Endangered and Threatened Wildlife and Plants; Endangered Species Status for Barrens Topminnow, 56131-56136 [2019-22857]

Download as PDF Federal Register / Vol. 84, No. 203 / Monday, October 21, 2019 / Rules and Regulations of the Act above and beyond existing information collection clearances from OMB. National Environmental Policy Act Federal agencies are required to adopt implementing procedures for the National Environmental Policy Act (NEPA) that establish specific criteria for, and identification of, three classes of actions: (1) Those that normally require preparation of an Environmental Impact Statement, (2) those that normally require preparation of an Environmental Assessment, and (3) those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). This rule qualifies for categorical exclusions under 23 CFR 771.118(c)(4) (planning and administrative activities that do not involve or lead directly to construction). FTA has evaluated whether the rule will involve unusual or extraordinary circumstances and has determined that it will not. Executive Order 12630 (Taking of Private Property) FTA has analyzed this rule under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. FTA does not believe this rule effects a taking of private property or otherwise has taking implications under Executive Order 12630. Executive Order 12988 (Civil Justice Reform) This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. khammond on DSKJM1Z7X2PROD with RULES Executive Order 13045 (Protection of Children) FTA has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. FTA certifies that this action will not cause an environmental risk to health or safety that might disproportionately affect children. 16:21 Oct 18, 2019 Jkt 250001 FTA has analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. FTA has determined that this action is not a significant energy action under that order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required. Executive Order 12898 (Environmental Justice) Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations) and DOT Order 5610.2(a) (77 FR 27534, May 10, 2012) (available online at https:// www.govinfo.gov/content/pkg/FR-201205-10/pdf/2012-11309.pdf) require DOT agencies to achieve Environmental Justice (EJ) as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority and low-income populations. All DOT agencies must address compliance with Executive Order 12898 and the DOT Order in all rulemaking activities. On August 15, 2012, FTA’s Circular 4703.1 became effective, which contains guidance for recipients of FTA financial assistance to incorporate EJ principles into plans, projects, and activities (available online at https://www.fta.dot.gov/documents/ FTA_EJ_Circular_7.14-12_FINAL.pdf). FTA has evaluated this action under the Executive Order, the DOT Order, and the FTA Circular. The rule rescinds the implementing regulations of a program repealed by statute, and FTA has determined that this action will not cause disproportionately high and adverse human health and environmental effects on minority or low-income populations. List of Subjects in 49 CFR Part 624 Executive Order 13175 (Tribal Consultation) FTA has analyzed this rule under Executive Order 13175, dated November 6, 2000, and believes that it will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal laws. Therefore, a tribal summary impact statement is not required. VerDate Sep<11>2014 Executive Order 13211 (Energy Effects) Grant programs—transportation, Mass transportation. Issued in Washington, DC, under authority delegated in 49 CFR 1.90. K. Jane Williams, Acting Administrator. PART 624—[REMOVED AND RESERVED] In consideration of the foregoing, and under the authority of Public Law 112– ■ PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 56131 141, 49 CFR chapter VI is amended by removing part 624. [FR Doc. 2019–22859 Filed 10–18–19; 8:45 am] BILLING CODE P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R4–ES–2017–0094; 4500030113] RIN 1018–BC52 Endangered and Threatened Wildlife and Plants; Endangered Species Status for Barrens Topminnow Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973, as amended (Act), for the Barrens topminnow (Fundulus julisia), a freshwater fish species from Cannon, Coffee, Dekalb, and Warren Counties, Tennessee. This rule adds this species to the Federal List of Endangered and Threatened Wildlife. DATES: This rule is effective November 20, 2019. ADDRESSES: This final rule is available on the internet at https:// www.regulations.gov under Docket No. FWS–R4–ES–2017–0094 and at https:// www.fws.gov/southeast/. Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at https:// www.regulations.gov under Docket No. FWS–R4–ES–2017–0094. Comments, materials, and documentation that we considered in this rulemaking will be available by appointment, during normal business hours at: U.S. Fish and Wildlife Service, Tennessee Ecological Services Field Office; 446 Neal Street, Cookeville, TN; telephone 931–877– 8339. SUMMARY: Lee Andrews, Field Supervisor, U.S. Fish and Wildlife Service, Tennessee Ecological Services Field Office, 446 Neal Street, Cookeville, TN; telephone 931–525–4973. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800–877–8339. SUPPLEMENTARY INFORMATION: FOR FURTHER INFORMATION CONTACT: E:\FR\FM\21OCR1.SGM 21OCR1 56132 Federal Register / Vol. 84, No. 203 / Monday, October 21, 2019 / Rules and Regulations Supporting Documents We prepared a species status assessment (SSA) report for the Barrens topminnow. Written in consultation with species experts, the SSA report represents the best scientific and commercial data available concerning the status of the Barrens topminnow, including the impacts of past, present and future factors (both negative and beneficial) affecting the species. Scientific expertise informing the SSA report came primarily from the Barrens Topminnow Working Group, which is a team of biologists from the Service, Tennessee Wildlife Resources Agency, Tennessee universities, and nongovernment organizations that have been working on Barrens topminnow conservation since 2001. Scientists on the Barrens Topminnow Working Group provided expertise in fish biology, habitat management, and stressors (factors negatively affecting the species). One biologist outside the Barrens Topminnow Working Group conducted independent peer review of the SSA report. The SSA report; the January 4, 2018, proposed rule (83 FR 490); this final rule; and other materials relating to this rulemaking can be found on the Service’s Southeast Region website at https://www.fws.gov/southeast/ and at https://www.regulations.gov under Docket No. FWS–R4–ES–2017–0094. Previous Federal Actions Please refer to the proposed listing rule for the Barrens topminnow (83 FR 490; January 4, 2018) for a detailed description of previous Federal actions concerning this species. khammond on DSKJM1Z7X2PROD with RULES Background The Barrens topminnow is a small fish with an average lifespan of 2 years that is endemic to springs and gently flowing portions of spring-fed streams in middle Tennessee. This species relies on aquatic vegetation for spawning substrate and cover. Owing primarily to invasive western mosquitofish (Gambusia affinis) that prey upon and harass Barrens topminnows, the species’ range has been curtailed and its status rangewide is low, based upon the best available scientific and commercial data available. Please refer to the January 4, 2018, proposed listing rule for the Barrens topminnow (83 FR 490) and the SSA report for a full summary of species information. Both are available on the Service’s Southeast Region website at https://www.fws.gov/southeast/ and at https://www.regulations.gov under Docket No. FWS–R4–ES–2017–0094. VerDate Sep<11>2014 16:21 Oct 18, 2019 Jkt 250001 Summary of Comments and Recommendations In the January 4, 2018, proposed rule (83 FR 490), we requested that all interested parties submit written comments on the proposal by March 5, 2018. