery Plan.

Atlanta, GA. 42 pp.

------. 1991. Cracking Pearlymussel Recovery Plan. Atlanta, GA. 25

pp.

------. 1992. Purple Cat's Paw Pearlymussel Recovery Plan. Atlanta,

GA. 26 pp.

------. 1993a. Clubshell and Northern Riffleshell Recovery Plan.

Hadley, MA. 55 pp.

------. 1997. Recovery Plan for Anthony's Riversnail. Atlanta, GA.

21 pp.

------. 1997. Winged Mapleleaf Mussel (Quadrula fragosa) Recovery

Plan. Ft. Snelling, MN. 69 pp.

van der Schalie, H. 1939. Additional notes on the naiades

(freshwater mussels) of the lower Tennessee River. The American

Midland Naturalist 22:452-457.

Author

The principal author of this proposed rule is Richard G. Biggins

(see Addresses section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

Accordingly, we hereby propose to amend part 17, subchapter B of

chapter I, title 50 of the Code of Federal Regulations as set forth

below:

PART 17--[AMENDED]

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. In Sec. 17.11(h). revise the entries in the table under CLAMS

for ``Clubshell'': ``Combshell, Cumberlandian''; ``Lampmussel,

Alabama''; ``Mussel, Oyster''; ``Mussel, winged mapleleaf'';

``Pearlymussel, birdwing''; ``Pearlymussel, cracking''; ``Pearlymussel,

Cumberland bean''; ``Pearlymussel, Cumberland monkeyface'';

``Pearlymussel, dromedary''; ``Pearlymussel, purple cat's paw'';

``Pearlymussel, tubercled-blossom''; ``Pearlymussel, turgid-blossom'';

and ``Pearlymussel, yellow-blossom''; ``Pigtoe, fine-rayed''; ``Pigtoe,

shiny''; and the table entry under SNAILS for ``Riversnail, Anthony's''

to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

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

Species Experimental

------------------------------------------------------ population or

vertebrate Critical Special

Historic range population where Status When listed habitat rules

Common name Scientific name endangered or

threatened

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

* * * * * * *

Clams

[[Page 28788]]

* * * * * * *

Clubshell....................... Pleurobema clava... U.S.A. (AL, IL, NA................ E 488 NA NA

IN, KY, MI, OH,

PA, TN, WV).

Do.......................... ...... do.......... ...... do......... U.S.A. (AL--The XN 488, ____ NA 17.85(a)

free-flowing

reach of the

Tennessee R. from

the base of

Wilson Dam

downstream to the

backwaters of

Pickwick

Reservoir [about

12 RM (19 km)]

and 5 RM [8 km]

upstream of all

tributaries to

this reach in

Colbert and

Lauderdale Cos.,

see 17.85(a)).

* * * * * * *

Combshell, Cumberlandian........ Epioblasma U.S.A. (AL, KY, NA................ E 602 NA NA

brevidens. TN, VA).

Do.......................... ...... do.......... ...... do......... U.S.A. (AL-- XN 602, ____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

Lampmussel, Alabama............. Lampsilis virescens U.S.A. (AL, TN)... NA................ E 15 NA NA

Do.......................... ...... do.......... ...... do......... U.S.A. (AL-- XN 15, ____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

Mussel, oyster.................. Epioblasma U.S.A. (AL, KY, NA................ E 602 NA NA

capsaeformis. TN, VA).

Do.......................... ...... do.......... ...... do......... U.S.A. (AL-- XN 602, ____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

Mussel, winged mapleleaf........ Quadrula fragosa... U.S.A. (AL, IA, NA................ E 426 NA NA

IL, IN, KY, MN,

MO, NE, OH, OK,

TN, WV).

Do.......................... ......do........... ......do.......... U.S.A. (AL-- XN 426, ____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

Pearlymussel, birdwing.......... Conradilla caelata. U.S.A. (AL, TN, NA................ E 15 NA NA

VA).

Do.......................... ......do........... ......do.......... U.S.A. (AL-- XN 15, 9/16____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

Pearlymussel, cracking.......... Hemistena (= U.S.A. (AL, IL, NA................ E 366 NA NA

Lastena) lata. IN, KY, OH, TN,

VA).

