Endangered and Threatened Wildlife and Plants; Reclassifying Smooth Coneflower as Threatened With Section 4(d) Rule, 33159-33176 [2021-12951]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 86, Number 119 (Thursday, June 24, 2021)]
[Proposed Rules]
[Pages 33159-33176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-12951]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2020-0063; FF09E22000 FXES1113090FEDR 212]
RIN 1018-BD83


Endangered and Threatened Wildlife and Plants; Reclassifying 
Smooth Coneflower as Threatened With Section 4(d) Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
reclassify from endangered to threatened (``downlist'') the smooth 
coneflower (Echinacea laevigata) under the Endangered Species Act of 
1973, as amended (Act) due to improvements in the species' overall 
status since the original listing in 1992. This proposed action is 
based on a thorough review of the best available scientific and 
commercial information, which indicates that the species' status has 
improved such that it is not currently in danger of extinction 
throughout all or a significant portion of its range, but that it is 
still likely to become so in the foreseeable future. This proposed rule 
completes the 5-year status review for the species, initiated on March 
12, 2018. If this proposal is finalized, smooth coneflower would be 
reclassified as a threatened species under the Act. We seek 
information, data, and comments from the public on this proposal. We 
also propose to establish a rule under section 4(d) of the Act for the 
protection of smooth coneflower.

DATES: We will accept comments received or postmarked on or August 23, 
2021. Comments submitted electronically using the Federal eRulemaking 
Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern 
Time on the closing date. We must receive requests for public hearings 
in writing, at the address shown in FOR FURTHER INFORMATION CONTACT, by 
August 9, 2021.

ADDRESSES: You may submit comments on this proposed rule by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter the Docket Number for 
this proposed rule, which is FWS-R4-ES-2020-0063. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, check the Proposed 
Rule box to locate this document. You may submit a comment by clicking 
on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R4-ES-2020-0063, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
to us (see Information Requested, below, for more information).
    Document availability: This proposed rule and supporting documents 
(including the Recovery Plan) are available at https://www.regulations.gov under Docket No. FWS-R4-ES-2020-0063.

FOR FURTHER INFORMATION CONTACT: Pete Benjamin, Field Supervisor, U.S. 
Fish and Wildlife Service, Raleigh Ecological Services Field Office, 
551-F Pylon Drive, Raleigh, NC 27606; telephone (919) 856-4520. 
Individuals who use a telecommunications device for the deaf (TDD) may 
call the Federal Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species may warrant 
reclassification from endangered to threatened if it no longer meets 
the definition of endangered (in danger of extinction). The smooth 
coneflower is listed as endangered, and we are proposing to reclassify 
the smooth coneflower as threatened (i.e., ``downlist'' the species) 
because we have determined it is not currently in danger of extinction. 
Downlisting a species as a threatened species can only be made by 
issuing a rulemaking.
    What this document does. This rule proposes to reclassify the 
smooth coneflower from endangered to threatened on the Federal List of 
Endangered and Threatened Plants (List), with a rule issued under 
section 4(d) of the Act to ensure the continued conservation of this 
species. This rule

[[Page 33160]]

also serves to complete the 5-year review for the smooth coneflower.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered species or a threatened species because of any 
of five factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. This five-factor analysis applies 
whether we are proposing to newly list a species as endangered or 
threatened, change its classification, or remove the species from 
listing. We may reclassify a species if the best available commercial 
and scientific data indicate the species no longer meets the applicable 
definition in the Act. We have determined that the smooth coneflower is 
no longer in danger of extinction and, therefore, does not meet the 
Act's definition of an endangered species, but the species does meet 
the Act's definition of a threatened species because it is still 
affected by current and ongoing habitat loss, degradation, and 
fragmentation from development. Existing management and regulatory 
mechanisms are not sufficient to protect the species from these threats 
such that it is not in danger of extinction the foreseeable future.
    We are proposing to promulgate a section 4(d) rule. We propose to 
prohibit the activities identified under section 9(a)(2) of the Act for 
endangered species as a means to provide protections to the smooth 
coneflower. We also propose specific exceptions from these prohibitions 
for our State agency partners, so that they may continue with certain 
activities covered by an approved cooperative agreement to carry out 
conservation programs that will facilitate the conservation and 
recovery of the species.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or other 
interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) Reasons we should or should not reclassify the smooth 
coneflower as a threatened species, and if we should consider delisting 
the species.
    (2) New information on the historical and current status, range, 
distribution, and population size of the smooth coneflower.
    (3) New information on the known and potential threats to the 
smooth coneflower, including fire management, regulatory mechanisms, 
and any new management actions that have been implemented, and whether 
management would continue should the species be delisted.
    (4) New information regarding the life history, ecology, and 
habitat use of the smooth coneflower.
    (5) Current or planned activities within the geographic range of 
the smooth coneflower that may have adverse or beneficial impacts on 
the species.
    (6) Information on regulations that are necessary and advisable to 
provide for the conservation of the smooth coneflower and that the 
Service can consider in developing a 4(d) rule for the species.
    (7) Information concerning the extent to which we should include 
any of the section 9 prohibitions in the 4(d) rule or whether any other 
forms of take should be excepted from the prohibitions in the 4(d) 
rule.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 
1531 et seq.) directs that a determination as to whether any species is 
an endangered or threatened species must be made ``solely on the basis 
of the best scientific and commercial data available.''
    Because we will consider all comments and information we receive 
during the comment period, our final determinations may differ from 
this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that the smooth 
coneflower should remain listed as endangered instead of being 
reclassified as a threatened, or we may conclude that the species no 
longer warrants listing as either an endangered species or a threatened 
species. In addition, we may change the parameters of any prohibitions 
or conservation measures if we conclude it is appropriate in light of 
comments and new information received. For example, we may expand the 
incidental take prohibitions to include activities that this proposed 
rule would allow if we conclude that such additional activities are 
likely to cause direct injury or mortality to the species. Conversely, 
we may establish additional exceptions to the incidental take 
prohibitions so as to allow activities that this proposed rule would 
prohibit if we conclude that such activities would not cause direct 
injury or mortality to the species and will facilitate the conservation 
and recovery of the species.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register at least 15 days before the hearing. For the immediate 
future, we will provide these public hearings using webinars that will 
be announced on the Service's website, in addition to an announcement 
in the Federal Register. The use of these virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Peer Review

