[Federal Register Volume 69, Number 65 (Monday, April 5, 2004)]
[Proposed Rules]
[Pages 17627-17634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-7547]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AJ08
Endangered and Threatened Wildlife and Plants; Proposed Removal
of Helianthus eggertii (Eggert's Sunflower) From the Federal List of
Endangered and Threatened Species and Determination That Designation of
Critical Habitat Is Not Prudent
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule and notice of finding.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
remove the plant Helianthus eggertii (Eggert's sunflower) from the List
of Endangered and Threatened Wildlife and Plants pursuant to the
Endangered Species Act of 1973, as amended (Act), because recovery
actions have secured a number of populations and identified additional
populations not previously known. Therefore, the threatened designation
no longer correctly reflects the current status of this plant. This
action is based on a review of all available data, which indicates that
the species is more widespread and abundant than was documented at the
time of listing, is more resilient and less vulnerable to certain
activities than previously thought, and is now protected on Federal,
State, and county lands. Due to the recent development of a management
plan for H. eggertii, a management plan for the barrens/woodland
ecosystem, and an Integrated Natural Resources Management Plan at the
U.S. Air Force's Arnold Engineering and Development Center, on whose
land a significant number of sites/populations occur, new management
practices will include managing for, and monitoring the areas that
contain, this species. Occurrences of H. eggertii are also found on six
other Federal, State, or county lands, three of which now have
conservation agreements with us to protect, manage, and monitor the
species.
At the time of listing, there were 34 known Helianthus eggertii
sites occurring in 1 county in Alabama, 5 counties in Kentucky, and 8
counties in Tennessee. The species was not defined in terms of
``populations'' at that time. Increased knowledge of H. eggertii and
its habitat has resulted in increased success in locating new plant
sites. Presently, there are 279 known H. eggertii sites (making up 68
populations) distributed across 2 counties in Alabama, 9 counties in
Kentucky, and 15 counties in Tennessee. Consequently, H. eggertii is
not likely to become endangered within the foreseeable future
throughout all or a significant portion of its range and, therefore, is
no longer considered to be threatened. If made final, this rule would
remove H. eggertii from the list of threatened and endangered species.
In response to a court order, we have also reconsidered whether
designating critical habitat for Helianthus eggertii would be prudent
based on this species' current status. We have determined that such a
designation would not be prudent because, as set out in detail
elsewhere in this proposal, we believe the species no longer warrants
listing under the Act. There is accordingly no area which meets the
definition of critical habitat.
DATES: We will consider comments on this proposed delisting if they are
received by June 4, 2004. Public hearing requests must be received by
May 20, 2004.
ADDRESSES: If you wish to comment on this proposed delisting, you may
submit your comments by any one of several methods:
1. You may submit written comments and information to the Field
Supervisor, U.S. Fish and Wildlife Service, 446 Neal Street,
Cookeville, TN 38501.
2. You may hand-deliver written comments to our Tennessee Field
Office at the above address or fax your comments to 931/528-7075.
Comments and materials received will be available for public
inspection, by appointment, during normal business hours at the above
address.
FOR FURTHER INFORMATION CONTACT: Timothy Merritt at the above address
(telephone 931/528-6481, extension 211; facsimile 931/528-7075).
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We intend that any final action resulting from this proposed
delisting will be as accurate and as effective as possible. Therefore,
we solicit comments or suggestions from the public, other concerned
governmental agencies, the scientific community, industry, or any other
interested parties concerning this proposed delisting. We particularly
seek comments concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to Helianthus eggertii;
(2) Additional information concerning the range, distribution,
location of any
[[Page 17628]]
additional populations, and population size of this species; and
(3) Current or planned activities in the species' habitat and these
activities' possible impacts on this species.
Comments may be submitted as indicated under ADDRESSES. Our
practice is to make comments, including names and home addresses of
respondents, available for public review during regular business hours.
A respondent may request that we withhold their home address from the
rulemaking record, which we will honor to the extent allowable by law.
There also may be circumstances in which we would withhold from the
rulemaking record a respondent's identity, as allowable by law. If you
wish us to withhold your name and/or address, you must state this
prominently at the beginning of your comment. However, we will not
consider anonymous comments. We will make all submissions from
organizations or businesses available for public inspection in their
entirety.
In making a final decision on this proposed delisting, we will take
into consideration the comments and any additional information we
receive. Such communications may lead to a final regulation that
differs from this proposed rule. Comments and materials received, as
well as supporting information used to write this rule, will be
available for public inspection, by appointment, during normal business
hours at the address indicated in the ADDRESSES section.
The Act provides for a public hearing on this proposed delisting,
if requested. Requests must be received within 45 days of the date of
publication of this proposal. Such requests must be made in writing and
addressed to the Field Supervisor, U.S. Fish and Wildlife Service,
Tennessee Field Office (see ADDRESSES section).
Background
Helianthus eggertii (Eggert's sunflower) is a perennial member of
the aster family (Asteraceae) known only from Alabama, Kentucky, and
Tennessee. Although it was originally described in 1897, most
collections have been made since 1990, when extensive searches for the
species began (Jones 1991, USFWS 1999a). The species is commonly
associated with the barrens/woodland ecosystem, a complex of generally
subxeric (somewhat dry) plant communities maintained by drought and
fire with a grassy ground cover and scattered medium-to-small-canopy
trees (USFWS 1999a).
