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application of OCATDs for compliance DEPARTMENT OF THE INTERIOR distributed across 2 counties in certification is premature. Without Alabama, 9 counties in Kentucky, and reasonably standardized pressure Fish and Wildlife Service 15 counties in . Consequently, measuring technology, the consistency H. eggertii is not likely to become of the OCATDs’ performance can not be 50 CFR Part 17 endangered within the foreseeable properly evaluated. RIN 1018–AJ08 future throughout all or a significant portion of its range and, therefore, is no The agency has made provisions in Endangered and Threatened Wildlife longer considered to be threatened. If the advanced air bag rulemaking to and ; Proposed Removal of made final, this rule would remove H. allow introduction of new technologies eggertii (Eggert’s eggertii from the list of threatened and for suppression and the development of Sunflower) From the Federal List of endangered species. low level deployment activation Endangered and Threatened Species In response to a court order, we have systems. However, agency review of the and Determination That Designation of also reconsidered whether designating proposed OCATD technology, based on Critical Habitat Is Not Prudent critical habitat for Helianthus eggertii the Alliance report, indicates that the would be prudent based on this species’ AGENCY: Fish and Wildlife Service, OCATDs mostly parallel the capabilities current status. We have determined that Interior. of currently specified Hybrid-III test such a designation would not be dummies for measuring seating ACTION: Proposed rule and notice of prudent because, as set out in detail pressures and do not provide additional finding. elsewhere in this proposal, we believe occupant sensing and discrimination SUMMARY: We, the U.S. Fish and the species no longer warrants listing capabilities. The data in the UMTRI Wildlife Service (Service), propose to under the Act. There is accordingly no technical report indicate that there is remove the Helianthus eggertii area which meets the definition of very little potential to develop the (Eggert’s sunflower) from the List of critical habitat. OCATDs into better or more powerful Endangered and Threatened Wildlife DATES: We will consider comments on discriminatory tools without substantial and Plants pursuant to the Endangered this proposed delisting if they are further research. Therefore, it would not Species Act of 1973, as amended (Act), received by June 4, 2004. Public hearing be cost beneficial for the agency to because recovery actions have secured a requests must be received by May 20, initiate the extensive and expensive number of populations and identified 2004. additional populations not previously process incorporating the OCATDs into ADDRESSES: If you wish to comment on part 572 merely to have them available known. Therefore, the threatened this proposed delisting, you may submit as parallel surrogates to the Hybrid-III designation no longer correctly reflects your comments by any one of several dummies. However, the agency does not the current status of this plant. This methods: discourage use of the OCATDs by those action is based on a review of all 1. You may submit written comments vehicle manufacturers who are available data, which indicates that the and information to the Field Supervisor, convinced that OCATDs will provide species is more widespread and U.S. Fish and Wildlife Service, 446 Neal them the needed flexibilities for the abundant than was documented at the Street, Cookeville, TN 38501. time of listing, is more resilient and less development of better functioning 2. You may hand-deliver written vulnerable to certain activities than suppression systems. comments to our Tennessee Field Office previously thought, and is now at the above address or fax your In conclusion, NHTSA denies both protected on Federal, State, and county comments to 931/528–7075. parts of this petition for rulemaking lands. Due to the recent development of Comments and materials received will based on lack of compelling evidence a management plan for H. eggertii, a be available for public inspection, by that adoption of the OCATDs into part management plan for the barrens/ appointment, during normal business 572 and their specification in FMVSS woodland ecosystem, and an Integrated hours at the above address. No. 208 would improve the suppression Natural Resources Management Plan at and activation/deactivation of air bag the U.S. Air Force’s Arnold Engineering FOR FURTHER INFORMATION CONTACT: systems and the safety of the motoring and Development Center, on whose land Timothy Merritt at the above address public. Furthermore, the agency has no a significant number of sites/ (telephone 931/528–6481, extension plans to conduct research on design and populations occur, new management 211; facsimile 931/528–7075). performance of the OCATDs with the practices will include managing for, and SUPPLEMENTARY INFORMATION: monitoring the areas that contain, this intent purpose either to incorporate Public Comments Solicited them into part 572 or to specify their species. Occurrences of H. eggertii are use for deployment suppression also found on six other Federal, State, We intend that any final action certification tests in FMVSS No. 208. or county lands, three of which now resulting from this proposed delisting have conservation agreements with us to will be as accurate and as effective as Authority: 49 U.S.C. 30162; delegations of protect, manage, and monitor the possible. Therefore, we solicit authority at 49 CFR 1.50 and 49 CFR 501.8 species. comments or suggestions from the Issued on: March 30, 2004. At the time of listing, there were 34 public, other concerned governmental Claude H. Harris, known Helianthus eggertii sites agencies, the scientific community, occurring in 1 county in Alabama, 5 industry, or any other interested parties Director, Office of Crash Avoidance counties in Kentucky, and 8 counties in concerning this proposed delisting. We Standards. Tennessee. The species was not defined particularly seek comments concerning: [FR Doc. 04–7546 Filed 4–2–04; 8:45 am] in terms of ‘‘populations’’ at that time. (1) Biological, commercial trade, or BILLING CODE 4910–59–P Increased knowledge of H. eggertii and other relevant data concerning any its habitat has resulted in increased threat (or lack thereof) to Helianthus success in locating new plant sites. eggertii; Presently, there are 279 known H. (2) Additional information concerning eggertii sites (making up 68 populations) the range, distribution, location of any