    In accordance with our policy, ``Notice of Interagency Cooperative 
Policy for Peer Review in Endangered Species Act Activities,'' which 
published on July 1, 1994 (59 FR

[[Page 33161]]

34270), and our August 22, 2016, Director's Memorandum, ``Peer Review 
Process'' (Service 2016), which updates and clarifies the July 1, 1994 
policy, we will seek the expert opinion of at least three appropriate 
and independent specialists regarding scientific data and 
interpretations contained in this proposed rule. The purpose of such 
review is to ensure that our decisions are based on scientifically 
sound data, assumptions, and analysis. We will send peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will ensure that the opinions of peer reviewers 
are objective and unbiased by following the guidelines set forth in the 
Director's Memorandum. We will invite these peer reviewers to comment 
during the public comment period on both the proposed reclassification 
of smooth coneflower and the proposed 4(d) rule. We will summarize the 
opinions of these reviewers in the final decision documents, and we 
will consider the comments and information we receive from peer 
reviewers during the public comment period on this proposed rule, as we 
prepare a final rule.

Previous Federal Actions

    On October 8, 1992, we published in the Federal Register (57 FR 
46340) a final rule listing smooth coneflower as an endangered species. 
The final rule identified the following threats to smooth coneflower: 
Extirpation due to the absence of natural disturbance (fire and/or 
grazing), highway construction and improvement, gas line installation, 
residential and industrial development, collecting (for horticulture 
and pharmaceutical industries), herbicide use on highway and utility 
rights-of-way, encroachment of exotic species, and suspected beetle 
damage. On April 18, 1995, we published the recovery plan for this 
plant (Service 1995, entire).
    On August 2, 2011, we completed a 5-year review for the smooth 
coneflower (Service 2011, entire). In that review, we recommended that 
we should downlist the species to threatened because a substantial 
number of new occurrences of the species have been located since 
completion of the recovery plan. The 2011 review is a supplemental 
document to this proposed rule and is provided at https://www.regulations.gov under Docket No. FWS-R4-ES-2020-0063.
    On March 12, 2018, we initiated another 5-year review (83 FR 
10737). This proposed rule completes that review.
    For additional details on previous Federal actions, see discussion 
under Recovery, below. Also see https://www.fws.gov/endangered/species/us-species.html for the species profile for this plant.

Acronyms and Abbreviations Used in This Proposed Rule

DOD = Department of Defense
EO = element occurrence
GADNR = Georgia Department of Natural Resources
GPCA = Georgia Plant Conservation Alliance
MOU = memorandum of understanding
NCBG = North Carolina Botanical Garden
NCDACS = North Carolina Department of Agriculture and Consumer 
Services
NCDOT = North Carolina Department of Transportation
NCNHP = North Carolina Natural Heritage Program
NCPCP = North Carolina Plant Conservation Program
ROW = right-of-way
SCDNR = South Carolina Department of Natural Resources
SCDOT = South Carolina Department of Transportation
SCHTP = South Carolina Heritage Trust Program
TNC = The Nature Conservancy
USACE = U.S. Army Corps of Engineers
USDA = U.S. Department of Agriculture
USDOE = U.S. Department of Energy
USFS = U.S. Forest Service, U.S. Department of Agriculture
USGS = U.S. Geological Survey
VADCR = Virginia Department of Conservation and Recreation
VADNH = Virginia Division of Natural Heritage

I. Proposed Reclassification Determination

Background

Species Information

    A thorough review of the taxonomy, life history, ecology, and 
overall viability of smooth coneflower is presented in the recovery 
plan (Service 1995, entire) and the 5-year review (Service 2011, 
entire). Below, we present a summary of the biological and 
distributional information discussed in those documents and new 
information published or obtained through coordination with species 
experts and data synthesis since then.