Helianthus eggertii is a tall plant, growing up to 2.5 meters (8
feet), with round stems arising from fleshy rhizomes (lateral storage
stems that grow along or just below the soil's surface). The stems and
upper leaf surfaces have a blue-waxy coloration, and that and the lower
leaf surfaces are conspicuously whitened (Jones 1991). It has opposite
(rarely whorled) leaves that are sessile (without a stalk), lanceolate
(lance-shaped) to narrowly ovate (egg-shaped) in shape, and are either
scabrous (rough) or glabrous (smooth) on the upper surface. Leaf edges
are smooth or minutely toothed and the tip is usually pointed. Large
yellow flowers 8 centimeters (3 inches) in diameter are borne on the
upper third of the stem. Seeds are blackish or grayish and mottled, 5
to 6 millimeters (0.20 to 0.24 inch) long, faintly striated (striped),
and with a few scattered hairs. Flowering begins in early August and
continues through mid-September and achenes (small, dry, hard, one-
celled, one-seeded fruit that stays closed at maturity) mature from
early September to early October (Jones 1991). Jones (1991) observed
fruit set at between 5 and 25 seeds per flower head. Originally, seed
germination rates were thought to be low (rarely exceeding 25 percent),
possibly requiring exposure to cold to break dormancy (USFWS 1999a).
However, recent data suggest that seed germination rates are relatively
high (around 65 percent) if the seeds go through a stratification
process (a period of cold weather, moisture, and darkness needed to
break dormancy) (Cruzan 2002).
This sunflower develops an extensive rhizome system that may result
in the production of dense clusters or patches of stems. These rhizomes
can live for many years. Because of this extensive rhizome system, the
plant does not have to produce seeds every year to ensure its survival.
If environmental conditions change (e.g., increased competition,
shading, etc.), it can survive for several years by vegetative means,
as Jones (1991) has noted in several populations. Plants may also be
established from seeds within these patches, so a mix of different
individuals can eventually contribute to these extensive patches (Jones
1991). Cruzan (2002) concluded that the level of genetic diversity in
this species appears to be relatively high and that the highest levels
of genetic diversity occur in the southern portion of the species'
range. Cruzan (2002) also concluded that the range of Helianthus
eggertii is not geographically subdivided into distinct genetic units.
Helianthus eggertii is a hexaploid (composed of cells that have six
chromosome sets) sunflower, and, although its distinctiveness as a
species has been established by morphological studies (USFWS 1999a) and
biochemical studies (Spring and in Schilling 1991), it probably
outcrosses (breeds with less closely related individuals) with other
hexaploid sunflowers (Jones 1991). It is not known how commonly
outcrossing occurs and to what degree this can eventually degrade the
genetic integrity of the species. Helianthus strumosus (pale-leaved
woodland sunflower), occasionally found in association with H.
eggertii, has been identified as a sunflower with a compatible ploidy
(number of sets of chromosomes) level (Jones 1991).
Helianthus eggertii typically occurs on rolling-to-flat uplands and
in full sun or partial shade. It is often found in open fields or in
thickets along woodland borders and with other tall herbs and small
trees. It persists in, and may even invade, roadsides, power line
rights-of-way, or fields that have suitable open habitat. The
distribution of this species shows a strong correlation with the
barrens (and similar habitats) of the Interior Low Plateau
Physiographic Province, with some records from the Cumberland Plateau
Section of the Appalachian Plateau Physiographic Province.
When Helianthus eggertii was listed as threatened in 1997, it was
known from only 1 site in one county in Alabama, 13 sites in 5 counties
in Kentucky, and 20 sites in 8 counties in Tennessee. While the species
was not defined in terms of ``populations'' at that time, the Alabama
site was described as vigorous, while most sites in Kentucky contained
less than 15 stems, with 4 sites having 5 or fewer stems, and about 50
percent of the Tennessee sites contained fewer than 20 stems (62 FR
27973, May 22, 1997). When the recovery plan for this species was
finalized in 1999, there was 1 known site in Alabama, 27 sites in 6
counties in Kentucky, and 203 sites in 12 counties in Tennessee.
The term ``population,'' as it relates to Helianthus eggertii, was
first defined in the Recovery Plan as ``a group of plants that is
isolated by geographic discontinuity or a distance of one-half mile''
(USFWS 1999a). Recent studies on H. eggertii genetics by Cruzan (2002)
suggested that a population of fewer than 100 flowering stems is
unlikely to be sufficiently large enough to maintain genetic diversity.
Cruzan (2002) also estimated a reasonable fragmentation threshold of 1
kilometer (km) (0.6 mile); that is, sites within that distance of each
other were close enough to exchange genetic material. The further use
of the term ``population'' in this document
[[Page 17629]]
indicates a site, or sites, that cumulatively have more than 100
flowering plants and that do not occur more than 1 km apart. Based on
2003 data from the Alabama, Kentucky, and Tennessee Natural Heritage
Programs and the Service, there are 3 known sites in 2 counties in
north Alabama, 33 sites in 9 counties in central Kentucky, and 243
sites in 15 counties in middle Tennessee (Alabama Natural Heritage
Database 2003; Kentucky Natural Heritage Database 2003; Tennessee
Natural Heritage Database 2003; USFWS unpublished data). Applying the
definition above to the current situation for this species, Alabama has
3 populations, Kentucky has 18 populations, and Tennessee has 47
populations; 27 of these 68 populations occur on public lands.