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additional populations, and population round stems arising from fleshy has been established by morphological size of this species; and rhizomes (lateral storage stems that studies (USFWS 1999a) and (3) Current or planned activities in the grow along or just below the soil’s biochemical studies (Spring and in species’ habitat and these activities’ surface). The stems and upper leaf Schilling 1991), it probably outcrosses possible impacts on this species. surfaces have a blue-waxy coloration, (breeds with less closely related Comments may be submitted as and that and the lower leaf surfaces are individuals) with other hexaploid indicated under ADDRESSES. Our conspicuously whitened (Jones 1991). It sunflowers (Jones 1991). It is not known practice is to make comments, including has opposite (rarely whorled) leaves that how commonly outcrossing occurs and names and home addresses of are sessile (without a stalk), lanceolate to what degree this can eventually respondents, available for public review (lance-shaped) to narrowly ovate (egg- degrade the genetic integrity of the during regular business hours. A shaped) in shape, and are either species. (pale- respondent may request that we scabrous (rough) or glabrous (smooth) leaved woodland sunflower), withhold their home address from the on the upper surface. Leaf edges are occasionally found in association with rulemaking record, which we will honor smooth or minutely toothed and the tip H. eggertii, has been identified as a to the extent allowable by law. There is usually pointed. Large yellow flowers sunflower with a compatible ploidy also may be circumstances in which we 8 centimeters (3 inches) in diameter are (number of sets of chromosomes) level would withhold from the rulemaking borne on the upper third of the stem. (Jones 1991). record a respondent’s identity, as Seeds are blackish or grayish and Helianthus eggertii typically occurs allowable by law. If you wish us to mottled, 5 to 6 millimeters (0.20 to 0.24 on rolling-to-flat uplands and in full sun withhold your name and/or address, inch) long, faintly striated (striped), and or partial shade. It is often found in you must state this prominently at the with a few scattered hairs. Flowering open fields or in thickets along beginning of your comment. However, begins in early August and continues woodland borders and with other tall we will not consider anonymous through mid-September and achenes herbs and small trees. It persists in, and comments. We will make all (small, dry, hard, one-celled, one-seeded may even invade, roadsides, power line submissions from organizations or fruit that stays closed at maturity) rights-of-way, or fields that have businesses available for public mature from early September to early suitable open habitat. The distribution inspection in their entirety. October (Jones 1991). Jones (1991) of this species shows a strong In making a final decision on this observed fruit set at between 5 and 25 correlation with the barrens (and similar proposed delisting, we will take into seeds per flower head. Originally, seed habitats) of the Interior Low Plateau consideration the comments and any germination rates were thought to be Physiographic Province, with some additional information we receive. Such low (rarely exceeding 25 percent), records from the Cumberland Plateau communications may lead to a final possibly requiring exposure to cold to Section of the Appalachian Plateau regulation that differs from this break dormancy (USFWS 1999a). Physiographic Province. proposed rule. Comments and materials However, recent data suggest that seed When Helianthus eggertii was listed received, as well as supporting germination rates are relatively high as threatened in 1997, it was known information used to write this rule, will (around 65 percent) if the seeds go from only 1 site in one county in be available for public inspection, by through a stratification process (a period Alabama, 13 sites in 5 counties in appointment, during normal business of cold weather, moisture, and darkness Kentucky, and 20 sites in 8 counties in hours at the address indicated in the needed to break dormancy) (Cruzan Tennessee. While the species was not ADDRESSES section. 2002). defined in terms of ‘‘populations’’ at that The Act provides for a public hearing This sunflower develops an extensive time, the Alabama site was described as on this proposed delisting, if requested. rhizome system that may result in the vigorous, while most sites in Kentucky Requests must be received within 45 production of dense clusters or patches contained less than 15 stems, with 4 days of the date of publication of this of stems. These rhizomes can live for sites having 5 or fewer stems, and about proposal. Such requests must be made many years. Because of this extensive 50 percent of the Tennessee sites in writing and addressed to the Field rhizome system, the plant does not have contained fewer than 20 stems (62 FR Supervisor, U.S. Fish and Wildlife to produce seeds every year to ensure its 27973, May 22, 1997). When the Service, Tennessee Field Office (see survival. If environmental conditions recovery plan for this species was ADDRESSES section). change (e.g., increased competition, finalized in 1999, there was 1 known shading, etc.), it can survive for several site in Alabama, 27 sites in 6 counties Background years by vegetative means, as Jones in Kentucky, and 203 sites in 12 Helianthus eggertii (Eggert’s (1991) has noted in several populations. counties in Tennessee. sunflower) is a perennial member of the Plants may also be established from The term ‘‘population,’’ as it relates to aster family () known only seeds within these patches, so a mix of Helianthus eggertii, was first defined in from Alabama, Kentucky, and different individuals can eventually the Recovery Plan as ‘‘a group of plants Tennessee. Although it was originally contribute to these extensive patches that is isolated by geographic described in 1897, most collections have (Jones 1991). Cruzan (2002) concluded discontinuity or a distance of one-half been made since 1990, when extensive that the level of genetic diversity in this mile’’ (USFWS 1999a). Recent studies searches for the species began (Jones species appears to be relatively high and on H. eggertii genetics by Cruzan (2002) 1991, USFWS 1999a). The species is that the highest levels of genetic suggested that a population of fewer commonly associated with the barrens/ diversity occur in the southern portion than 100 flowering stems is unlikely to woodland ecosystem, a complex of of the species’ range. Cruzan (2002) also be sufficiently large enough to maintain generally subxeric (somewhat dry) plant concluded that the range of Helianthus genetic diversity. Cruzan (2002) also communities maintained by drought eggertii is not geographically subdivided estimated a reasonable fragmentation and fire with a grassy ground cover and into distinct genetic units. threshold of 1 kilometer (km) (0.6 mile); scattered medium-to-small-canopy trees Helianthus eggertii is a hexaploid that is, sites within that distance of each (USFWS 1999a). (composed of cells that have six other were close enough to exchange Helianthus eggertii is a tall plant, chromosome sets) sunflower, and, genetic material. The further use of the growing up to 2.5 meters (8 feet), with although its distinctiveness as a species term ‘‘population’’ in this document