Taxonomy and Species Description

    Smooth coneflower is a perennial herb in the aster family 
(Asteraceae). It was first described as Brauneria laevigata by Boynton 
and Beadle in 1903, from material collected in South Carolina (SC) in 
1888. It was transferred to the genus Echinacea in 1929 (Small 1933, p. 
1421; McGregor 1968, p. 120). Smooth coneflower grows up to 1.5 meters 
(59 inches (in)) tall from a vertical root stock; stems are smooth, 
with few leaves. Large basal leaves, which reach 15 centimeters (cm) 
(5.9 in) in length and 8 cm (3.2 in) in width, have long petioles. They 
are elliptical to broadly lanceolate, taper to the base, and are smooth 
to slightly rough. The midstem leaves are smaller than the basal 
leaves. Flower heads are usually solitary and are composed of ray 
flowers and disk flowers. The ray flowers (petal-like structures on 
composite flower heads) are light pink to purplish, strongly drooping, 
and 5 to 8 cm (1.9 to 3.1 in) long. Disk flowers (tiny tubular flowers 
in the central portion of composite flower head) are about 5 
millimeters (mm) (0.2 in) long; have tubular purple corollas; and have 
mostly erect, short triangular teeth (McGregor 1968, p. 129; Radford et 
al. 1968, p. 1110; Kral 1983, p. 1135; Gaddy 1991, p. 4; Gleason and 
Cronquist 1991, p. 532; Weakley 2015, p. 1114).

Reproductive Biology

    Flowering occurs from May through July, and fruits develop from 
late June to September (Gaddy 1991, p. 18). Sexual reproduction results 
in a gray-brown, oblong-prismatic achene (dry, one-seeded fruit), 
usually four-angled, and 4 to 5 mm (0.16 to 0.20 in) long (Kral 1983, 
p. 1135; Gaddy 1991, p. 4). Asexual reproduction in the form of short 
clonal rhizomes make new rosettes in both garden and wild settings 
(Kunz 2018, pers. comm.). Pollinators for smooth coneflower include 
various species of butterflies, wasps, and bees (Collins and Fore 2009, 
pp. 452-454). The smooth coneflower is dependent on insect pollinators 
for cross pollination; bees are the most effective pollinators, while 
skippers and butterflies are frequent nectar foragers (Gadd 2006, p. 
15).
    Based on observations of the closely related Tennessee purple 
coneflower (Echinacea tennesseensis), seeds are probably dispersed by 
seed-eating birds or mammals such as goldfinches (Spinus tristis) and 
white-tailed deer (Odocoileus virginianus) (Service 1989, p. 9). Smooth 
coneflower seeds only appear to germinate on bare soil (Gadd 2006, p. 
20). Walker (2009, p. 12) failed to recover any smooth coneflower seeds 
from the soil seed bank (natural storage of seeds in the soil) at three 
North Carolina (NC) sites; however, he was able to recover smooth 
coneflower seeds in both spring and fall leaf litter samples. While the 
recovery plan mentions that reproductive success is generally poor in 
this species (Service 1995, p. 5), Gadd (2006, p. 17) found that smooth 
coneflower plants at three NC sites are not pollinator-limited and even 
short visits by pollinators result in seed set. Recent augmentation/

[[Page 33162]]

reintroduction projects have been successful in Georgia (GA), NC, and 
SC using nursery-grown plants (Alley 2018, pers. comm; Mackie, USFS 
2018, pers. comm.; Kunz 2018, pers. comm.).

Distribution and Abundance

    In this proposed rule, we follow guidance for defining EOs and 
populations described by NatureServe (2002, pp. 10-11; NatureServe 
2004, pp. 6, 14). We define an EO as any current (or historical) 
location where smooth coneflower occurs (or occurred), regardless of 
the spatial relationship with other EOs. We define a population as 
either a stand-alone EO isolated by distance of unsuitable habitat 
(separated from other EOs by 2 kilometers (km) (1.2 miles (mi)) or 
more), or as a principal EO. A principal EO is two or more EOs located 
less than or equal to 2 km (1.2 mi) from each other, with suitable 
habitat in between them. For the purposes of evaluating the recovery of 
this species, it is most appropriate to consider populations rather 
than individual EOs.
    At the time of listing in 1992, this plant had 21 extant 
populations (57 FR 46340; October 8, 1992). When the recovery plan was 
written in 1995, there were 24 known populations rangewide, with an 
additional 3 populations in SC that were considered of cultivated 
origin at that time but are now believed to be natural populations, for 
a total of 27 populations (Service 1995, p. 2). Several new smooth 
coneflower occurrences have been discovered since the time of listing, 
including 15 in GA, 11 in NC, 28 in SC, and 10 in Virginia (VA) (GADNR 
2019, unpaginated; NCNHP 2019, unpaginated; SCHTP 2019, unpaginated; 
VADNH 2018, unpaginated; White 2018, p. 6).
    Current State Natural Heritage Program database records document 44 
extant populations of smooth coneflower (Table 1).