Furthermore, the total of 279 currently known sites of Helianthus
eggertii far exceeds the 34 sites known at the time the species was
listed.
Previous Federal Actions
Federal actions on this species began in 1973, when the Act was
first passed. Section 12 of the Act directed the Secretary of the
Smithsonian Institution to prepare a report on those plants considered
to be endangered, threatened, or extinct. This report, designated as
House Document No. 9451, was presented to Congress on January 9, 1975.
On July 1, 1975, we published a notice in the Federal Register (40 FR
27823) that formally accepted the Smithsonian report as a petition
within the context of section 4(c)(2) (now section 4(b)(3)) of the
Act). By accepting this report as a petition, we also acknowledged our
intention to review the status of those plant taxa named within the
report. H. eggertii was included in the Smithsonian report and also in
the July 1, 1975, Notice of Review (40 FR 27823). On June 16, 1976, we
published a notice in the Federal Register (41 FR 24523) that
determined approximately 1,700 vascular plant taxa, including H.
eggertii, to be endangered pursuant to section 4 of the Act.
The 1978 amendments to the Act required that all proposals that
were not finalized within two years be withdrawn. On December 10, 1979
(44 FR 70796), we published a notice withdrawing all plant species
proposed in the June 16, 1976, rule. The revised Notice of Review for
Native Plants published on December 15, 1980 (45 FR 82480), included
Helianthus eggertii as a category 2 species. Category 2 species were
described as those taxa for which the Service had information
indicating that proposing to list them as endangered or threatened
might be appropriate, or for which substantial data on biological
vulnerability and threats were not known at the time or were not on
file to support the listing. It was subsequently retained as a category
2 species when the Notice of Review for Native Plants was revised in
1983 (48 FR 53640), 1985 (50 FR 39526), and 1990 (55 FR 6184).
All plant taxa included in the comprehensive plant notices are
treated as if under a petition. Section 4(b)(3)(B) of the Act, as
amended in 1982, requires the Secretary to make certain findings on
pending petitions within 12 months of their receipt. Section 2(b)(1) of
the 1982 amendments further requires that all petitions pending as of
October 13, 1982, be treated as having been newly submitted on that
date. This was the case for H. eggertii because of the acceptance of
the 1975 Smithsonian report as a petition. In 1983, we found that the
petition calling for the listing of H. eggertii was not warranted
because of insufficient data on its distribution, vulnerability, and
degrees of threat. We funded a survey in 1989 to determine the status
of H. eggertii in Alabama, Kentucky, and Tennessee. In 1990, the
Service had not yet received the results of the survey we had funded
and it was believed that additional surveys of potential habitat and
further identification of threats were needed before a decision could
be made on whether to propose listing the species.
In 1991, we accepted a final report on these surveys (Jones 1991).
Information contained in the 1991 final report completed informational
gaps and provided what was then thought to be sufficient data to
warrant preparation of a proposed rule to list the species. Helianthus
eggertii was accepted as a category 1 species on August 30, 1993, and
was included in the revised Notice of Review for Native Plants
published on September 30, 1993 (58 FR 51144). On September 9, 1994 (59
FR 46607), we published a proposal to list H. eggertii as a threatened
species in the Federal Register. A final rule placing H. eggertii on
the Federal List of Endangered and Threatened Plants as a threatened
species was published on May 22, 1997 (62 FR 27973). That decision
included a determination that the designation of critical habitat was
not prudent for H. eggertii.
The final Recovery Plan for Helianthus eggertii (Recovery Plan) was
completed in December 1999. The Recovery Plan provides the following
criteria to consider H. eggertii for delisting--(1) the long-term
conservation/protection of 20 geographically distinct, self-sustaining
populations (distributed throughout the species' range or as determined
by genetic uniqueness) must be provided through management agreements
or conservation easements on public land or land owned by private
conservation groups and (2) these populations must be under a
management regime designed to maintain or improve the habitat and each
population must be stable or increasing for 5 years. There are
presently 27 populations that are under a management regime that
benefits the species and that occur on public land or land owned by a
private conservation group (i.e., The Nature Conservancy (TNC)). These
are geographically distinct (separated by more than 1 km (0.62 miles)),
and self-sustaining (greater than 100 flowering stems). These
populations are scattered throughout the species' historic range. We
have 5 years of monitoring data on each of the 27 populations that show
they are stable or increasing. We have finalized cooperative management
agreements with Kentucky Transportation Cabinet (one population),
Tennessee Wildlife Resources Agency (seven populations), and Mammoth
Cave National Park (three populations) for the long-term protection of
H. eggertii. We are in the process of finalizing cooperative management
agreements that will protect the remaining populations that occur on
public lands and TNC property. We expect to have these agreements in
place before this rule is finalized. These cooperative management
agreements will remain in place even if the species is delisted.