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indicates a site, or sites, that endangered or threatened might be populations (distributed throughout the cumulatively have more than 100 appropriate, or for which substantial species’ range or as determined by flowering plants and that do not occur data on biological vulnerability and genetic uniqueness) must be provided more than 1 km apart. Based on 2003 threats were not known at the time or through management agreements or data from the Alabama, Kentucky, and were not on file to support the listing. conservation easements on public land Tennessee Natural Heritage Programs It was subsequently retained as a or land owned by private conservation and the Service, there are 3 known sites category 2 species when the Notice of groups and (2) these populations must in 2 counties in north Alabama, 33 sites Review for Native Plants was revised in be under a management regime in 9 counties in central Kentucky, and 1983 (48 FR 53640), 1985 (50 FR 39526), designed to maintain or improve the 243 sites in 15 counties in middle and 1990 (55 FR 6184). habitat and each population must be Tennessee (Alabama Natural Heritage All plant taxa included in the stable or increasing for 5 years. There Database 2003; Kentucky Natural comprehensive plant notices are treated are presently 27 populations that are Heritage Database 2003; Tennessee as if under a petition. Section 4(b)(3)(B) under a management regime that Natural Heritage Database 2003; USFWS of the Act, as amended in 1982, requires benefits the species and that occur on unpublished data). Applying the the Secretary to make certain findings public land or land owned by a private definition above to the current situation on pending petitions within 12 months conservation group (i.e., The Nature for this species, Alabama has 3 of their receipt. Section 2(b)(1) of the Conservancy (TNC)). These are populations, Kentucky has 18 1982 amendments further requires that geographically distinct (separated by populations, and Tennessee has 47 all petitions pending as of October 13, more than 1 km (0.62 miles)), and self- populations; 27 of these 68 populations 1982, be treated as having been newly sustaining (greater than 100 flowering occur on public lands. Furthermore, the submitted on that date. This was the stems). These populations are scattered total of 279 currently known sites of case for H. eggertii because of the throughout the species’ historic range. Helianthus eggertii far exceeds the 34 acceptance of the 1975 Smithsonian We have 5 years of monitoring data on sites known at the time the species was report as a petition. In 1983, we found each of the 27 populations that show listed. that the petition calling for the listing of they are stable or increasing. We have H. eggertii was not warranted because of Previous Federal Actions finalized cooperative management insufficient data on its distribution, agreements with Kentucky Federal actions on this species began vulnerability, and degrees of threat. We Transportation Cabinet (one in 1973, when the Act was first passed. funded a survey in 1989 to determine population), Tennessee Wildlife Section 12 of the Act directed the the status of H. eggertii in Alabama, Resources Agency (seven populations), Secretary of the Smithsonian Institution Kentucky, and Tennessee. In 1990, the and Mammoth Cave National Park to prepare a report on those plants Service had not yet received the results (three populations) for the long-term considered to be endangered, of the survey we had funded and it was protection of H. eggertii. We are in the threatened, or extinct. This report, believed that additional surveys of process of finalizing cooperative designated as House Document No. potential habitat and further management agreements that will 9451, was presented to Congress on identification of threats were needed protect the remaining populations that January 9, 1975. On July 1, 1975, we before a decision could be made on occur on public lands and TNC published a notice in the Federal whether to propose listing the species. property. We expect to have these Register (40 FR 27823) that formally In 1991, we accepted a final report on agreements in place before this rule is accepted the Smithsonian report as a these surveys (Jones 1991). Information finalized. These cooperative petition within the context of section contained in the 1991 final report management agreements will remain in 4(c)(2) (now section 4(b)(3)) of the Act). completed informational gaps and By accepting this report as a petition, provided what was then thought to be place even if the species is delisted. we also acknowledged our intention to sufficient data to warrant preparation of Federal involvement with Helianthus review the status of those plant taxa a proposed rule to list the species. eggertii subsequent to listing has named within the report. H. eggertii was Helianthus eggertii was accepted as a included funding for recovery activities included in the Smithsonian report and category 1 species on August 30, 1993, such as surveys for new locations, also in the July 1, 1975, Notice of and was included in the revised Notice monitoring of known populations, Review (40 FR 27823). On June 16, of Review for Native Plants published population and ecological genetics 1976, we published a notice in the on September 30, 1993 (58 FR 51144). studies, and collection and analysis of Federal Register (41 FR 24523) that On September 9, 1994 (59 FR 46607), ecological and biological data. We have determined approximately 1,700 we published a proposal to list H. also been involved with the taxa, including H. eggertii as a threatened species in the development of the Eggert’s Sunflower eggertii, to be endangered pursuant to Federal Register. A final rule placing H. Management Plan, Barrens Management section 4 of the Act. eggertii on the Federal List of Plan, and the Integrated Natural The 1978 amendments to the Act Endangered and Threatened Plants as a Resources Management Plan for Arnold required that all proposals that were not threatened species was published on Air Force Base in Tennessee. All of finalized within two years be May 22, 1997 (62 FR 27973). That these plans address H. eggertii and its withdrawn. On December 10, 1979 (44 decision included a determination that habitat (see discussion under Factor A). FR 70796), we published a notice the designation of critical habitat was Recently we have signed an agreement withdrawing all plant species proposed not prudent for H. eggertii. with the Kentucky Transportation in the June 16, 1976, rule. The revised The final Recovery Plan for Cabinet to protect and manage a H. Notice of Review for Native Plants Helianthus eggertii (Recovery Plan) was eggertii site in Hart County, Kentucky. published on December 15, 1980 (45 FR completed in December 1999. The We have evaluated potential impacts to 82480), included Helianthus eggertii as Recovery Plan provides the following this species from 248 Federal actions. a category 2 species. Category 2 species criteria to consider H. eggertii for The majority of these actions are were described as those taxa for which delisting—(1) the long-term highway and pipeline projects. We have the Service had information indicating conservation/protection of 20 conducted two formal consultations; that proposing to list them as geographically distinct, self-sustaining one resulted in a ‘‘no effect’’ to the

