[Federal Register: April 5, 2004 (Volume 69, Number 65)]
[Proposed Rules]               
[Page 17627-17634]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



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.


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 
    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 

FOR FURTHER INFORMATION CONTACT: Timothy Merritt at the above address 
(telephone 931/528-6481, extension 211; facsimile 931/528-7075).


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 
    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).


    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 

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. 

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 
    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 
    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 

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 to--Exsec@ios.doi.gov.

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 
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.


    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:


    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]