Federal involvement with Helianthus eggertii subsequent to listing
has included funding for recovery activities such as surveys for new
locations, monitoring of known populations, population and ecological
genetics studies, and collection and analysis of ecological and
biological data. We have also been involved with the development of the
Eggert's Sunflower Management Plan, Barrens Management Plan, and the
Integrated Natural Resources Management Plan for Arnold Air Force Base
in Tennessee. All of these plans address H. eggertii and its habitat
(see discussion under Factor A). Recently we have signed an agreement
with the Kentucky Transportation Cabinet to protect and manage a H.
eggertii site in Hart County, Kentucky. We have evaluated potential
impacts to this species from 248 Federal actions. The majority of these
actions are highway and pipeline projects. We have conducted two formal
consultations; one resulted in a ``no effect'' to the
[[Page 17630]]
species finding and the other a ``not likely to jeopardize the
continued existence'' of the species finding. No plants were adversely
affected by either project.
On October 12, 2000, the Southern Appalachian Biodiversity Project
filed suit against us, challenging our determination that designation
of critical habitat for Helianthus eggertii was not prudent (Southern
Appalachian Biodiversity Project v. United States Fish and Wildlife
Service, Norton & Williams (CN 2:00-CV-361 (E.D. TN)). On November 8,
2001, the District Court of the Eastern District of Tennessee issued an
order directing us to reconsider our previous prudency determination
and submit a new prudency determination for H. eggertii no later than
December 29, 2003. On January 8, 2004, the court extended the
submission date to not later than March 30, 2004. Accordingly, we are
including a new prudency determination in this proposal to delist H.
eggertii.
Summary of Factors Affecting the Species
Section 4(a)(1) of the Act and the regulations (50 CFR part 424)
issued to implement the listing provisions of the Act set forth five
criteria to be used in determining whether to add, reclassify, or
remove a species from the Federal List of Endangered and Threatened
Wildlife and Plants. These five factors and their application to
Helianthus eggertii are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. In 1997, when Helianthus eggertii
was listed as threatened, most of the 34 known sites of this species
were thought to be threatened with destruction or modification of their
habitat. It was estimated that over 50 percent of the known sites were
threatened by the encroachment of more competitive herbaceous
vegetation and/or woody plants that produce shade and compete with this
species for limited water and nutrients. Active management was listed
as a requirement to ensure the plant's continued survival at all sites.
Since most of the sites where this species survives are not natural
barrens, but areas such as rights-of-way or similar habitats that mimic
barrens, direct destruction of this habitat for commercial,
residential, or industrial development or intensive rights-of-way
maintenance (e.g., herbicide use) was thought to be a significant
threat to the known sites at the time of listing.
Overall, the activities affecting the species' habitat, such as
encroachment of more competitive vegetation, direct destruction of
habitat for commercial and residential development, intensive rights-
of-way maintenance, and conversion of barrens habitat to croplands,
pasture, or development, appear to have changed very little since
listing. However, the risk those threats pose for Helianthus eggertii's
survival and conservation are considerably less than what was
understood at the time of listing. H. eggertii appears to respond
favorably to disturbance. One site that occurs in Coffee County,
Tennessee, was known to have hundreds of stems in 1998 before the site
was clearcut. In 2000, Tennessee Department of Environment and
Conservation (TDEC) found that there were very few plants left and it
was thought that the logging had resulted in the destruction of the
plants at this site. However, in 2003, we found that the site had 1,578
total stems, including 951 flowering stems. Logging had only a
temporary negative effect and the resulting land disturbance resulted
in greatly increasing the size and vigor of the plants at this site
(USFWS, unpublished data 2003). This same event has occurred on the
Arnold Air Force Base in Coffee County. Pine stands that had few to no
H. eggertii had been clearcut, followed by either the new appearance of
H. eggertii or a significant increase in size and vigor of existing
plants (K. Fitch, pers. comm. 2003). Many of the known H. eggertii
sites occur along road and power line rights-of-way. This is probably
due to the disturbance of these areas from continual maintenance
activities. While plants will not grow and flower well in very deep
shade (i.e., 80 percent), the moderate levels of shade (from 40 to 60
percent) where H. eggertii normally occurs do not appear to have large
negative consequences for its growth or reproduction (Cruzan 2002).
Cruzan (2002) also found that H. eggertii competes well against other
more widespread species under full sunlight and 60 percent shade
conditions, a fact that was not known at the time of listing.
At the time of listing, we did not fully understand that Helianthus
eggertii could readily adapt to utilizing manmade disturbances to
replace the dwindling natural barrens. We originally thought the
species was restricted to these natural barren areas. When H. eggertii
was listed, manmade areas were thought to be low-quality sites where
the species was making a last ditch effort to survive. Upon discovering
that manmade sites were a significant habitat H. eggertii was
exploiting and in which it was thriving, we began finding a significant
number of new sites. In fact, since listing, an additional 245 sites
have been found that contain the species (Alabama Natural Heritage
Database 2003; Kentucky Natural Heritage Database 2003; Tennessee
Natural Heritage Database 2003; USFWS unpublished data 2003). The
species is also more widespread than originally thought, occurring in 2
counties in Alabama, 9 counties in Kentucky, and 15 counties in
Tennessee. The number of stems has also increased dramatically from the
time of listing. In Alabama, the one site known at the time of listing
was described as vigorous; presently, there are three sites and all
three have more than 100 stems (Alabama Natural Heritage Database
2003). In Kentucky, most of the 13 original sites at the time of
listing contained fewer than 15 stems and 4 sites had fewer than 5
stems. Presently in Kentucky, there are 33 known sites; 13 of these
sites have more than 100 stems, and are now considered viable
populations (Kentucky Natural Heritage Database 2003). In Tennessee,
about one-half of the 20 original sites at the time of listing
contained fewer than 20 stems. Currently in Tennessee, there are 243
known sites, 63 of which have more than 100 stems and are now
considered viable populations (Tennessee Natural Heritage Database
2003; USFWS unpublished data 2003).