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing. Peer Reviewer Comments In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review actions under the Act (16 U.S.C. 1531 et seq.), we solicited expert opinion from six knowledgeable individuals with scientific expertise that included familiarity with the Barrens topminnow and its habitat, biological needs, and threats. We received a response from one peer reviewer. We updated the SSA report based on the peer reviewer’s comments. The changes consisted of clarifications and corrections to the SSA report, including typographical edits, incorporation of omitted references, and a clarification regarding the definition of a genetic term. The peer reviewer’s comments did not change our determination that the Barrens topminnow meets the definition of an endangered species under the Act. Public Comments We received 24 public comments on the proposed rule. Eleven of the comments were supportive of listing the Barrens topminnow as endangered but did not provide any new information on the species’ status. None of the remaining 13 comments provided substantive comments concerning the proposed listing of the Barrens topminnow. Ten of those did not address or provide any information concerning the Barrens topminnow, and three focused on the need for transparency in regulations implemented under the Act. Regarding transparency for our listing decision for the Barrens topminnow, we note that we provide our SSA report, as well as several other reports and surveys that helped inform this listing decision, to the public on https:// www.regulations.gov under Docket No. FWS–R4–ES–2017–0094. Thus, none of the public comments changed our determination that the Barrens topminnow meets the definition of an endangered species under the Act. PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 Summary of Changes From the Proposed Rule As discussed above, we made no changes to this final rule after consideration of the comments we received. Summary of Biological Status and Threats Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations in title 50 of the Code of Federal Regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Our assessment evaluates the biological status of the species and possible threats to its continued existence based upon the best available scientific and commercial data. Please refer to the SSA report for a more detailed discussion of the factors affecting the Barrens topminnow. Current Condition of the Barrens Topminnow To evaluate the current and future viability of the Barrens topminnow, we assessed a range of conditions to consider the species’ resiliency, representation, and redundancy (the ‘‘3 Rs’’ described in detail in the SSA report). The historical range of the Barrens topminnow included springs and spring runs (first and second order streams with a spring source) on the Barrens Plateau, which is part of the Eastern Highland Rim physiographic province in middle Tennessee. Historical species records are from the Duck River, Elk River, and Caney Fork River drainages. The Duck River and Elk River drain to the Tennessee River, and the Caney Fork River drains to the Cumberland River. Captively held Elk River and wild Caney Fork River stock exist today and are considered ‘‘evolutionary significant units’’ (ESUs, historically isolated groups of populations that are on independent evolutionary trajectories). Historical Duck River stock became extinct in the 1960s, before genetic material could be examined to assess whether the Duck River stock was a unique ESU or belonged to one of the two extant ESUs. Once known to occupy 18 sites (and likely more sites that were not sampled E:\FR\FM\21OCR1.SGM 21OCR1 Federal Register / Vol. 84, No. 203 / Monday, October 21, 2019 / Rules and Regulations khammond on DSKJM1Z7X2PROD with RULES prior to extirpation) within the three drainages, the Barrens topminnow currently occurs in the wild at 5 sites. The species occurs in the Duck River drainage in Short Spring and Marcum Spring, and in the Caney Fork drainage in Benedict Spring, McMahan Creek, and Greenbrook Pond. The Benedict Spring and McMahan Creek occurrences consist of native stock, while the remaining three, including the two Duck River occurrences, are populated with individuals introduced from Caney Fork drainage sites. An ark population of Barrens topminnows from Pond Spring in the Elk River drainage is held in captivity at three facilities, with the intention to reintroduce individuals from that population to the drainage where habitat conditions are, or can be made, suitable. Of the five sites currently occupied by the species, the Greenbrook Pond and Marcum Spring populations are estimated to have medium resiliency, and the other three populations low resiliency. Rangewide, the Barrens topminnow has low representation, owing to the species’ reduced genetic diversity, loss of at least one ESU from the wild, and restriction to a single ecoregion and specific habitat type. Redundancy is also low, as the species is extant at only 5 of 18 known historical sites. Based on the 3 Rs, the species’ overall current condition is low. Threats The greatest threat to Barrens topminnow is predation from the western mosquitofish (Factor C), an invasive species native to portions of Tennessee west of the Barrens Plateau that preys upon young topminnows and harasses adults. Extirpation of Barrens topminnows has occurred consistently within 3 to 5 years of western mosquitofish invasion of a site, and the five sites where Barrens topminnows remain extant are the only sites not occupied by western mosquitofish. Predation upon Barrens topminnows by western mosquitofish (Factor C) is the primary driver of Barrens topminnow range curtailment and habitat modification (Factor A), as well as adverse demographic changes (Factor E). The presence of predatory western mosquitofish in most spring and stream systems of the Barrens Plateau has rendered otherwise suitable habitat for the Barrens topminnow uninhabitable. In addition to modification of habitat by a biological feature (invasive western mosquitofish), alteration of physical habitat features has occurred due to conversion of surrounding upland habitat to pasture, with concomitant VerDate Sep<11>2014 16:21 Oct 18, 2019 Jkt 250001 removal of riparian vegetation and livestock accessing streams. Livestock access increases bank erosion, sedimentation, and nutrient loading in streams. Removal of riparian vegetation can also increase sedimentation and may raise water temperatures above levels suitable for Barrens topminnows. While such physical habitat alteration (Factor A) has occurred and has been a factor in curtailing some of the species’ range, its impact on the topminnow is much less substantial than predation by western mosquitofish. Adverse demographic changes (Factor E) also are largely driven by invasive western mosquitofish (Factor C). The expansion of western mosquitofish into topminnow habitat has eliminated connectivity between sites that would allow gene flow and maintenance of genetic diversity. Each occupied site is vulnerable to extirpation due to prolonged drought or a flood that enables western mosquitofish invasion. Topminnows cannot move from these sites during droughts or floods because western mosquitofish are downstream. Further, the erosion of genetic variability due to site isolation reduces the capacity of the species to withstand stochastic events. Climate change (Factor E) is a threat to the Barrens topminnow. Drought poses a threat to Barrens topminnows as evidenced by the Benedict Spring site drying up three times since 2006, although each time topminnows were rescued from the drying spring and held in captivity until they could