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species finding and the other a ‘‘not destruction of habitat for commercial of new sites. In fact, since listing, an likely to jeopardize the continued and residential development, intensive additional 245 sites have been found existence’’ of the species finding. No rights-of-way maintenance, and that contain the species (Alabama plants were adversely affected by either conversion of barrens habitat to Natural Heritage Database 2003; project. croplands, pasture, or development, Kentucky Natural Heritage Database On October 12, 2000, the Southern appear to have changed very little since 2003; Tennessee Natural Heritage Appalachian Biodiversity Project filed listing. However, the risk those threats Database 2003; USFWS unpublished suit against us, challenging our pose for Helianthus eggertii’s survival data 2003). The species is also more determination that designation of and conservation are considerably less widespread than originally thought, critical habitat for Helianthus eggertii than what was understood at the time of occurring in 2 counties in Alabama, 9 was not prudent (Southern Appalachian listing. H. eggertii appears to respond counties in Kentucky, and 15 counties Biodiversity Project v. United States favorably to disturbance. One site that in Tennessee. The number of stems has Fish and Wildlife Service, Norton & occurs in Coffee County, Tennessee, was also increased dramatically from the Williams (CN 2:00–CV–361 (E.D. TN)). known to have hundreds of stems in time of listing. In Alabama, the one site On November 8, 2001, the District Court 1998 before the site was clearcut. In known at the time of listing was of the Eastern District of Tennessee 2000, Tennessee Department of described as vigorous; presently, there issued an order directing us to Environment and Conservation (TDEC) are three sites and all three have more reconsider our previous prudency found that there were very few plants than 100 stems (Alabama Natural determination and submit a new left and it was thought that the logging Heritage Database 2003). In Kentucky, prudency determination for H. eggertii had resulted in the destruction of the most of the 13 original sites at the time no later than December 29, 2003. On plants at this site. However, in 2003, we of listing contained fewer than 15 stems January 8, 2004, the court extended the found that the site had 1,578 total stems, and 4 sites had fewer than 5 stems. submission date to not later than March including 951 flowering stems. Logging Presently in Kentucky, there are 33 30, 2004. Accordingly, we are including had only a temporary negative effect known sites; 13 of these sites have more a new prudency determination in this and the resulting land disturbance than 100 stems, and are now considered proposal to delist H. eggertii. resulted in greatly increasing the size viable populations (Kentucky Natural Summary of Factors Affecting the and vigor of the plants at this site Heritage Database 2003). In Tennessee, Species (USFWS, unpublished data 2003). This about one-half of the 20 original sites at same event has occurred on the Arnold the time of listing contained fewer than Section 4(a)(1) of the Act and the Air Force Base in Coffee County. Pine 20 stems. Currently in Tennessee, there regulations (50 CFR part 424) issued to stands that had few to no H. eggertii had are 243 known sites, 63 of which have implement the listing provisions of the Act set forth five criteria to be used in been clearcut, followed by either the more than 100 stems and are now determining whether to add, reclassify, new appearance of H. eggertii or a considered viable populations or remove a species from the Federal significant increase in size and vigor of (Tennessee Natural Heritage Database List of Endangered and Threatened existing plants (K. Fitch, pers. comm. 2003; USFWS unpublished data 2003). Wildlife and Plants. These five factors 2003). Many of the known H. eggertii Of the 279 sites where Helianthus and their application to Helianthus sites occur along road and power line eggertii is known to occur in Alabama, eggertii are as follows: rights-of-way. This is probably due to Kentucky, and Tennessee, 126 (which A. The present or threatened the disturbance of these areas from make up 27 total populations) are in destruction, modification, or continual maintenance activities. While public ownership or on land owned by curtailment of its habitat or range. In plants will not grow and flower well in TNC and are being managed to protect 1997, when Helianthus eggertii was very deep shade (i.e., 80 percent), the the species. Protection for the species listed as threatened, most of the 34 moderate levels of shade (from 40 to 60 will continue on these sites even if it is known sites of this species were thought percent) where H. eggertii normally delisted. Arnold Engineering and to be threatened with destruction or occurs do not appear to have large Development Center (AEDC), operated modification of their habitat. It was negative consequences for its growth or by the U.S. Air Force, has 115 of these estimated that over 50 percent of the reproduction (Cruzan 2002). Cruzan sites (11 populations) and is the largest known sites were threatened by the (2002) also found that H. eggertii Federal landowner harboring this encroachment of more competitive competes well against other more species. H. eggertii is covered by AEDC’s herbaceous vegetation and/or woody widespread species under full sunlight Integrated Natural Resources plants that produce shade and compete and 60 percent shade conditions, a fact Management Plan (INRMP), a Barrens with this species for limited water and that was not known at the time of Management Plan (BMP), and a separate nutrients. Active management was listing. Eggert’s Sunflower Management Plan listed as a requirement to ensure the At the time of listing, we did not fully (ESMP). The INRMP, BMP, and ESMP plant’s continued survival at all sites. understand that Helianthus eggertii are active management plans that Since most of the sites where this could readily adapt to utilizing provide for the long-term conservation species survives are not natural barrens, manmade disturbances to replace the of this species by focusing on restoring but areas such as rights-of-way or dwindling natural barrens. We barrens habitat and maintaining the similar habitats that mimic barrens, originally thought the species was necessary ecological processes in direct destruction of this habitat for restricted to these natural barren areas. habitats the species requires. These commercial, residential, or industrial When H. eggertii was listed, manmade processes include various silvicultural development or intensive rights-of-way areas were thought to be low-quality treatments (e.g., clearcuts, marked maintenance (e.g., herbicide use) was sites where the species was making a thinning, and row thinning), prescribed thought to be a significant threat to the last ditch effort to survive. Upon burning, and invasive pest plant known sites at the time of listing. discovering that manmade sites were a management (e.g., manual removal and Overall, the activities affecting the significant habitat H. eggertii was herbicide spot application). Regardless species’ habitat, such as encroachment exploiting and in which it was thriving, of the Federal status of H. eggertii, the of more competitive vegetation, direct we began finding a significant number BMP, ESMP, and INRMP will continue