Of the 279 sites where Helianthus eggertii is known to occur in
Alabama, Kentucky, and Tennessee, 126 (which make up 27 total
populations) are in public ownership or on land owned by TNC and are
being managed to protect the species. Protection for the species will
continue on these sites even if it is delisted. Arnold Engineering and
Development Center (AEDC), operated by the U.S. Air Force, has 115 of
these sites (11 populations) and is the largest Federal landowner
harboring this species. H. eggertii is covered by AEDC's Integrated
Natural Resources Management Plan (INRMP), a Barrens Management Plan
(BMP), and a separate Eggert's Sunflower Management Plan (ESMP). The
INRMP, BMP, and ESMP are active management plans that provide for the
long-term conservation of this species by focusing on restoring barrens
habitat and maintaining the necessary ecological processes in habitats
the species requires. These processes include various silvicultural
treatments (e.g., clearcuts, marked thinning, and row thinning),
prescribed burning, and invasive pest plant management (e.g., manual
removal and herbicide spot application). Regardless of the Federal
status of H. eggertii, the BMP, ESMP, and INRMP will continue
[[Page 17631]]
to provide for the protection and management of this species (U.S. Air
Force (USAF) 2001, USAF 2002). In Kentucky, Mammoth Cave National Park
(MCNP) has three populations and there is one population on U.S. Army
Corps of Engineers property at Nolin Lake. MCNP is actively managing H.
eggertii populations and has implemented a prescribed burning regime to
provide for the long-term protection of this species. We have recently
signed a Cooperative Management Agreement with MCNP to provide long-
term protection of the three H. eggertii populations occurring on Park
property. These populations and the barrens habitats on which they
occur will be sustained by implementing habitat management activities,
such as prescribed burns, tree thinning, and invasive plant removal,
and monitoring the plants and their habitat. We also have draft
Cooperative Management Agreements being reviewed by AEDC and the U.S.
Army Corps of Engineers. We believe that these agreements will be
signed before this proposed rule is finalized, within a year. These
agreements, like the MCNP agreement, will provide for the long-term
protection of H. eggertii populations by implementing the above-listed
habitat management activities. These agreements will aid in sustaining
these populations on these Federal lands regardless of the Federal
status of this species.
Helianthus eggertii is an early successional stage species and,
while historic barrens habitat is becoming increasingly rare, this
species readily responds to barrens restoration activities as well as
colonizing manmade disturbed areas. The key to long-term survival of H.
eggertii is periodic burning, mowing, or thinning of the competing
vegetation. Kentucky Transportation Cabinet has signed a management
agreement with us to maintain, enhance, and monitor H. eggertii on its
property (41 acres, one population) which includes restoring barrens
habitat by thinning the existing trees near H. eggertii occurrences,
conducting periodic prescribed burns, and monitoring the success of
these management practices to refine them if necessary. The management
agreement is in effect until 2010 delete previous place.
The Alabama and Tennessee State Departments of Transportation are
working with us to develop and maintain roadside mowing regimes that
would benefit existing Helianthus eggertii sites. This will also
encourage new establishment of plants along road rights-of-way by
reducing the competing vegetation and keeping the areas open. The
Tennessee Wildlife Resources Agency (TWRA), which owns four wildlife
management areas that contain seven H. eggertii populations, is
managing these areas for small game, which indirectly benefits this
species by keeping the area in early successional vegetation. We have
drafted a management agreement with TWRA that would provide for the
protection of this species on its lands for an initial period of 10
years. This agreement is in the process of being signed and, like the
Federal agreements, will involve habitat management activities such as
prescribed burns, tree thinning, and invasive plant removal, and
monitoring the plants and their habitat to ensure the protection and
management of these sites regardless of the Federal status of H.
eggertii. Similarly, we have drafted a management agreement with the
City of Nashville, Metro Parks and Recreation, which owns and operates
Beaman Park in Davidson County, Tennessee. Beaman Park contains two
populations of H. eggertii. This park is new and plans are being
developed for future uses such as hiking trails, picnic areas, park
headquarters, and maintenance buildings. We are working with Metro
Parks to ensure that the existing H. eggertii populations are
protected. The draft agreement will be signed before this proposed rule
is finalized (within one year), and will include the above-listed
habitat management activities.
TNC in Kentucky owns a site known as Baumberger Barrens, which
contains one population of Helianthus eggertii. TNC has an existing
management plan for the barrens that includes H. eggertii. The site is
undergoing management, such as removal of woody species, periodic
prescribed burns, and invasive plant removal, to ensure the native
barrens species, including H. eggertii, are maintained and protected.
It is our understanding that this site will be protected in perpetuity
by TNC of Kentucky for the people of Kentucky.