be returned to the spring after the drought subsided. Climate models at the scale of the Barrens Plateau are lacking, but in the broader southeastern United States, variability in weather is expected to increase over the next century, resulting in more extreme dry and wet years. We did not find that the Barrens topminnow is impacted by overutilization (Factor B). Regarding the adequacy of existing regulatory mechanisms (Factor D), such as regulations implemented under the Clean Water Act to protect water quality and instream habitat, we found that they do not address, nor do they contribute to, the threat of invasive mosquitofish, which is the primary driver of the Barrens topminnow’s status. Determination We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Barrens topminnow. The Barrens topminnow is extirpated from 13 of 18 historically occupied sites, which is equivalent to a PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 56133 72 percent loss in the species’ range. Native Duck River populations have been lost, and the ESU from the Elk River drainage currently persists only in captivity. Due primarily to predation by the western mosquitofish, but secondarily to habitat alternation exacerbated by climate change, the overall condition of the species is low, based on population resiliency and rangewide representation and redundancy. The Act defines an endangered species as any species that is ‘‘in danger of extinction throughout all or a significant portion of its range’’ and a threatened species as any species that ‘‘is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.’’ As discussed above, the resiliency, representation, and redundancy of the species has been severely compromised by the operation of threats in the past, primarily due to predation by introduced and expanding populations of nonnative western mosquitofish. In addition, all of the remaining populations of Barrens topminnow are at imminent risk of further expansion of western mosquitofish, as well as drought events, with no reasonable prospect of natural reestablishment once a population is extirpated. Therefore, we conclude that the species is currently at risk of extinction throughout its range, thus meeting the definition of an endangered species. For the same reasons, we find that a threatened species status is not appropriate for the Barrens topminnow. Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the Barrens topminnow is in danger of extinction throughout its range, we find it unnecessary to proceed to an evaluation of potentially significant portions of the range. Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species’ degree of imperilment and better promotes the purposes of the statute. Under this reading, we should first consider whether listing is appropriate based on a rangewide analysis and proceed to conduct a ‘‘significant portion of its range’’ analysis if, and only if, a species does not qualify for listing as either endangered or threatened according to the ‘‘all’’ language. We note that the court in Desert Survivors v. Department E:\FR\FM\21OCR1.SGM 21OCR1 56134 Federal Register / Vol. 84, No. 203 / Monday, October 21, 2019 / Rules and Regulations of the Interior, No. 16–cv–01165–JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), did not address this issue, and our conclusion is therefore consistent with the opinion in that case. Therefore, on the basis of the best available scientific and commercial information, we list the Barrens topminnow as an endangered species in accordance with sections 3(6) and 4(a)(1) of the Act. khammond on DSKJM1Z7X2PROD with RULES Available Conservation Measures Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and requires that recovery actions be carried out for all listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below. Recovery Actions The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act requires the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species’ decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, selfsustaining, and functioning components of their ecosystems. Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered VerDate Sep<11>2014 16:21 Oct 18, 2019 Jkt 250001 or may be downlisted or delisted, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website (https://www.fws.gov/ endangered) or from our Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. Following publication of this final listing rule, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Tennessee will be eligible for Federal funds to implement management actions that promote the protection or recovery of the Barrens topminnow. Information on our grant programs that are available to aid species recovery can be found at: https://www.fws.gov/grants. Please let us know if you are interested in participating in recovery efforts for the Barrens topminnow. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT). Critical Habitat Section 4(a)(3) of the Act and implementing regulations (50 CFR 424.12) require that we designate critical habitat at the time a species is determined to be an endangered or threatened species, to the maximum PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 extent prudent and determinable. In the proposed listing rule (83 FR 490; January 4, 2018), we determined that designation of critical habitat was prudent but not determinable because specific information needed to analyze the impacts of designation was lacking. We are still in the process of assessing this information. We plan to publish a proposed rule to designate critical habitat for the Barrens topminnow in the near future. Regulatory Provisions Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of any endangered or threatened species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service. Federal agency actions within the species’ habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Service; technical assistance and projects funded through the U.S. Department of Agriculture Natural Resources Conservation Service; issuance of permits by the Tennessee Valley Authority for right-of-way stream crossings; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration. The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, also codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the E:\FR\FM\21OCR1.SGM 21OCR1 56135 Federal Register / Vol. 84, No. 203 / Monday, October 21, 2019 / Rules and Regulations course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies. We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits for endangered wildlife are codified at 50 CFR 17.22. A permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act. It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a final listing on proposed and ongoing activities within the range of a listed species. Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive: (1) Normal agricultural practices, including herbicide and pesticide use, which are carried out in accordance with any existing regulations, permit and label requirements, and best management practices; and (2) Normal residential landscaping activities. Based on the best available information, the following activities may potentially result in a violation of section 9 the Act; this list is not comprehensive: khammond on DSKJM1Z7X2PROD with RULES Common name * FISHES * Topminnow, Barrens ....... * VerDate Sep<11>2014 (1) Collection or handling of the Barrens topminnow; (2) Introduction of nonnative species that compete with or prey upon the Barrens topminnow, including western mosquitofish and other species in the mosquitofish genus Gambusia; (3) Removal or destruction of native aquatic vegetation in any body of water in which the Barrens topminnow is known to occur; and (4) Discharge of chemicals or fill material into any waters in which the Barrens topminnow is known to occur. Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). A complete list of references cited in the SSA report that informed this rulemaking is available on the internet at https://www.regulations.gov under Docket No. FWS–R4–ES–2017–0094 and upon request from the Tennessee Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Required Determinations Authors National Environmental Policy Act (42 U.S.C. 4321 et seq.) We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act, need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). The primary authors of this final rule are the staff members of the Service’s Tennessee Ecological Services Field Office. * Where listed * * 16:21 Oct 18, 2019 Regulation Promulgation PO 00000 * Frm 00039 Fmt 4700 Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise noted. 2. Amend § 17.11(h) by adding an entry for ‘‘Topminnow, Barrens’’ to the List of Endangered and Threatened Wildlife in alphabetical order under FISHES to read as follows: ■ § 17.11 Endangered and threatened wildlife. * * * (h) * * * * E * * * * * 83 FR [insert Federal Register page where the document begins], 10/21/2019. * Sfmt 4700 * Listing citations and applicable rules * * Wherever found .............. * Jkt 250001 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Status * * * Fundulus julisia .............. References Cited List of Subjects in 50 CFR Part 17 Government-to-Government Relationship With Tribes In accordance with the President’s memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior’s manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge Scientific name our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes. There are no tribal lands affected by this listing determination. E:\FR\FM\21OCR1.SGM * 21OCR1 * 56136 Federal Register / Vol. 84, No. 203 / Monday, October 21, 2019 / Rules and Regulations Dated: August 20, 2019. Margaret E. Everson, Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director, U.S. Fish and Wildlife Service. [FR Doc. 2019–22857 Filed 10–18–19; 8:45 am] BILLING CODE 4333–15–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 191011–0060] RIN 0648–BJ29 Background Atlantic Highly Migratory Species; Removal of Billfish Certificate of Eligibility Requirements The regulations at 50 CFR part 635 are promulgated under ATCA and the Magnuson-Stevens Act for the conservation and management of Atlantic HMS, including species of tunas, billfish, sharks, and swordfish. The sale of Atlantic billfish has been prohibited by regulation since implementation of the 1988 Fishery Management Plan (FMP) for the Atlantic Billfishes (53 FR 21501; June 8, 1988). The Billfish Conservation Act of 2012 prohibited any person from possessing or offering billfish or billfish products for sale but included a limited exception for Pacific billfish, with the result that Pacific billfish product could continue to be sold throughout the United States. Thus, HMS regulations continued to require that a Billfish Certificate of Eligibility accompany any billfish product sold to ensure that the product did not come from the Atlantic Ocean. In 2018, amendments to the Billfish Conservation Act of 2012, clarified that billfish are only exempted from the sales prohibition when they are retained in Hawaii or the Pacific Insular Areas. Accordingly, such billfish may only be sold in the same location where landed or when legally transported to the other exempted location (i.e., from Hawaii to the Pacific Insular Areas or vice versa). The new prohibition became effective when the legislation was signed into law on August 2, 2018. Thus, the Billfish Certificate of Eligibility requirement in 50 CFR part 635 is no longer necessary, and this final rule removes the requirement. National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: This final rule removes obsolete language in the Atlantic highly migratory species (HMS) regulations requiring that a Billfish Certificate of Eligibility accompany certain product. The requirement to possess a Billfish Certificate of Eligibility no longer applies because passage of 2018 amendments to the Billfish Conservation Act of 2012 prohibited the associated product sales. This amendment removes a now-obsolete requirement consistent with an alreadyeffective statutory provision. As further discussed below, we anticipate finding good cause that notice is unnecessary and that it will not be necessary to provide an opportunity for public comment. No aspect of this action is controversial. SUMMARY: This final rule is effective on October 21, 2019. ADDRESSES: Documents related to HMS fisheries management, such as the 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its amendments, are available from the HMS Management Division website at https://www.fisheries.noaa.gov/topic/ atlantic-highly-migratory-species or upon request from the HMS Management Division at 1315 East-West Highway, Silver Spring, MD 20910. FOR FURTHER INFORMATION CONTACT: Lauren Latchford by phone at 301–427– 8503 or Rick Pearson by phone at 727– 551–5742. DATES: khammond on DSKJM1Z7X2PROD with RULES Atlantic HMS are managed under the dual authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq., (MagnusonStevens Act) and the Atlantic Tunas Convention Act, 16 U.S.C. 971 et seq., (ATCA). On October 2, 2006, NMFS published in the Federal Register (71 FR 58058) regulations implementing the 2006 Consolidated HMS FMP, which details the management measures for Atlantic HMS fisheries; these management measures have been amended or otherwise modified numerous times. The implementing regulations for Atlantic HMS are at 50 CFR part 635. SUPPLEMENTARY INFORMATION: VerDate Sep<11>2014 18:10 Oct 18, 2019 Jkt 250001 Corrections To Remove Billfish Conservation Act of 2012 Language Regulations at §§ 635.2 (definition of ‘‘Billfish Certificate of Eligibility (COE)’’ and 635.31(b)(2) and (3) are out of date. Except for two specific exemptions that apply to Hawaii and Pacific Insular PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 Areas, the Billfish Conservation Act, as amended in 2018, prohibits any person from offering billfish or billfish products for sale, selling them, or having custody, control, or possession of them for purposes of offering them for sale. Therefore, any language in 50 CFR part 635 referencing the Billfish COE is obsolete. In order to be consistent with Federal Register guidelines, this final action removes the out of date definition at § 635.2 and the language at § 635.31(b)(2) and (3). This final action also revises the language at § 635.31(b)(1). Classification The Assistant Administrator for Fisheries has determined that this final rule is necessary for the conservation and management of U.S. fisheries and that it is consistent with the MagnusonStevens Act, the 2006 Consolidated Atlantic HMS FMP and its amendments, ATCA, and other applicable law. Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest. This action removes regulatory text at 50 CFR part 635 for a requirement that became obsolete as a result of a statutory change that took place in 2018. For this reason, there is also good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness. This final rule has been determined to be not significant for purposes of Executive Order 12866. Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, and a proposed rule is not being published, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable. NMFS has determined that fishing activities conducted pursuant to this rule will not affect endangered and/or threatened species or critical habitat listed under the Endangered Species Act, or marine mammals protected by the Marine Mammal Protection Act, because the action only removes obsolete regulatory text at 50 CFR part 635. List of Subjects in 50 CFR Part 635 Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties. E:\FR\FM\21OCR1.SGM 21OCR1