Do.......................... ......do........... ......do.......... U.S.A. (AL-- XN 366, 9/16____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

[[Page 28789]]

* * * * * * *

Pearlymussel, Cumberland bean... Villosa (= U.S.A. (AL, KY, NA................ E 15 NA NA

Micromya) trabalis. TN, VA).

Do.......................... ......do........... ......do.......... U.S.A. (AL-- XN 15, 9/16____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see

17.85(a))..

Pearlymussel, Cumberland Quadrula intermedia U.S.A. (AL, TN, NA................ E 15 NA NA

monkeyface. VA).

Do.......................... ......do........... ......do.......... U.S.A. (AL-- XN 15, 9/16____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

Pearlymussel, dromedary......... Dromus Dromas...... U.S.A. (AL, KY, NA................ E 15 NA NA

TN, VA).

Do.......................... ......do........... ......do.......... U.S.A. (AL-- XN 1 5, ____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

Pearlymussel, purple cat's paw.. Epioblasma U.S.A. (AL, IL, NA................ E 394 NA NA

obliquata IN, KY, OH, TN).

obliquata.

Do.......................... ......do........... ......do.......... U.S.A. (AL-- XN 394, ____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

Pearlymussel, tubercled-blossom. Epioblasma U.S.A. (AL, IL, NA................ E 15 NA NA

(=Dysnomia) IN, KY, TN, WV).

torulosa torulosa.

Do.......................... ......do........... ......do.......... U.S.A. (AL-- XN 15, ____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

Pearlymussel, turgid-blossom.... Epioblasma U.S.A. (AL, TN)... NA................ E 15 NA NA

(=Dysnomia)

turgidula.

Do.......................... ......do........... ......do.......... U.S.A. (AL-- XN 15, ____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

Pearlymussel, yellow-blossom.... Epioblasma U.S.A. (AL, TN)... NA................ E 15 NA NA

florentina

florentina .

Do.......................... ......do........... ......do.......... U.S.A. (AL-- XN 15, ____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

Pigtoe, fine-rayed.............. Fusconaia cuneolus. U.S.A. (AL, TN, NA................ E 15 NA NA

VA).

Do.......................... ......do........... ......Do.......... U.S.A. (AL-- XN 15, ____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

Pigtoe, shiny................... Fusconaia cor (= U.S.A. (AL, TN, NA................ E 15 NA NA

edgariana). VA).

[[Page 28790]]

Do.......................... ......do........... ......do.......... U.S.A. (AL-- XN 15, ____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

Snails

* * * * * * *

Riversnail, Anthony's........... Athearnia anthonyi. U.S.A. (AL, GA, NA................ E 538 NA NA

TN).

Do.......................... ......do........... ......do.......... U.S.A. (AL-- XN 538, ____ NA 17.85(a)

deregulated zone

in the Tennessee

R., see 17.85(a)).

* * * * * * *

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

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

Sec. 17.85 Special rules--invertebrates.

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

(i)

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

Common name Scientific name

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

Alabama lampmussel........... Lampsilis virescens.

Anthony's riversnail......... Athearnia anthonyi.

birdwing pearlymussel........ Conradilla caelata.

clubshell.................... Pleurobema clava.

cracking pearlymussel........ Hemistena lata.

Cumberland bean pearlymussel. Villosa trabalis.

Cumberlandian combshell...... Epioblasma brevidens.

Cumberland monkeyface Quadrula intermedia.

pearlymussel.

dromedary pearlymussel....... Dromus dromas.

fine-rayed pigtoe............ Fusconaia cuneolus.

oyster mussel................ Epioblasma capsaeformis.

purple cat's paw pearlymussel Epioblasma o. obliquata.

shiny pigtoe................. Fusconaia cor.

tubercled-blossom Epioblasma torulosa torulosa.

pearlymussel.

turgid-blossom pearlymussel.. Epioblasma turgidula.

winged mapleleaf mussel...... Quadrula fragosa.

yellow-blossom pearlymussel.. Epioblasma f. florentina.

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

(ii) [Reserved]

(2) Where does this special rule apply?

(i) The designated recovery areas classified as NEPs for the

aforementioned 17 mollusks in paragraph (a)(1)(i) of this section are

within the species' historic ranges and are defined as follows:

The free-flowing reach of the Tennessee River from the base of

Wilson Dam downstream to the backwaters of Pickwick Reservoir (RM

258.0 [412.8 km] to RM 246.0 [393.6 km]about 12 RM [19 km]) and 5 RM

(8 km) upstream of all tributaries to this reach in Colbert and

Lauderdale Counties, Alabama.