TNC of Kentucky and the State of Kentucky each own 50 percent in a
site known as Eastview Barrens. One population of Helianthus eggertii
occurs at the Eastview Barrens. These two landowners are working
together to manage the barrens on this site by removing woody species,
conducting periodic prescribed burns, and preventing and removing
invasive plants to ensure the native barrens species, including H.
eggertii, are maintained and protected. This site will be protected in
perpetuity by TNC of Kentucky and the State of Kentucky for the people
of Kentucky.
The large increase in new Helianthus eggertii sites (245) since
listing, the increased understanding of the plant's adaptability, and
the protection and management provided by State and Federal landowners
have led us to conclude that the threats to H. eggertii's habitat have
been adequately addressed and habitat destruction is no longer
considered to be a threat to the species.
B. Overutilization for commercial, recreational, scientific, or
educational purposes. We have no documented evidence, records, or
information to indicate that overutilization for commercial,
recreational, scientific, or educational purposes is a threat to
Helianthus eggertii. We have found no records of unauthorized
collection during our literature review or in discussions with
researchers. This species is not believed to be a significant component
of the commercial trade in native plants, and overutilization does not
constitute a threat for this species.
C. Disease or predation. Disease has been observed by the Service
and other observers on small numbers of Helianthus eggertii plants (T.
Gulya, pers comm. 2004). This disease is believed to be a rust fungi of
either the Puccinia or Coleosporium genus (T. Gulya, pers comm. 2004).
This rust attacks the vegetation and leaves orange-to-brown pustules
(raised bumps or areas) on the surfaces. It does not appear to kill the
plants, and we do not believe that it is a threat to the species'
existence. Predation from insects and herbivores has also been noted on
small isolated patches of H. eggertii. These incidents appear to result
from normal environmental conditions. Because of the ability of this
plant to sprout stems from rhizomes, the small amount of predation
observed does not pose a threat to this species.
D. The inadequacy of existing regulatory mechanisms. The Act does
not provide protection for plants on private property unless the
landowner's activity is federally funded or requires Federal approval.
In all three States (Alabama, Kentucky, and Tennessee), plants have no
direct protection under State law on private property. Plants on
private property are afforded ancillary protection under State criminal
trespass laws. If this proposed delisting rule is finalized, the only
change to the protection of Helianthus eggertii on private land would
be that we would no longer consult under section 7 of the Act for the
activities that are federally funded or require Federal approval.
However, there are enough populations of H. eggertii on public lands
(27 populations) to afford the long-term
[[Page 17632]]
conservation of this species based on the recovery criteria (20
populations) in the Recovery Plan. The recovery criteria called for the
20 populations to be distributed throughout the species' historical
range and, based on the number and distribution of populations known at
that time, determined that the relative proportions would be one
population in Alabama, three populations in Kentucky, and 16
populations in Tennessee. Although none of the three populations in
Alabama are currently under a management plan, we believe that the
current distribution of populations under such plans meets the intent
of the recovery criteria because they are ``distributed throughout the
species'' historical range,'' including populations that occurred near
the Tennessee/Alabama border.
Section 9(a)(2)(B) of the Act prohibits removal and possession of
endangered plants from areas under Federal jurisdiction. Kentucky has 4
populations and Tennessee has 11 populations that occur on Federal
lands. None of the three populations in Alabama occurs on Federal
lands. Helianthus eggertii sites on MCNP in Kentucky are also protected
from take by Code of Federal Regulations, Title 36, Volume 1, which
protects all plants on Department of Interior lands. We have a
cooperative management agreement with the Mammoth Cave National Park
and we anticipate having signed agreements with the remaining Federal
landowners before this rule is finalized, within one year. These
agreements would protect Helianthus eggertii and its habitat for a
period of 10 years, regardless of the Federal status of the species.
Both the plant and its habitat would be protected, managed, and
monitored under these agreements.
On public lands in Tennessee and Kentucky, on which 27 populations
(composed of 126 of the 279 known sites, and including the 15
populations on Federal lands just discussed) of the plants are found,
Helianthus eggertii is adequately protected by other laws. Air Force
Instruction 32-7064 at 7.1.1 provides the same protection for candidate
and State listed species as for federally listed species ``when
practical'' on AEDC. It is our understanding that the State of
Tennessee has no plans to delist H. eggertii in the immediate future.
In addition, as mentioned previously, H. eggertii is covered under 3
management plans covering AEDC (INRMP, Barrens Management Plan and
Eggert's Sunflower Management Plan), all of which will continue for
some years regardless of whether the species is delisted. The TWRA has
a rule (1660-1-14-.14) that protects all vegetation on designated
wildlife management areas from take regardless of its State or Federal
status. There are 10 known populations of H. eggertii that occur on
State-owned public lands in Tennessee; 5 of these populations occur on
4 different State wildlife management areas managed by the TWRA. On
public lands in Alabama and Kentucky, every natural component is
considered public domain and is, therefore, protected from take under
State law. Alabama has one population and Kentucky has three
populations of H. eggertii that occur on State-owned public lands.
These State laws will remain in effect regardless of whether this
species remains federally listed or not.
The ESA protects plants on private lands only if the actions which
might adversely impacted them are conducted, permitted or funded by a
Federal agency, or constitute criminal trespass or theft of the plants.
The limited protection afforded by the Act under these circumstances
would be lost through delisting, and other existing regulations did not
provide complete protection to all existing habitat on private lands.