Agencies

[Federal Register Volume 84, Number 203 (Monday, October 21, 2019)]
[Rules and Regulations]
[Pages 56131-56136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22857]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2017-0094; 4500030113]
RIN 1018-BC52

Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Barrens Topminnow

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered species status under the Endangered Species Act of 1973, as
amended (Act), for the Barrens topminnow (Fundulus julisia), a
freshwater fish species from Cannon, Coffee, Dekalb, and Warren
Counties, Tennessee. This rule adds this species to the Federal List of
Endangered and Threatened Wildlife.

DATES: This rule is effective November 20, 2019.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov under Docket No. FWS-R4-ES-2017-0094 and at https://www.fws.gov/southeast/. Comments and materials we received, as well as
supporting documentation we used in preparing this rule, are available
for public inspection at https://www.regulations.gov under Docket No.
FWS-R4-ES-2017-0094. Comments, materials, and documentation that we
considered in this rulemaking will be available by appointment, during
normal business hours at: U.S. Fish and Wildlife Service, Tennessee
Ecological Services Field Office; 446 Neal Street, Cookeville, TN;
telephone 931-877-8339.

FOR FURTHER INFORMATION CONTACT: Lee Andrews, Field Supervisor, U.S.
Fish and Wildlife Service, Tennessee Ecological Services Field Office,
446 Neal Street, Cookeville, TN; telephone 931-525-4973. Persons who
use a telecommunications device for the deaf (TDD) may call the Federal
Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

[[Page 56132]]

Supporting Documents

We prepared a species status assessment (SSA) report for the
Barrens topminnow. Written in consultation with species experts, the
SSA report represents the best scientific and commercial data available
concerning the status of the Barrens topminnow, including the impacts
of past, present and future factors (both negative and beneficial)
affecting the species. Scientific expertise informing the SSA report
came primarily from the Barrens Topminnow Working Group, which is a
team of biologists from the Service, Tennessee Wildlife Resources
Agency, Tennessee universities, and nongovernment organizations that
have been working on Barrens topminnow conservation since 2001.
Scientists on the Barrens Topminnow Working Group provided expertise in
fish biology, habitat management, and stressors (factors negatively
affecting the species). One biologist outside the Barrens Topminnow
Working Group conducted independent peer review of the SSA report. The
SSA report; the January 4, 2018, proposed rule (83 FR 490); this final
rule; and other materials relating to this rulemaking can be found on
the Service's Southeast Region website at https://www.fws.gov/southeast/ and at https://www.regulations.gov under Docket No. FWS-R4-
ES-2017-0094.

Previous Federal Actions

Please refer to the proposed listing rule for the Barrens topminnow
(83 FR 490; January 4, 2018) for a detailed description of previous
Federal actions concerning this species.