  Table 1--Total Number of Extant Populations of Smooth Coneflower That
           Occur in Each State Within the Range of the Species
     [GADNR 2019, unpaginated; NCNHP 2019, unpaginated; SCHTP 2019,
        unpaginated; VADNH 2018, unpaginated; White 2018, entire]
------------------------------------------------------------------------
                                                        Number of extant
                        State                             populations
------------------------------------------------------------------------
Virginia (VA)........................................                 15
North Carolina (NC)..................................                  6
South Carolina (SC)..................................                 12
Georgia (GA).........................................                 11
                                                      ------------------
    Totals...........................................                 44
------------------------------------------------------------------------

    A single collection of this species from Maryland may represent a 
waif (a plant outside of its natural range) (Reveal and Broome 1982, p. 
194). One herbarium specimen from Lancaster County, Pennsylvania (PA), 
is on file at the Missouri Botanical Garden. No additional collections 
have been made from PA. The PA Natural Heritage Program considers this 
species to be extirpated in the State (Kunsman 2018, pers. comm.).

Range and Habitat

    At the time of listing in 1992, all of the known smooth coneflower 
populations occurred in the piedmont or mountain physiographic 
provinces of GA, SC, NC, and VA. Since listing, new populations have 
been found in the inner coastal plain/sandhills region of SC (White 
2018, p. 4) and the coastal plain of GA (Moffet 2018, pers. comm.).
    Smooth coneflower is typically found in open woods, glades, cedar 
barrens, roadsides, clear cuts, dry limestone bluffs, and power line 
ROWs. The species is usually found on magnesium- and calcium-rich soils 
associated with amphibolite, dolomite, or limestone (in VA); gabbro (in 
NC and VA); diabase (in NC and SC); marble, sandy loams, chert, and 
amphibolites (in SC and GA); and shallow soils with minor bedrock 
exposures (in GA) (Service 1995, pp. 2-3; White 2018, p. 4; GADNR 2019, 
unpaginated). The healthiest smooth coneflower populations are managed 
with prescribed fire or mechanical thinning, which provides the smooth 
coneflower plants abundant sunlight and little competition from other 
plant species (Gaddy 1991, p. 1).

Population Structure

    Land managers and biologists have routinely monitored smooth 
coneflower populations since before the species was listed in 1992. 
Monitoring at most populations usually involves a flowering stem count, 
while each rosette of leaves is counted at some sites. Flowering stem 
counts are generally the most common survey method because they require 
less time and biologists generally agree that plants produce no more 
than one flowering stem per growing season, making this method a 
conservative count of how many plants actually exist at a site. Basal 
rosettes and plants in vegetative state (non-flowering) can be very 
hard to find and count in dense herbaceous vegetation (NCPCP 2018, 
unpaginated; White 2018, entire).
    The species displays a relatively high level of genetic diversity 
based on analyses across the range of populations (Peters et al. 2009, 
pp. 12-13). There is also significant population genetic 
differentiation and a majority of the genetic variance is attributed to 
variation within populations, suggesting that populations may be 
adapting to local environments (Apsit and Dixon 2001, entire). Because 
this genetic variation exists, all populations should be maintained to 
conserve genetic diversity since each population contains only a subset 
of the total genetic variation. Regional population differentiation may 
be important in the selection of material to establish new populations, 
which suggests that, for greatest success, reintroduction projects use 
local source material (Apsit and Dixon 2001, p. 76).

Recovery

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species, unless we determine that such a plan will not 
promote the conservation of the species. Recovery plans must, to the 
maximum extent practicable, include objective, measurable criteria 
which, when met, would result in a determination, in accordance with 
the provisions of section 4 of the Act, that the species be removed 
from the List.
    Recovery plans provide a roadmap for us and our partners on methods 
of enhancing conservation and minimizing threats to listed species, as 
well as measurable criteria against which to evaluate progress towards 
recovery and