However, we believe the significant protections afforded to the 27
populations occurring on public lands are adequate to ensure those
populations of H. eggertii remain viable, and such populations by
themselves meet or exceed the recovery goals listed in the recovery
plan.
E. Other natural or manmade factors affecting its continued
existence. Extended drought conditions and an increase in the potential
for inbreeding depression due to dwindling numbers were thought to
affect the continued existence of H. eggertii at the time of listing.
The known sites of H. eggertii have now increased in number to 279 (68
populations) and are scattered throughout 26 counties in three States.
This makes the likelihood of a drought adversely affecting all the
known sites much less than originally thought, when there were only 34
known sites. Also, there are three populations in Alabama, 18
populations in Kentucky, and 47 populations in Tennessee, for a total
of 68 populations, that have more than 100 flowering stems. The
Recovery Plan criterion requires only 20 populations to be considered
for delisting. Cruzan (2002) suggested that 100 flowering stems or more
were needed to maintain genetic diversity and prevent inbreeding
depression within a population. Inbreeding depression due to low
numbers of individuals per population is no longer a threat to H.
eggertii. We believe the known number of sites, the numbers of existing
populations, and their distribution are sufficient to protect against
potential catastrophic events (e.g., drought) and no longer consider
such events to be a threat to this species. There are no other natural
or manmade factors known to affect the continued existence of H.
eggertii; therefore, we do not believe these factors will affect the
continued existence of this species.
Summary of Findings
According to 50 CFR 424.11(d), a species may be delisted if the
best scientific and commercial data available substantiate that the
species is neither endangered nor threatened because of (1) extinction,
(2) recovery, or (3) error in the original data for classification of
the species. The ``error in the original data'' category for delisting
a species has been further subdivided by the Service to more
specifically identify the ``error'' as follows--(1) better data
(foreign, scientific, or commercial information), (2) scientific
(taxonomic) revision of the listing basis (subsequent to listing), (3)
amendment to the Act (the scope of listing under section 4), and (4)
additional discoveries of previously unknown populations and/or
habitats (USFWS 1999b).
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
faced by Helianthus eggertii. Based on 2001, 2002, and 2003 surveys, we
conclude that the threatened designation no longer correctly reflects
the current status of this plant. Relative to the information available
at the time of listing, recovery actions have resulted in new
information that shows a significant (1) expansion in the species'
known range, (2) increase in the number of known sites, and (3)
increase in the number of individual plants. Furthermore, recovery
efforts have provided increased attention and focus on this species.
This in turn has led to greater protection for the species such that
the recovery criteria in the Recovery Plan for this species are
expected to be entirely met in the next year, prior to finalizing this
proposed rule. After conducting a review of the species' status, we
have determined that the species is not in danger of extinction
throughout all or a significant portion of its range, nor is it likely
to become in danger of extinction within the foreseeable future
throughout all or a significant portion of its range. Given the
expanded range, number of newly discovered population locations and
individuals, the increased knowledge of the genetics of this species,
and the protection offered by State and Federal landowners, we
[[Page 17633]]
conclude, based on the best scientific and commercial information, that
H. eggertii does not warrant the protection of the Act. Therefore, we
propose to remove H. eggertii from the List of Endangered and
Threatened Plants.
Prudency Determination
Because of the current status of the species throughout its range
and the number of sites that are located on Federal, State, and private
conservation areas, we are proposing to remove Helianthus eggertii from
the List of Endangered and Threatened Wildlife and Plants under the
Endangered Species Act. We believe that the threatened designation no
longer correctly reflects the current status of this plant. We have not
yet made a final determination on the delisting proposal. Therefore,
the species remains listed, and the Act requires us to designate
critical habitat for the species, if designation would be prudent. The
facts and analysis described in the proposed rule above, however, are
highly relevant to the question of what areas may constitute critical
habitat for the species. In order to be included in a critical habitat
designation, the habitat must first be ``essential to the conservation
of the species.'' Under the Act, ``conservation'' is a technical term,
defined as the use of all methods and procedures that are necessary to
bring an endangered or threatened species to the point at which listing
under the Act is no longer necessary. In the case of H. eggertii, no
methods or procedures are required to bring the species to the point
where listing is no longer necessary to the conservation of the
species. Recovery actions have secured a number of populations and
identified additional populations not previously known. The species is
more widespread and abundant than was documented at the time of
listing. The species habitat also does not require any ``special
management considerations or protection'' because we believe the
species habitat is being appropriately managed and protected by State,
Federal, and county land managers. The species is more resilient and
less vulnerable to certain activities than previously thought, and is
now protected on Federal, State, and county lands. The large increase
in new sites, increased understanding of the plant's adaptability, and
the protection and management provided by State and Federal landowners
have led us to conclude that habitat destruction is no longer
considered a threat to the species. Moreover, because of the
significant protections afforded by the 27 populations of H. eggertii
occurring on public lands, we believe that the protection provided by
existing regulations are adequate to maintain habitat of sufficient
quantity and quality to ensure viable populations and meet recovery
goals listed in the recovery plan. Thus, there are no areas that
constitute critical habitat for the species. If there is no critical
habitat to be designated, designation would not be beneficial to the
species. Designation of critical habitat is, therefore, not prudent.