Background

The Barrens topminnow is a small fish with an average lifespan of 2
years that is endemic to springs and gently flowing portions of spring-
fed streams in middle Tennessee. This species relies on aquatic
vegetation for spawning substrate and cover. Owing primarily to
invasive western mosquitofish (Gambusia affinis) that prey upon and
harass Barrens topminnows, the species' range has been curtailed and
its status rangewide is low, based upon the best available scientific
and commercial data available.
Please refer to the January 4, 2018, proposed listing rule for the
Barrens topminnow (83 FR 490) and the SSA report for a full summary of
species information. Both are available on the Service's Southeast
Region website at https://www.fws.gov/southeast/ and at https://www.regulations.gov under Docket No. FWS-R4-ES-2017-0094.

Summary of Comments and Recommendations

In the January 4, 2018, proposed rule (83 FR 490), we requested
that all interested parties submit written comments on the proposal by
March 5, 2018. We also contacted appropriate Federal and State
agencies, scientific experts and organizations, and other interested
parties and invited them to comment on the proposal. We did not receive
any requests for a public hearing.

Peer Reviewer Comments

In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), and our August 22, 2016, memorandum updating and
clarifying the role of peer review actions under the Act (16 U.S.C.
1531 et seq.), we solicited expert opinion from six knowledgeable
individuals with scientific expertise that included familiarity with
the Barrens topminnow and its habitat, biological needs, and threats.
We received a response from one peer reviewer.
We updated the SSA report based on the peer reviewer's comments.
The changes consisted of clarifications and corrections to the SSA
report, including typographical edits, incorporation of omitted
references, and a clarification regarding the definition of a genetic
term. The peer reviewer's comments did not change our determination
that the Barrens topminnow meets the definition of an endangered
species under the Act.

Public Comments

We received 24 public comments on the proposed rule. Eleven of the
comments were supportive of listing the Barrens topminnow as endangered
but did not provide any new information on the species' status. None of
the remaining 13 comments provided substantive comments concerning the
proposed listing of the Barrens topminnow. Ten of those did not address
or provide any information concerning the Barrens topminnow, and three
focused on the need for transparency in regulations implemented under
the Act. Regarding transparency for our listing decision for the
Barrens topminnow, we note that we provide our SSA report, as well as
several other reports and surveys that helped inform this listing
decision, to the public on https://www.regulations.gov under Docket No.
FWS-R4-ES-2017-0094. Thus, none of the public comments changed our
determination that the Barrens topminnow meets the definition of an
endangered species under the Act.

Summary of Changes From the Proposed Rule

As discussed above, we made no changes to this final rule after
consideration of the comments we received.

Summary of Biological Status and Threats

Section 4 of the Act (16 U.S.C. 1533), and its implementing
regulations in title 50 of the Code of Federal Regulations at 50 CFR
part 424, set forth the procedures for adding species to the Federal
Lists of Endangered and Threatened Wildlife and Plants. Under section
4(a)(1) of the Act, we may list a species based on (A) The present or
threatened destruction, modification, or curtailment of its habitat or
range; (B) overutilization for commercial, recreational, scientific, or
educational purposes; (C) disease or predation; (D) the inadequacy of
existing regulatory mechanisms; or (E) other natural or manmade factors
affecting its continued existence. Our assessment evaluates the
biological status of the species and possible threats to its continued
existence based upon the best available scientific and commercial data.
Please refer to the SSA report for a more detailed discussion of
the factors affecting the Barrens topminnow.

Current Condition of the Barrens Topminnow

To evaluate the current and future viability of the Barrens
topminnow, we assessed a range of conditions to consider the species'
resiliency, representation, and redundancy (the ``3 Rs'' described in
detail in the SSA report). The historical range of the Barrens
topminnow included springs and spring runs (first and second order
streams with a spring source) on the Barrens Plateau, which is part of
the Eastern Highland Rim physiographic province in middle Tennessee.
Historical species records are from the Duck River, Elk River, and
Caney Fork River drainages. The Duck River and Elk River drain to the
Tennessee River, and the Caney Fork River drains to the Cumberland
River. Captively held Elk River and wild Caney Fork River stock exist
today and are considered ``evolutionary significant units'' (ESUs,
historically isolated groups of populations that are on independent
evolutionary trajectories). Historical Duck River stock became extinct
in the 1960s, before genetic material could be examined to assess
whether the Duck River stock was a unique ESU or belonged to one of the
two extant ESUs.
Once known to occupy 18 sites (and likely more sites that were not
sampled

[[Page 56133]]

prior to extirpation) within the three drainages, the Barrens topminnow
currently occurs in the wild at 5 sites. The species occurs in the Duck
River drainage in Short Spring and Marcum Spring, and in the Caney Fork
drainage in Benedict Spring, McMahan Creek, and Greenbrook Pond. The
Benedict Spring and McMahan Creek occurrences consist of native stock,
while the remaining three, including the two Duck River occurrences,
are populated with individuals introduced from Caney Fork drainage
sites. An ark population of Barrens topminnows from Pond Spring in the
Elk River drainage is held in captivity at three facilities, with the
intention to reintroduce individuals from that population to the
drainage where habitat conditions are, or can be made, suitable.
Of the five sites currently occupied by the species, the Greenbrook
Pond and Marcum Spring populations are estimated to have medium
resiliency, and the other three populations low resiliency. Rangewide,
the Barrens topminnow has low representation, owing to the species'
reduced genetic diversity, loss of at least one ESU from the wild, and
restriction to a single ecoregion and specific habitat type. Redundancy
is also low, as the species is extant at only 5 of 18 known historical
sites. Based on the 3 Rs, the species' overall current condition is
low.