(ii) None of the aforementioned species is known from any of the

tributaries to the free-flowing reach of the Tennessee River below

Wilson Dam, Colbert and Lauderdale Counties, Alabama. In the future, if

any of the aforementioned 17 mollusks are found upstream beyond the

lower 5 RM (8 km) of these tributaries, we will presume the animals to

have come from the reintroduced NEP, and the boundaries of the NEP will

be enlarged to include the entire range of the expanded population.

(3) What is the legal status of the species described in the rule?

(i) The species identified for reintroduction in paragraph (a)(1)

of this section are listed as ``endangered'' and protected under 50 CFR

17.11 (h). The Alabama lampmussel, birdwing pearlymussel, clubshell,

cracking pearlymussel, Cumberland bean pearlymussel, Cumberlandian

combshell, Cumberland monkeyface pearlymussel, dromedary pearlymussel,

fine-rayed pigtoe, oyster mussel, purple cat's paw pearlymussel, shiny

pigtoe, tubercled-blossom pearlymussel, turgid-blossom pearlymussel,

winged mapleleaf mussel, yellow-blossom pearlymussel, and Anthony's

riversnail, identified in paragraph (a)(2) of this section, are

nonessential experimental populations. These NEPs will be managed in

accordance with these provisions.

(ii) We find, under 50 CFR 17.81 (b), that the reintroduction of an

experimental population of the aforementioned 17 mollusks into their

historic range will further their conservation. We also find, under 50

CFR 17.81(c)(2) that the experimental population is not essential to

the continued existence of the species in the wild.

(4) What activities are prohibited?

[[Page 28791]]

(i) You may not take any of the aforementioned 17 mollusks in the

wild within these species' NEP areas except in accordance with the

applicable laws or regulations of the State of Alabama and as provided

by these rules. We may refer unauthorized take of these species to the

appropriate authorities for prosecution.

(ii) This provision does not exempt Federal agencies from complying

with section 7(a)(4) of the Act, which requires them to confer with the

Service if they propose an action that is likely to jeopardize the

continued existence of one or more of these species.

(iii) You may not possess, sell, deliver, carry, transport, ship,

import, or export by any means whatsoever any of the aforementioned 17

mollusks, or parts thereof, from these NEPs that are taken or possessed

in violation of these regulations or in violation of the applicable

laws or regulations of the State of Alabama.

(iv) You may not attempt to commit, solicit another to commit, or

cause to be committed any offense defined in this paragraph (a).

(5) What activities are allowed?

(i) Throughout the entire NEP areas for the aforementioned 17

mollusks, you will not be in violation of the Act for unavoidable and

unintentional take (including killing or injuring) of these species

when such take is incidental to a legal activity, such as fishing,

boating, commercial navigation, trapping, wading, mussel harvesting, or

other activities, and the activity is in accordance with the laws or

regulations of the State of Alabama.

(ii) Throughout the entire NEP areas for the aforementioned 17

mollusks, no Federal agency or its contractors will be in violation of

the Act for take of these species resulting from any authorized agency

action.

(6) What are we doing for these species?

(i) We will continuously evaluate the progress of the

aforementioned 17 mollusk reintroductions. We will prepare periodic

progress reports and fully evaluate these reintroduction efforts after

5 and 10 years to determine whether to continue or terminate the

reintroduction efforts.

(ii) We will work cooperatively with private landowners and will

not impose any land-use restrictions on private lands for the recovery

of these species without prior concurrence from the landowners.

(iii) We do not intend to change the NEP designations to

``essential experimental,'' ``threatened,'' or ``endangered'' without

the full cooperation of the State of Alabama and the affected parties

within the NEP areas. Additionally, we will not designate critical

habitat for these NEPs. We cannot designate critical habitat under the

NEP classification, as provided by 16 U.S.C. 1539(j)(2)(C)(ii).

(b) [Reserved]

Dated: April 30, 1999.

Donald J. Barry,

Assistant Secretary for Fish and Wildlife and Parks.

[FR Doc. 99-13490 Filed 5-26-99; 8:45 am]

BILLING CODE 4310-55-P