[[Page 33163]]

assess the species' likely future condition. However, they are not 
regulatory documents and do not substitute for the determinations and 
promulgation of regulations required under section 4(a)(1) of the Act. 
A decision to revise the status of a species, or to delist a species, 
is ultimately based on an analysis of the best scientific and 
commercial data available to determine whether a species is no longer 
an endangered species or a threatened species, regardless of whether 
that information differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all of the criteria in a recovery plan 
being fully met. For example, one or more criteria may be exceeded 
while other criteria may not yet be accomplished. In that instance, we 
may determine that the threats are minimized sufficiently, and that the 
species is robust enough that it no longer meets the definition of an 
endangered species or a threatened species. In other cases, we may 
discover new recovery opportunities after having finalized the recovery 
plan. Parties seeking to conserve the species may use these 
opportunities instead of methods identified in the recovery plan. 
Likewise, we may learn new information about the species after we 
finalize the recovery plan. The new information may change the extent 
to which existing criteria are appropriate for identifying recovery of 
the species. The recovery of a species is a dynamic process requiring 
adaptive management that may, or may not, follow all of the guidance 
provided in a recovery plan.

Recovery Criteria

    The Smooth Coneflower Recovery Plan was approved by the Service on 
April 18, 1995 (Service 1995, entire). It includes recovery criteria 
intended to indicate when threats to the species have been addressed to 
the point the species may no longer meet the definition of endangered 
or threatened and describes actions or tasks necessary to achieve those 
criteria.
    The recovery plan identifies five downlisting criteria for smooth 
coneflower (Service 1995, p. 12):
    1. Twelve (12) geographically distinct, self-sustaining populations 
are protected across the species' range, including populations in at 
least two counties in VA, two counties in NC, two counties in SC, and 
one county in GA;
    2. At least nine of these populations must be in areas within the 
species' native ecosystem (not in gardens or similar artificial 
settings) that are in permanent conservation ownership and management;
    3. Managers have been designated for each protected population;
    4. Management plans have been developed and implemented for each 
protected population; and
    5. Populations have been maintained at stable or increasing levels 
for 5 years.
    The recovery plan also identifies the following five delisting 
criteria for the smooth coneflower (Service 1995, p. 12):
    1. Fifteen (15) geographically distinct, self-sustaining 
populations are protected across the species' range, including 
populations in at least two counties in VA, two counties in NC, two 
counties in SC, and one county in GA;
    2. At least nine of these populations must be in areas within the 
species' native ecosystem (not in gardens or similar artificial 
settings) that are in permanent conservation ownership and management;
    3. Managers have been designated for each protected population;
    4. Management plans have been developed and implemented for each 
protected population; and
    5. Populations have been maintained at stable or increasing levels 
for 10 years.

Downlisting/Delisting Criteria 1 and 2 (Fifteen Protected Self-
Sustaining Populations in Native Ecosystem)

    Not only have both of the downlisting criteria for protected self-
sustaining populations been met, but both delisting criteria as well. 
We currently know of 44 extant populations throughout the species' 
range. Of those 44, 16 populations ranked with excellent to good 
viability are found in areas where the habitat is under protective 
status (like a National Forest). As of 2019, 33 smooth coneflower 
populations are either on Federal lands or are in conservation 
ownership (9 in GA, 5 in NC, 12 in SC, and 7 in VA), 16 of which are 
ranked A (excellent viability), AB (excellent/good viability), or B 
(good viability) by their respective State Natural Heritage Programs (4 
in GA, 3 in NC, 5 in SC, and 4 in VA). These populations are considered 
protected because they occur on several National Forests managed by the 
USFS, as well as lands owned and managed by State agencies, TNC, USACE, 
USDOE, and DOD. Management plans in existence for many of these 
populations are detailed below.
BILLING CODE 4333-15-P

[[Page 33164]]

[GRAPHIC] [TIFF OMITTED] TP24JN21.006

    With regard to the requirement in Criterion 1 that populations be 
self-sustaining, we evaluated the resiliency of each population by 
looking at the ranks as assigned by the State Natural Heritage 
Programs. These 16 protected populations are ranked either A, B, or AB 
(six are ranked A, five are ranked AB, and five are ranked B (see Table 
2, above)). These 16 resilient populations are scattered across the 
range of the species, including one county in GA (Stephens), two 
counties in NC (Durham and Granville), two counties in SC (Barnwell and 
Oconee), and three counties in VA (Franklin, Halifax, and Montgomery). 
These populations span mountain, piedmont, and coastal plain 
physiographic provinces.