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to provide for the protection and vegetation and keeping the areas open. The large increase in new Helianthus management of this species (U.S. Air The Tennessee Wildlife Resources eggertii sites (245) since listing, the Force (USAF) 2001, USAF 2002). In Agency (TWRA), which owns four increased understanding of the plant’s Kentucky, Mammoth Cave National wildlife management areas that contain adaptability, and the protection and Park (MCNP) has three populations and seven H. eggertii populations, is management provided by State and there is one population on U.S. Army managing these areas for small game, Federal landowners have led us to Corps of Engineers property at Nolin which indirectly benefits this species by conclude that the threats to H. eggertii’s Lake. MCNP is actively managing H. keeping the area in early successional habitat have been adequately addressed eggertii populations and has vegetation. We have drafted a and habitat destruction is no longer implemented a prescribed burning management agreement with TWRA that considered to be a threat to the species. regime to provide for the long-term would provide for the protection of this B. Overutilization for commercial, protection of this species. We have species on its lands for an initial period recreational, scientific, or educational recently signed a Cooperative of 10 years. This agreement is in the purposes. We have no documented Management Agreement with MCNP to process of being signed and, like the evidence, records, or information to provide long-term protection of the Federal agreements, will involve habitat indicate that overutilization for three H. eggertii populations occurring management activities such as commercial, recreational, scientific, or on Park property. These populations prescribed burns, tree thinning, and educational purposes is a threat to and the barrens habitats on which they invasive plant removal, and monitoring Helianthus eggertii. We have found no occur will be sustained by the plants and their habitat to ensure the records of unauthorized collection implementing habitat management protection and management of these during our literature review or in activities, such as prescribed burns, tree sites regardless of the Federal status of discussions with researchers. This thinning, and invasive plant removal, H. eggertii. Similarly, we have drafted a species is not believed to be a and monitoring the plants and their management agreement with the City of significant component of the habitat. We also have draft Cooperative Nashville, Metro Parks and Recreation, commercial trade in native plants, and Management Agreements being which owns and operates Beaman Park overutilization does not constitute a reviewed by AEDC and the U.S. Army in Davidson County, Tennessee. threat for this species. Corps of Engineers. We believe that Beaman Park contains two populations C. Disease or predation. Disease has these agreements will be signed before of H. eggertii. This park is new and been observed by the Service and other this proposed rule is finalized, within a plans are being developed for future observers on small numbers of year. These agreements, like the MCNP uses such as hiking trails, picnic areas, Helianthus eggertii plants (T. Gulya, agreement, will provide for the long- park headquarters, and maintenance pers comm. 2004). This disease is believed to be a rust fungi of either the term protection of H. eggertii buildings. We are working with Metro Puccinia or Coleosporium genus (T. populations by implementing the above- Parks to ensure that the existing H. Gulya, pers comm. 2004). This rust listed habitat management activities. eggertii populations are protected. The attacks the vegetation and leaves orange- These agreements will aid in sustaining draft agreement will be signed before to-brown pustules (raised bumps or these populations on these Federal this proposed rule is finalized (within areas) on the surfaces. It does not appear lands regardless of the Federal status of one year), and will include the above- to kill the plants, and we do not believe this species. listed habitat management activities. Helianthus eggertii is an early that it is a threat to the species’ successional stage species and, while TNC in Kentucky owns a site known existence. Predation from insects and historic barrens habitat is becoming as Baumberger Barrens, which contains herbivores has also been noted on small increasingly rare, this species readily one population of Helianthus eggertii. isolated patches of H. eggertii. These responds to barrens restoration activities TNC has an existing management plan incidents appear to result from normal as well as colonizing manmade for the barrens that includes H. eggertii. environmental conditions. Because of disturbed areas. The key to long-term The site is undergoing management, the ability of this plant to sprout stems survival of H. eggertii is periodic such as removal of woody species, from rhizomes, the small amount of burning, mowing, or thinning of the periodic prescribed burns, and invasive predation observed does not pose a competing vegetation. Kentucky plant removal, to ensure the native threat to this species. Transportation Cabinet has signed a barrens species, including H. eggertii, D. The inadequacy of existing management agreement with us to are maintained and protected. It is our regulatory mechanisms. The Act does maintain, enhance, and monitor H. understanding that this site will be not provide protection for plants on eggertii on its property (41 acres, one protected in perpetuity by TNC of private property unless the landowner’s population) which includes restoring Kentucky for the people of Kentucky. activity is federally funded or requires barrens habitat by thinning the existing TNC of Kentucky and the State of Federal approval. In all three States trees near H. eggertii occurrences, Kentucky each own 50 percent in a site (Alabama, Kentucky, and Tennessee), conducting periodic prescribed burns, known as Eastview Barrens. One plants have no direct protection under and monitoring the success of these population of Helianthus eggertii occurs State law on private property. Plants on management practices to refine them if at the Eastview Barrens. These two private property are afforded ancillary necessary. The management agreement landowners are working together to protection under State criminal trespass is in effect until 2010 delete previous manage the barrens on this site by laws. If this proposed delisting rule is place. removing woody species, conducting finalized, the only change to the The Alabama and Tennessee State periodic prescribed burns, and protection of Helianthus eggertii on Departments of Transportation are preventing and removing invasive private land would be that we would no working with us to develop and plants to ensure the native barrens longer consult under section 7 of the maintain roadside mowing regimes that species, including H. eggertii, are Act for the activities that are federally would benefit existing Helianthus maintained and protected. This site will funded or require Federal approval. eggertii sites. This will also encourage be protected in perpetuity by TNC of However, there are enough populations new establishment of plants along road Kentucky and the State of Kentucky for of H. eggertii on public lands (27 rights-of-way by reducing the competing the people of Kentucky. populations) to afford the long-term