Effect of This Rule
This rule, if made final, would revise 50 CFR 17.12(h) to remove
Helianthus eggertii from the List of Endangered and Threatened Plants.
Because no critical habitat was ever designated for this species, this
rule would not affect 50 CFR 17.96.
If this species is removed from the List of Endangered and
Threatened Plants, Endangered Species Act protection would no longer
apply. Removal of Helianthus eggertii from the List of Endangered and
Threatened Plants would relieve Federal agencies from the need to
consult with us to insure that any action they authorize, fund, or
carry out is not likely to jeopardize the continued existence of this
species.
The 1988 amendments to the Act require that all species that have
been delisted due to recovery efforts be monitored for at least five
years following delisting. The Federal, State, and private conservation
group landowners involved in recovery activities for this species are
already monitoring the status of this species, either through existing
agreements or voluntarily. The Kentucky Transportation Cabinet has
signed a management agreement with us, covering one population in
Kentucky, to protect this species and monitor its status for a period
of seven years. We have draft agreements with the TWRA and the Arnold
Air Force Base, covering 16 populations in Tennessee. These landowners
will protect these populations and monitor their status for a period of
10 years. We anticipate that these agreements will be finalized before
this proposed delisting rule would become final, within one year.
Furthermore, we will be working with the Federal and State landowners
and TNC to develop a post-delisting monitoring plan. This plan will be
drafted, released for comment, and finalized on schedule with the final
delisting.
Peer Review
Under our 1994 peer review policy (59 FR 34270), we will solicit
the expert opinions of three appropriate and independent specialists
regarding pertinent scientific or commercial data and assumptions
relating to the taxonomy, population structure, and supportive
biological and ecological information on this proposed rule. The
purpose of such review is to ensure that we base listing decisions on
scientifically sound data, assumptions, and analysis. To that end, we
will send copies of this proposed rule to these peer reviewers
immediately following publication in the Federal Register.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). This rule will not
impose recordkeeping or reporting requirements on State or local
governments, individuals, businesses, or organizations. An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act
We have determined that we do not need to prepare an Environmental
Assessment, as defined by the National Environmental Policy Act of
1969, in connection with regulations adopted pursuant to section 4(a)
of 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).
Clarity of Regulations
Executive Order 12866 requires each agency to write regulations
that are easy to understand. We invite your comments on how to make
this rule easier to understand, including answers to questions such as
the following--(1) Are the requirements in the rule clearly stated? (2)
Does the rule contain technical language or jargon that interferes with
its clarity? (3) Does the format of the rule (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce its
clarity? (4) Would the rule be easier to understand if it were divided
into more (but shorter) sections? (5) Is the description of the rule in
the SUPPLEMENTARY INFORMATION section of the preamble helpful in
understanding the interim rule? What else could we do to make the rule
easier to understand?
Send a copy of any comments about how we could make this rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior,
[[Page 17634]]
Room 7229, 1849 C Street NW., Washington, DC 20240. You also may email
comments [email protected].
References Cited
Alabama Natural Heritage Database. 2003. Alabama Natural Heritage
Program, Montgomery, Alabama.
Cruzan, M. B. 2002. Population and Ecological Genetics of Helianthus
eggertii Report. Prepared for Arnold Engineering Development Center
at Arnold Air Force Base.
Jones, R. L. 1991. Status report on Helianthus eggertii. Prepared
for the U.S. Fish and Wildlife Service, Asheville Field Office,
through the Kentucky State Nature Preserves Commission.
Kentucky Natural Heritage Database. 2003. Kentucky State Nature
Preserves Commission, Frankfort, Kentucky.
Spring, O., and E. E. Schilling. 1991. The sesquiterpene lactone
chemistry of Helianthus Sect. Atrorubentes (Asteraceae:
Heliantheae). Biochemical Systematices and Ecology 19:59-79.
Tennessee Natural Heritage Database. 2003. Tennessee Department of
Environment and Conservation, Division of Natural Heritage,
Nashville, Tennessee.
U.S. Air Force. 2002. Barrens Management Plan for Arnold Air Force
Base. Tullahoma, Tennessee. 63 pp.
U.S. Air Force. 2001. Eggert's Sunflower (Helianthus eggertii)
Management Plan for Arnold Air Force Base. Tullahoma, Tennessee. 47
pp.
U.S. Fish and Wildlife Service. 1999a. Recovery Plan for Helianthus
eggertii Small (Eggert's sunflower). Atlanta, Georgia. 40 pp.
U.S. Fish and Wildlife Service. 1999b. Endangered and Threatened
Wildlife and Plants 50 CFR 17.11 and 17.12; As of December 31, 1999.
Special Reprint. U.S. Government Printing Office. P. 56.
Author
The primary author of this proposed rule is Timothy Merritt (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
For the reasons given in the preamble, we propose to amend part 17,
subchapter B of chapter I, title 50 of the Code of Federal Regulations,
as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
Sec. 17.12--[Amended]
2. Amend Sec. 17.12(h) by removing the entry ``Helianthus
eggertii'' under ``FLOWERING PLANTS'' from the List of Endangered and
Threatened Wildlife and Plants.
Dated: March 30, 2004.
Matt Hogan,
Acting Director, Fish and Wildlife Service.
[FR Doc. 04-7547 Filed 4-2-04; 8:45 am]
BILLING CODE 4310-55-P