[[Page 33165]]

[GRAPHIC] [TIFF OMITTED] TP24JN21.007

BILLING CODE 4333-15-C

  Table 4--Number of Protected Populations With Excellent to Good Viability (A- to B-Ranked) and High to Medium
                                               Resiliency by State
   [GADNR 2019, unpaginated; NCNHP 2019, unpaginated; SCHTP 2019, unpaginated; VADNH, 2018, unpaginated; White
                                                  2018, entire]
----------------------------------------------------------------------------------------------------------------
                                                                                 NatureServe rank
                                                                 -----------------------------------------------
                                                                         A              AB               B
                              State                              -----------------------------------------------
                                                                       High         Medium high       Medium
                                                                    resiliency      resiliency      resiliency
----------------------------------------------------------------------------------------------------------------
VA..............................................................               2               2               0
NC..............................................................               2               0               1
SC..............................................................               2               2               1
GA..............................................................               0               1               3
                                                                 -----------------------------------------------
    Total Populations...........................................               6               5               5
----------------------------------------------------------------------------------------------------------------

    All of these populations occur in the species' natural ecosystem, 
which includes habitats such as open woodlands, glades, cedar barrens, 
and other habitat that is usually (but not always) found on magnesium- 
and calcium-rich soil. For many of the larger A- and B-ranked 
populations, the site ranks have not changed significantly over recent 
years.
    The remaining 28 extant populations are ranked C (fair viability), 
D (poor viability), or E (extant, but their viability has not been 
assessed). A rank of X is given to sites considered to be extirpated, 
where evidence indicates that the species no longer exists in that 
location. A rank of H is given to sites considered to be historical, 
where recent field information verifying the continued existence of the 
population is lacking. We estimated that C-, D-, and E-ranked 
populations have low resiliency, and sites ranked H or X were not 
evaluated for resiliency because plants have not been found at those 
sites in recent years.

Downlisting/Delisting Criterion 3 (Managers Have Been Designated for 
Each Protected Population)

    We verified ownership and management status of each of the 16 
resilient, protected populations on Federal, State, and private 
conservation lands, to ensure that a land manager responsible for 
overseeing the management of smooth coneflower has been assigned. The 
four resilient populations in GA are managed by the USFS 
(Chattahoochee-Oconee National Forest) with assistance from the Atlanta 
Botanical Garden and State Botanical Garden of Georgia. The three 
resilient populations in NC are managed by the NCDACS (Research 
Stations Division), NCPCP, USACE, and NCBG. In SC, most of the 
resilient populations occur on the Sumter National Forest, and four of 
the five resilient populations are managed by the Sumter National 
Forest, with one of those sites being co-owned and managed by SCHTP as 
a Heritage Trust Preserve. The other resilient population, at the 
Savannah River Site, is owned by the USDOE and managed by the USFS. In 
VA, the four resilient populations are managed by the VADNH, USFS 
(George Washington National Forest), and TNC.
    Site managers have been identified for all 16 resilient populations 
identified under Criteria 1 and 2 above; therefore, we consider this 
criterion to have been met.

[[Page 33166]]

Downlisting/Delisting Criterion 4 (Management Plans Implemented)

    Because smooth coneflower requires early to mid-successional 
habitat, all resilient populations have received and will require some 
form of management in perpetuity to help maintain habitat in the right 
balance so that populations can thrive. Management techniques include 
the use of prescribed fire, well-timed mowing, mechanical clearing 
(including the use of chain saws to cut trees), and herbicides 
(selectively applied to cut stumps to prevent regrowth). All of these 
management actions have been implemented separately or in combination 
to sustain suitable habitat for smooth coneflower. Of the 16 resilient 
populations considered in Criteria 1 and 2, 13 of them can be 
considered to be included in management plans. However, these plans 
vary in scope and level of specificity toward smooth coneflower, and 
most plans are outdated. Only six of the plans are specific to the 
management of smooth coneflower, while the others address the overall 
management of an entire site but include some actions that may be 
beneficial to smooth coneflower. Of the six plans that are specific to 
the management of smooth coneflower, four were developed in the mid-
1990s, and two were developed in the early 2000s. In the past 20 years, 
we have learned a lot about how to best manage the species with fire, 
as well as how to manage for invasive species. Many of these management 
practices need to be incorporated into older management plans.
    Management plans exist for three of the four highly resilient 
smooth coneflower populations in VA, although new information about 
fire intervals could improve management of several sites (e.g., VA-A, 
VA-B, and VA-D) (Heffernan et al. 2002, pp. 1-2; SanJule 2007, p. 5; 
USDA Forest Service 2014, entire). In NC, the site of the largest 
smooth coneflower population (NC-B) has been actively managed using 
prescribed fire, mowing, and other mechanical means as recommended by 
species experts (Barnett-Lawrence 1994, pp. 18-20, Appendix 10; 
Barnett-Lawrence 1995, pp. 18-19; NCNHP 1996, unpaginated), but two of 
the highly resilient populations lack management plans altogether. In 
SC, all resilient populations occurring on the Sumter National Forest 
in SC (SC-A, SC-B, SC-C, and SC-D) are managed by prescribed fire and 
mechanical clearing. While the Sumter National Forest Revised Land and 
Resource Management Plan is from 2004, this plan directs the USFS to 
maintain or restore at least eight self-sustaining populations of 
smooth coneflower (USDA Forest Service 2004b, pp. 2-9; Roecker 2001, 
entire), a practice that is in effect today. In GA, the USFS adequately 
uses prescribed fire, mechanical clearing, and herbicide application to 
maintain open, glade-like woodland habitat for smooth coneflower and 
associated species at resilient populations (GA-A, GA-B, GA-C, and GA-
D).
    In summary, 13 of the 16 most resilient (A-, AB-, and B-ranked) 
smooth coneflower populations are included in management plans, but 
only six of them specifically address smooth coneflower management. 
These plans vary in level of detail, scope, and time commitment, and 
several need to be updated with improved fire management and invasive 
species management practices. We find that the implementation of 
regular, dedicated management for the resilient populations is the 
reason these smooth coneflower populations are large, healthy, and 
viable, and contribute toward the recovery of the species. However, the 
Service considers Delisting Criterion 4 for smooth coneflower to have 
been only partially met since not all populations have management 
plans, and several of the existing plans are out of date. The Service 
has developed a template management plan that land managers can use as 
a guide when developing or updating rare species management plans, 
particularly those that focus on smooth coneflower management, and we 
will be working toward getting all plans established and updated as 
part of our ongoing recovery work.