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conservation of this species based on 1–14–.14) that protects all vegetation on their distribution are sufficient to the recovery criteria (20 populations) in designated wildlife management areas protect against potential catastrophic the Recovery Plan. The recovery criteria from take regardless of its State or events (e.g., drought) and no longer called for the 20 populations to be Federal status. There are 10 known consider such events to be a threat to distributed throughout the species’ populations of H. eggertii that occur on this species. There are no other natural historical range and, based on the State-owned public lands in Tennessee; or manmade factors known to affect the number and distribution of populations 5 of these populations occur on 4 continued existence of H. eggertii; known at that time, determined that the different State wildlife management therefore, we do not believe these relative proportions would be one areas managed by the TWRA. On public factors will affect the continued population in Alabama, three lands in Alabama and Kentucky, every existence of this species. populations in Kentucky, and 16 natural component is considered public Summary of Findings populations in Tennessee. Although domain and is, therefore, protected from none of the three populations in take under State law. Alabama has one According to 50 CFR 424.11(d), a Alabama are currently under a population and Kentucky has three species may be delisted if the best management plan, we believe that the populations of H. eggertii that occur on scientific and commercial data available current distribution of populations State-owned public lands. These State substantiate that the species is neither under such plans meets the intent of the laws will remain in effect regardless of endangered nor threatened because of recovery criteria because they are whether this species remains federally (1) extinction, (2) recovery, or (3) error ‘‘distributed throughout the species’’ listed or not. in the original data for classification of historical range,’’ including populations The ESA protects plants on private the species. The ‘‘error in the original that occurred near the Tennessee/ lands only if the actions which might data’’ category for delisting a species has Alabama border. adversely impacted them are conducted, been further subdivided by the Service Section 9(a)(2)(B) of the Act prohibits permitted or funded by a Federal to more specifically identify the ‘‘error’’ removal and possession of endangered agency, or constitute criminal trespass as follows—(1) better data (foreign, plants from areas under Federal or theft of the plants. The limited scientific, or commercial information), jurisdiction. Kentucky has 4 protection afforded by the Act under (2) scientific (taxonomic) revision of the populations and Tennessee has 11 these circumstances would be lost listing basis (subsequent to listing), (3) populations that occur on Federal lands. through delisting, and other existing amendment to the Act (the scope of None of the three populations in regulations did not provide complete listing under section 4), and (4) Alabama occurs on Federal lands. protection to all existing habitat on additional discoveries of previously Helianthus eggertii sites on MCNP in private lands. However, we believe the unknown populations and/or habitats Kentucky are also protected from take significant protections afforded to the 27 (USFWS 1999b). by Code of Federal Regulations, Title 36, populations occurring on public lands We have carefully assessed the best Volume 1, which protects all plants on are adequate to ensure those scientific and commercial information Department of Interior lands. We have a populations of H. eggertii remain viable, available regarding the past, present, cooperative management agreement and such populations by themselves and future threats faced by Helianthus with the Mammoth Cave National Park meet or exceed the recovery goals listed eggertii. Based on 2001, 2002, and 2003 and we anticipate having signed in the recovery plan. surveys, we conclude that the agreements with the remaining Federal E. Other natural or manmade factors threatened designation no longer landowners before this rule is finalized, affecting its continued existence. correctly reflects the current status of within one year. These agreements Extended drought conditions and an this plant. Relative to the information would protect Helianthus eggertii and increase in the potential for inbreeding available at the time of listing, recovery its habitat for a period of 10 years, depression due to dwindling numbers actions have resulted in new regardless of the Federal status of the were thought to affect the continued information that shows a significant (1) species. Both the plant and its habitat existence of H. eggertii at the time of expansion in the species’ known range, would be protected, managed, and listing. The known sites of H. eggertii (2) increase in the number of known monitored under these agreements. have now increased in number to 279 sites, and (3) increase in the number of On public lands in Tennessee and (68 populations) and are scattered individual plants. Furthermore, Kentucky, on which 27 populations throughout 26 counties in three States. recovery efforts have provided increased (composed of 126 of the 279 known This makes the likelihood of a drought attention and focus on this species. This sites, and including the 15 populations adversely affecting all the known sites in turn has led to greater protection for on Federal lands just discussed) of the much less than originally thought, when the species such that the recovery plants are found, Helianthus eggertii is there were only 34 known sites. Also, criteria in the Recovery Plan for this adequately protected by other laws. Air there are three populations in Alabama, species are expected to be entirely met Force Instruction 32–7064 at 7.1.1 18 populations in Kentucky, and 47 in the next year, prior to finalizing this provides the same protection for populations in Tennessee, for a total of proposed rule. After conducting a candidate and State listed species as for 68 populations, that have more than 100 review of the species’ status, we have federally listed species ‘‘when practical’’ flowering stems. The Recovery Plan determined that the species is not in on AEDC. It is our understanding that criterion requires only 20 populations to danger of extinction throughout all or a the State of Tennessee has no plans to be considered for delisting. Cruzan significant portion of its range, nor is it delist H. eggertii in the immediate (2002) suggested that 100 flowering likely to become in danger of extinction future. In addition, as mentioned stems or more were needed to maintain within the foreseeable future throughout previously, H. eggertii is covered under genetic diversity and prevent inbreeding all or a significant portion of its range. 3 management plans covering AEDC depression within a population. Given the expanded range, number of (INRMP, Barrens Management Plan and Inbreeding depression due to low newly discovered population locations Eggert’s Sunflower Management Plan), numbers of individuals per population and individuals, the increased all of which will continue for some is no longer a threat to H. eggertii. We knowledge of the genetics of this years regardless of whether the species believe the known number of sites, the species, and the protection offered by is delisted. The TWRA has a rule (1660– numbers of existing populations, and State and Federal landowners, we