Threats

The greatest threat to Barrens topminnow is predation from the
western mosquitofish (Factor C), an invasive species native to portions
of Tennessee west of the Barrens Plateau that preys upon young
topminnows and harasses adults. Extirpation of Barrens topminnows has
occurred consistently within 3 to 5 years of western mosquitofish
invasion of a site, and the five sites where Barrens topminnows remain
extant are the only sites not occupied by western mosquitofish.
Predation upon Barrens topminnows by western mosquitofish (Factor
C) is the primary driver of Barrens topminnow range curtailment and
habitat modification (Factor A), as well as adverse demographic changes
(Factor E). The presence of predatory western mosquitofish in most
spring and stream systems of the Barrens Plateau has rendered otherwise
suitable habitat for the Barrens topminnow uninhabitable. In addition
to modification of habitat by a biological feature (invasive western
mosquitofish), alteration of physical habitat features has occurred due
to conversion of surrounding upland habitat to pasture, with
concomitant removal of riparian vegetation and livestock accessing
streams.
Livestock access increases bank erosion, sedimentation, and
nutrient loading in streams. Removal of riparian vegetation can also
increase sedimentation and may raise water temperatures above levels
suitable for Barrens topminnows. While such physical habitat alteration
(Factor A) has occurred and has been a factor in curtailing some of the
species' range, its impact on the topminnow is much less substantial
than predation by western mosquitofish.
Adverse demographic changes (Factor E) also are largely driven by
invasive western mosquitofish (Factor C). The expansion of western
mosquitofish into topminnow habitat has eliminated connectivity between
sites that would allow gene flow and maintenance of genetic diversity.
Each occupied site is vulnerable to extirpation due to prolonged
drought or a flood that enables western mosquitofish invasion.
Topminnows cannot move from these sites during droughts or floods
because western mosquitofish are downstream. Further, the erosion of
genetic variability due to site isolation reduces the capacity of the
species to withstand stochastic events.
Climate change (Factor E) is a threat to the Barrens topminnow.
Drought poses a threat to Barrens topminnows as evidenced by the
Benedict Spring site drying up three times since 2006, although each
time topminnows were rescued from the drying spring and held in
captivity until they could be returned to the spring after the drought
subsided. Climate models at the scale of the Barrens Plateau are
lacking, but in the broader southeastern United States, variability in
weather is expected to increase over the next century, resulting in
more extreme dry and wet years.
We did not find that the Barrens topminnow is impacted by
overutilization (Factor B). Regarding the adequacy of existing
regulatory mechanisms (Factor D), such as regulations implemented under
the Clean Water Act to protect water quality and instream habitat, we
found that they do not address, nor do they contribute to, the threat
of invasive mosquitofish, which is the primary driver of the Barrens
topminnow's status.

Determination

We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Barrens topminnow. The Barrens topminnow is extirpated from 13
of 18 historically occupied sites, which is equivalent to a 72 percent
loss in the species' range. Native Duck River populations have been
lost, and the ESU from the Elk River drainage currently persists only
in captivity. Due primarily to predation by the western mosquitofish,
but secondarily to habitat alternation exacerbated by climate change,
the overall condition of the species is low, based on population
resiliency and rangewide representation and redundancy.
The Act defines an endangered species as any species that is ``in
danger of extinction throughout all or a significant portion of its
range'' and a threatened species as any species that ``is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range.'' As discussed above, the
resiliency, representation, and redundancy of the species has been
severely compromised by the operation of threats in the past, primarily
due to predation by introduced and expanding populations of nonnative
western mosquitofish. In addition, all of the remaining populations of
Barrens topminnow are at imminent risk of further expansion of western
mosquitofish, as well as drought events, with no reasonable prospect of
natural reestablishment once a population is extirpated. Therefore, we
conclude that the species is currently at risk of extinction throughout
its range, thus meeting the definition of an endangered species. For
the same reasons, we find that a threatened species status is not
appropriate for the Barrens topminnow.
Under the Act and our implementing regulations, a species may
warrant listing if it is endangered or threatened throughout all or a
significant portion of its range. Because we have determined that the
Barrens topminnow is in danger of extinction throughout its range, we
find it unnecessary to proceed to an evaluation of potentially
significant portions of the range. Where the best available information
allows the Services to determine a status for the species rangewide,
that determination should be given conclusive weight because a
rangewide determination of status more accurately reflects the species'
degree of imperilment and better promotes the purposes of the statute.
Under this reading, we should first consider whether listing is
appropriate based on a rangewide analysis and proceed to conduct a
``significant portion of its range'' analysis if, and only if, a
species does not qualify for listing as either endangered or threatened
according to the ``all'' language. We note that the court in Desert
Survivors v. Department

[[Page 56134]]

of the Interior, No. 16-cv-01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug.
24, 2018), did not address this issue, and our conclusion is therefore
consistent with the opinion in that case.
Therefore, on the basis of the best available scientific and
commercial information, we list the Barrens topminnow as an endangered
species in accordance with sections 3(6) and 4(a)(1) of the Act.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing results in public awareness and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and requires that recovery actions be carried out for all listed
species. The protection required by Federal agencies and the
prohibitions against certain activities are discussed, in part, below.