Downlisting/Delisting Criterion 5 (Stable or Increasing Populations for 
5 or 10 Years)

    Land managers conduct site visits to their respective smooth 
coneflower populations on a regular basis to assess population size and 
health and to determine what management actions, if any, are needed. 
Monitoring generally involves a flowering stem count, which is a 
conservative count of how many plants exist at a site (NCPCP 2018, 
unpaginated; White 2018, entire).
    Virginia smooth coneflower populations occur on USFS, TNC, and 
VADCR lands. These sites have been monitored by their respective land 
managers and researchers over the last 30 years. Because several of the 
smooth coneflower preserves in VA are large in size, a complete census 
has not been conducted every year, although the sites have been 
generally monitored during regular management activities. Resilient 
populations VA-A and VA-B have been actively monitored since 2014 
(Collins et al., (2014, entire; Collins and Huish 2018, entire). VA-A 
has been stable since 1977; VA-B has been stable since 1992. The 
remaining two resilient populations have been stable since their 
discovery in 1992-1993.
    Land managers in NC have collected monitoring data on their smooth 
coneflower populations for many years. The NCPCP and NCNHP have 
compiled monitoring records going back to 1988 (NCPCP 2018, 
unpaginated; NCNHP 2019, unpaginated; Barnett-Lawrence 1994, entire; 
Barnett-Lawrence 1995, entire; Lunsford ca 2003). The NCPCP began 
monitoring some of their populations as early as 1988, and then 
initiated a more consistent monitoring program in 2004, or the year in 
which a population was discovered (whichever was later). Smooth 
coneflower plants at NC-B have been monitored since 1989. Sites managed 
by NCBG have been monitored regularly since 2004. Populations managed 
by USACE have been monitored intermittently since 1989, and regularly 
since 2004. In 2018, NCPCP summarized the monitoring data and suggested 
trends for all NC populations as part of their annual section 6 (of the 
Act) report. Of the resilient smooth coneflower populations in Durham 
and Granville Counties, one (NC-A) has been increasing over the 14-year 
monitoring period, and two (NC-B and NC-C) are stable (NC-B) over the 
31-year monitoring period (NCPCP 2018, unpaginated).
    South Carolina sites on the Sumter National Forest and a State-
owned Heritage Preserve have been monitored since 1990 (White 2018, p. 
6, table 1). White (2018, entire) recently conducted a status survey of 
all of the smooth coneflower sites in SC. His final report compiled all 
smooth coneflower monitoring data in SC, and determined that since 
2006, trends indicated that five of the seven Sumter National Forest 
populations are increasing, and one is stable, while the status of one 
population is unknown due to insufficient data. Of the five populations 
that are increasing in size, four are considered to be resilient (SC-A, 
SC-B, SC-C, and SC-D). The first smooth coneflower population at the 
Savannah River Site was discovered in 1988, and populations there have 
been monitored periodically since the mid-1990s. The most recent 
comprehensive monitoring and inventory was conducted in 2015 and 2017 
(Brewer and Prater 2015, p. 4; White 2018, entire). White (2018, p. 11) 
determined that since 2000, two Savannah River Site populations are 
stable (including resilient population

[[Page 33167]]

SC-E), while two populations are possibly declining. To summarize the 
trends for the most resilient SC smooth coneflower populations, four 
appear to be increasing in size, and one is considered stable, for at 
least the past 14 years.
    All four of the most resilient smooth coneflower populations in GA 
occur on the Chattahoochee-Oconee National Forest in northeastern GA. 
Biologists with the USFS, State Botanical Garden of Georgia, Atlanta 
Botanical Garden, GADNR, and GPCA have visited these populations on a 
regular basis since the species was proposed for listing in 1991 and a 
Statewide status survey was conducted in 2000 (Sullivan 2000, entire). 
Monitoring data are intermittent, but the four resilient populations 
have been considered stable for the past 20 years since the Statewide 
status survey (Suiter 2020, pers. comm.).
    Without more detailed data, it is difficult to determine specific 
trends, but based on our analysis of monitoring data and recent 
observations, we conclude that all of the 16 A-, AB-, and B-ranked 
(resilient) protected populations have been stable or increasing for 
more than 10 years; therefore, we consider this recovery criterion to 
have been met.