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conclude, based on the best scientific on public lands, we believe that the opinions of three appropriate and and commercial information, that H. protection provided by existing independent specialists regarding eggertii does not warrant the protection regulations are adequate to maintain pertinent scientific or commercial data of the Act. Therefore, we propose to habitat of sufficient quantity and quality and assumptions relating to the remove H. eggertii from the List of to ensure viable populations and meet , population structure, and Endangered and Threatened Plants. recovery goals listed in the recovery supportive biological and ecological plan. Thus, there are no areas that information on this proposed rule. The Prudency Determination constitute critical habitat for the species. purpose of such review is to ensure that Because of the current status of the If there is no critical habitat to be we base listing decisions on species throughout its range and the designated, designation would not be scientifically sound data, assumptions, number of sites that are located on beneficial to the species. Designation of and analysis. To that end, we will send Federal, State, and private conservation critical habitat is, therefore, not prudent. copies of this proposed rule to these areas, we are proposing to remove peer reviewers immediately following Effect of This Rule Helianthus eggertii from the List of publication in the Federal Register. Endangered and Threatened Wildlife This rule, if made final, would revise and Plants under the Endangered 50 CFR 17.12(h) to remove Helianthus Paperwork Reduction Act of 1995 Species Act. We believe that the eggertii from the List of Endangered and This rule does not contain any new threatened designation no longer Threatened Plants. Because no critical collections of information that require correctly reflects the current status of habitat was ever designated for this approval by the Office of Management this plant. We have not yet made a final species, this rule would not affect 50 and Budget (OMB) under the Paperwork determination on the delisting proposal. CFR 17.96. Reduction Act (44 U.S.C. 3501 et seq.). Therefore, the species remains listed, If this species is removed from the This rule will not impose recordkeeping and the Act requires us to designate List of Endangered and Threatened or reporting requirements on State or critical habitat for the species, if Plants, Endangered Species Act local governments, individuals, designation would be prudent. The facts protection would no longer apply. businesses, or organizations. An agency and analysis described in the proposed Removal of Helianthus eggertii from the may not conduct or sponsor, and a rule above, however, are highly relevant List of Endangered and Threatened person is not required to respond to, a to the question of what areas may Plants would relieve Federal agencies collection of information unless it constitute critical habitat for the species. from the need to consult with us to displays a currently valid OMB control In order to be included in a critical insure that any action they authorize, number. habitat designation, the habitat must fund, or carry out is not likely to first be ‘‘essential to the conservation of jeopardize the continued existence of National Environmental Policy Act the species.’’ Under the Act, this species. We have determined that we do not ‘‘conservation’’ is a technical term, The 1988 amendments to the Act need to prepare an Environmental defined as the use of all methods and require that all species that have been Assessment, as defined by the National procedures that are necessary to bring delisted due to recovery efforts be Environmental Policy Act of 1969, in an endangered or threatened species to monitored for at least five years connection with regulations adopted the point at which listing under the Act following delisting. The Federal, State, pursuant to section 4(a) of the is no longer necessary. In the case of H. and private conservation group Endangered Species Act. We published eggertii, no methods or procedures are landowners involved in recovery a notice outlining our reasons for this required to bring the species to the point activities for this species are already determination in the Federal Register where listing is no longer necessary to monitoring the status of this species, on October 25, 1983 (48 FR 49244). the conservation of the species. either through existing agreements or Recovery actions have secured a number voluntarily. The Kentucky Clarity of Regulations of populations and identified additional Transportation Cabinet has signed a Executive Order 12866 requires each populations not previously known. The management agreement with us, agency to write regulations that are easy species is more widespread and covering one population in Kentucky, to to understand. We invite your abundant than was documented at the protect this species and monitor its comments on how to make this rule time of listing. The species habitat also status for a period of seven years. We easier to understand, including answers does not require any ‘‘special have draft agreements with the TWRA to questions such as the following—(1) management considerations or and the Arnold Air Force Base, covering Are the requirements in the rule clearly protection’’ because we believe the 16 populations in Tennessee. These stated? (2) Does the rule contain species habitat is being appropriately landowners will protect these technical language or jargon that managed and protected by State, populations and monitor their status for interferes with its clarity? (3) Does the Federal, and county land managers. The a period of 10 years. We anticipate that format of the rule (grouping and order species is more resilient and less these agreements will be finalized of sections, use of headings, vulnerable to certain activities than before this proposed delisting rule paragraphing, etc.) aid or reduce its previously thought, and is now would become final, within one year. clarity? (4) Would the rule be easier to protected on Federal, State, and county Furthermore, we will be working with understand if it were divided into more lands. The large increase in new sites, the Federal and State landowners and (but shorter) sections? (5) Is the increased understanding of the plant’s TNC to develop a post-delisting description of the rule in the adaptability, and the protection and monitoring plan. This plan will be SUPPLEMENTARY INFORMATION section of management provided by State and drafted, released for comment, and the preamble helpful in understanding Federal landowners have led us to finalized on schedule with the final the interim rule? What else could we do conclude that habitat destruction is no delisting. to make the rule easier to understand? longer considered a threat to the Send a copy of any comments about species. Moreover, because of the Peer Review how we could make this rule easier to significant protections afforded by the Under our 1994 peer review policy understand to: Office of Regulatory 27 populations of H. eggertii occurring (59 FR 34270), we will solicit the expert Affairs, Department of the Interior,