Recovery Actions

The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act requires the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed and preparation of a draft and final
recovery plan. The recovery outline guides the immediate implementation
of urgent recovery actions and describes the process to be used to
develop a recovery plan. Revisions of the plan may be done to address
continuing or new threats to the species, as new substantive
information becomes available. The recovery plan identifies site-
specific management actions that set a trigger for review of the five
factors that control whether a species remains endangered or may be
downlisted or delisted, and methods for monitoring recovery progress.
Recovery plans also establish a framework for agencies to coordinate
their recovery efforts and provide estimates of the cost of
implementing recovery tasks. Recovery teams (composed of species
experts, Federal and State agencies, nongovernmental organizations, and
stakeholders) are often established to develop recovery plans. When
completed, the recovery outline, draft recovery plan, and the final
recovery plan will be available on our website (https://www.fws.gov/endangered) or from our Tennessee Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Following publication of this final listing rule, funding for
recovery actions will be available from a variety of sources, including
Federal budgets, State programs, and cost share grants for non-Federal
landowners, the academic community, and nongovernmental organizations.
In addition, pursuant to section 6 of the Act, the State of Tennessee
will be eligible for Federal funds to implement management actions that
promote the protection or recovery of the Barrens topminnow.
Information on our grant programs that are available to aid species
recovery can be found at: https://www.fws.gov/grants.
Please let us know if you are interested in participating in
recovery efforts for the Barrens topminnow. Additionally, we invite you
to submit any new information on this species whenever it becomes
available and any information you may have for recovery planning
purposes (see FOR FURTHER INFORMATION CONTACT).

Critical Habitat

Section 4(a)(3) of the Act and implementing regulations (50 CFR
424.12) require that we designate critical habitat at the time a
species is determined to be an endangered or threatened species, to the
maximum extent prudent and determinable. In the proposed listing rule
(83 FR 490; January 4, 2018), we determined that designation of
critical habitat was prudent but not determinable because specific
information needed to analyze the impacts of designation was lacking.
We are still in the process of assessing this information. We plan to
publish a proposed rule to designate critical habitat for the Barrens
topminnow in the near future.

Regulatory Provisions

Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is listed as an endangered or
threatened species and with respect to its critical habitat, if any is
designated. Regulations implementing this interagency cooperation
provision of the Act are codified at 50 CFR part 402. Section 7(a)(2)
of the Act requires Federal agencies to ensure that activities they
authorize, fund, or carry out are not likely to jeopardize the
continued existence of any endangered or threatened species or destroy
or adversely modify its critical habitat. If a Federal action may
affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the Service; technical
assistance and projects funded through the U.S. Department of
Agriculture Natural Resources Conservation Service; issuance of permits
by the Tennessee Valley Authority for right-of-way stream crossings;
issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.)
permits by the U.S. Army Corps of Engineers; and construction and
maintenance of roads or highways by the Federal Highway Administration.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, also codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to take (which includes harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect; or to attempt any of
these) endangered wildlife within the United States or on the high
seas. In addition, it is unlawful to import; export; deliver, receive,
carry, transport, or ship in interstate or foreign commerce in the

[[Page 56135]]

course of commercial activity; or sell or offer for sale in interstate
or foreign commerce any listed species. It is also illegal to possess,
sell, deliver, carry, transport, or ship any such wildlife that has
been taken illegally. Certain exceptions apply to employees of the
Service, the National Marine Fisheries Service, other Federal land
management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits for endangered wildlife are codified at 50 CFR 17.22.
A permit may be issued for the following purposes: For scientific
purposes, to enhance the propagation or survival of the species, and
for incidental take in connection with otherwise lawful activities.
There are also certain statutory exemptions from the prohibitions,
which are found in sections 9 and 10 of the Act.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a final listing
on proposed and ongoing activities within the range of a listed
species. Based on the best available information, the following actions
are unlikely to result in a violation of section 9, if these activities
are carried out in accordance with existing regulations and permit
requirements; this list is not comprehensive:
(1) Normal agricultural practices, including herbicide and
pesticide use, which are carried out in accordance with any existing
regulations, permit and label requirements, and best management
practices; and
(2) Normal residential landscaping activities.
Based on the best available information, the following activities
may potentially result in a violation of section 9 the Act; this list
is not comprehensive:
(1) Collection or handling of the Barrens topminnow;
(2) Introduction of nonnative species that compete with or prey
upon the Barrens topminnow, including western mosquitofish and other
species in the mosquitofish genus Gambusia;
(3) Removal or destruction of native aquatic vegetation in any body
of water in which the Barrens topminnow is known to occur; and
(4) Discharge of chemicals or fill material into any waters in
which the Barrens topminnow is known to occur.
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Tennessee
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Required Determinations

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act, need not be prepared in connection with
listing a species as an endangered or threatened species under the
Endangered Species Act. We published a notice outlining our reasons for
this determination in the Federal Register on October 25, 1983 (48 FR
49244).

Government-to-Government Relationship With Tribes

In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. There are no tribal lands affected by
this listing determination.

References Cited

A complete list of references cited in the SSA report that informed
this rulemaking is available on the internet at https://www.regulations.gov under Docket No. FWS-R4-ES-2017-0094 and upon
request from the Tennessee Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).

Authors

The primary authors of this final rule are the staff members of the
Service's Tennessee Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.

0
2. Amend Sec. 17.11(h) by adding an entry for ``Topminnow, Barrens''
to the List of Endangered and Threatened Wildlife in alphabetical order
under FISHES to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------

* * * * * * *
Fishes

* * * * * * *
Topminnow, Barrens.............. Fundulus julisia.. Wherever found.... E 83 FR [insert Federal
Register page where
the document begins],
10/21/2019.

* * * * * * *
----------------------------------------------------------------------------------------------------------------

[[Page 56136]]

Dated: August 20, 2019.
Margaret E. Everson,
Principal Deputy Director, U.S. Fish and Wildlife Service, Exercising
the Authority of the Director, U.S. Fish and Wildlife Service.
[FR Doc. 2019-22857 Filed 10-18-19; 8:45 am]
BILLING CODE 4333-15-P

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