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Room 7229, 1849 C Street NW., § 17.12—[Amended] 3. You may also send comments by Washington, DC 20240. You also may electronic mail (e-mail) to: email comments to—[email protected]. 2. Amend § 17.12(h) by removing the [email protected]. For entry ‘‘Helianthus eggertii’’ under directions on how to submit electronic References Cited ‘‘FLOWERING PLANTS’’ from the List filing of comments, see the ‘‘Public Alabama Natural Heritage Database. 2003. of Endangered and Threatened Wildlife Comments Solicited’’ section. In the Alabama Natural Heritage Program, and Plants. event that our internet connection is not Montgomery, Alabama. Dated: March 30, 2004. functional, please submit you comments Cruzan, M. B. 2002. Population and Matt Hogan, by the alternate methods mentioned Ecological Genetics of Helianthus eggertii above. Report. Prepared for Arnold Engineering Acting Director, Fish and Wildlife Service. Development Center at Arnold Air Force [FR Doc. 04–7547 Filed 4–2–04; 8:45 am] FOR FURTHER INFORMATION CONTACT: John Base. BILLING CODE 4310–55–P Young, at the address above (telephone Jones, R. L. 1991. Status report on Helianthus 503/231–6194; facsimile 503/231–6243). eggertii. Prepared for the U.S. Fish and SUPPLEMENTARY INFORMATION: Wildlife Service, Asheville Field Office, DEPARTMENT OF THE INTERIOR through the Kentucky State Nature Public Comments Solicited Preserves Commission. Fish and Wildlife Service Kentucky Natural Heritage Database. 2003. We will accept written comments and information during this reopened Kentucky State Nature Preserves 50 CFR Part 17 Commission, Frankfort, Kentucky. comment period. We solicit comments Spring, O., and E. E. Schilling. 1991. The RIN 1018–AI52 on the original proposed critical habitat sesquiterpene lactone chemistry of designation (November 29, 2002, 67 FR Helianthus Sect. Atrorubentes (Asteraceae: Endangered and Threatened Wildlife 71235) and on our draft economic Heliantheae). Biochemical Systematices and Plants; Proposed Designation of analysis of the proposed designation. and Ecology 19:59–79. Critical Habitat for the Klamath River We are particularly interested in Tennessee Natural Heritage Database. 2003. and Columbia River Populations of Tennessee Department of Environment and comments concerning: Conservation, Division of Natural Heritage, Bull Trout (Salvelinus confluentus) (1) The reasons why any habitat should or should not be determined to Nashville, Tennessee. AGENCY: Fish and Wildlife Service, be critical habitat as provided by section U.S. Air Force. 2002. Barrens Management Interior. Plan for Arnold Air Force Base. Tullahoma, 4 of the Act, including whether the Tennessee. 63 pp. ACTION: Proposed rule; reopening of benefits of excluding any particular area U.S. Air Force. 2001. Eggert’s Sunflower comment period and notice of as critical habitat outweigh the benefits (Helianthus eggertii) Management Plan for availability of draft economic analysis. of specifying such area as part of the Arnold Air Force Base. Tullahoma, critical habitat; Tennessee. 47 pp. SUMMARY: We, the U.S. Fish and U.S. Fish and Wildlife Service. 1999a. Wildlife Service, announce the (2) Specific information on the Recovery Plan for Helianthus eggertii reopening of the public comment period amount and distribution of bull trout Small (Eggert’s sunflower). Atlanta, on the proposal to designate critical and its habitat, and which habitat is Georgia. 40 pp. habitat for the Klamath River and essential to the conservation of this U.S. Fish and Wildlife Service. 1999b. Columbia River populations of bull species and why; Endangered and Threatened Wildlife and (3) Land use designations and current Plants 50 CFR 17.11 and 17.12; As of trout (Salvelinus confluentus), and the availability of the draft economic or planned activities in the subject areas December 31, 1999. Special Reprint. U.S. and their possible impacts on proposed Government Printing Office. P. 56. analysis of the proposed designation of critical habitat. We are reopening the critical habitat; Author comment period to allow all interested (4) Any foreseeable economic or other impacts resulting from the proposed The primary author of this proposed parties to comment simultaneously on the proposed rule and the associated designation of critical habitat, in rule is Timothy Merritt (see ADDRESSES particular, any impacts on small entities section). draft economic analysis. Comments previously submitted need not be or families beyond those identified in List of Subjects in 50 CFR Part 17 resubmitted as they will be incorporated section 4.3 (Potential Impacts on Small into the public record as part of this Entities); Endangered and threatened species, comment period, and will be fully (5) How our approach to critical Exports, Imports, Reporting and considered in preparation of the final habitat designation could be improved recordkeeping requirements, rule. or modified to provide for greater public Transportation. participation and understanding, or to DATES: We will accept public comments assist us in accommodating public Proposed Regulation Promulgation until May 5, 2004. concern and comments; For the reasons given in the preamble, ADDRESSES: Written comments and (6) Whether the economic analysis we propose to amend part 17, materials may be submitted to us by any identifies all State and local costs. If not, subchapter B of chapter I, title 50 of the one of the following methods: what other costs are overlooked; Code of Federal Regulations, as set forth 1. You may submit written comments (7) Whether the economic analysis below: and information to John Young, Bull makes appropriate assumptions Trout Coordinator, U.S. Fish and regarding current practices and likely PART 17—[AMENDED] Wildlife Service, Ecological Services, regulatory changes imposed as a result 911 NE 11th Avenue, Portland, OR of the designation of critical habitat; 1. The authority citation for part 17 97232; (8) Whether the economic analysis continues to read as follows: 2. You may hand-deliver written appropriately identifies all costs that Authority: 16 U.S.C. 1361–1407; 16 U.S.C. comments and information to our office, could result from the designation; 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– at the above address, or fax your (9) Whether the economic analysis 625, 100 Stat. 3500; unless otherwise noted. comments to 503/231–6243; or correctly assesses the effect on regional

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