Summary

    The implementation of recovery actions for smooth coneflower has 
significantly reduced the risk of extinction for the species. As 
indicated above, many smooth coneflower populations are protected on 
public (Federal and State) and private lands, such as TNC preserves in 
VA. The most resilient smooth coneflower populations (i.e., those 
considered contributing to species' recovery) are considered stable or 
increasing. Current information indicates that smooth coneflower is 
more abundant, and its range is somewhat larger, than when the species 
was listed. However, management plans for all protected populations are 
lacking, as only six specifically focus on management for smooth 
coneflower. Many of the existing management plans are out of date, from 
the 1990s and early 2000s, or are not being currently implemented.

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an ``endangered species'' or a ``threatened 
species.'' The Act defines an ``endangered species'' as a species that 
is in danger of extinction throughout all or a significant portion of 
its range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an ``endangered species'' or a 
``threatened species'' because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects. We consider these same five 
factors in reclassifying a species from endangered to threatened (50 
CFR 424.11(c) and (d)). Even though we are not proposing to delist the 
species at this time, we also consider the risk to the species if it 
were not listed under the Act to better understand the species' future 
without the protections of the Act.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species--such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
foreseeable future extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
    When we listed smooth coneflower as an endangered species (57 FR 
46340; October 8, 1992), the identified threats (factors) were the 
absence of natural disturbance (fire and/or grazing), highway 
construction and improvement, gas line installation, and residential 
and industrial development (Factor A); collecting (Factor B); beetle 
damage (Factor C); inadequacy of existing State regulatory mechanisms 
(Factor D); and low genetic variability, herbicide use, and possible 
encroachment of exotic species (Factor E).
    The following analysis evaluates these previously identified 
threats, any other

[[Page 33168]]

threats currently facing the species, and any other threats that are 
reasonably likely to affect the species in the foreseeable future.

Habitat Degradation or Loss Due To Development and Absence of Natural 
Disturbance

    Smooth coneflower plants require open, sunny conditions to survive. 
Without regular disturbance such as fire, woody shrubs and trees create 
a dense canopy that prevents sunlight from reaching the forest floor 
where this herbaceous species occurs. Smooth coneflower is intolerant 
of dense shade and tends to die out after a few years of shady 
conditions.
    Smooth coneflower occurrences on private land are vulnerable to 
habitat loss due to degradation, which results from fire suppression or 
the absence of other disturbances that maintain the habitat in an open 
state. For example, in Rockingham County, NC, a small smooth coneflower 
population occurred on private land in an open woodland between a 
highway and a railroad track. The lack of management or fire resulted 
in the site becoming overgrown, and no plants have been observed there 
in recent years. To encourage smooth coneflower growth, the site needs 
fire or mechanical disturbance in order to remove woody vegetation and 
open the forest floor to sunlight (NCNHP 2019, unpaginated).
    Development projects, such as residential and commercial 
construction and highway and utility construction and maintenance, pose 
a threat to smooth coneflower populations by clearing areas where the 
species occurs, thereby destroying populations. Further, development in 
close proximity to smooth coneflower populations may preclude the 
ability to use fire as a management tool at nearby protected 
populations because of the threat of fires escaping the management area 
and objections to smoke blowing into developed areas. For example, a 
smooth coneflower population on a small parcel of USFS land in 
Habersham County, GA, has declined over recent years due the difficulty 
in managing fire on a parcel surrounded by private property. The lack 
of management has resulted in the growth of woody plants that have 
shaded the smooth coneflower plants and resulted in this population's 
decline (Radcliffe 2019, pers. comm.). As residential and commercial 
development continue to occur in the suburbs of Durham, NC, it will 
become harder to manage some of the adjacent smooth coneflower sites 
with fire (Starke 2019, pers. comm.).
    While we are not aware of any smooth coneflower populations that 
have been destroyed due to residential or commercial development since 
the species was listed, this threat remains a concern. Recently, a new 
subpopulation of smooth coneflower was discovered on a property in 
Durham County, NC, that is slated for development. If a rare plant 
survey had not been conducted and these plants discovered, they would 
have been destroyed by the development of the site (Starke 2019, pers. 
comm.). There are likely additional undiscovered populations of smooth 
coneflower that are subject to destruction.
    Development pressure based on urbanization predictions from the 
SLEUTH urban growth model indicate that all of the NC counties, more 
than half of the SC counties, and both of the northeastern GA counties 
of occurrence for smooth coneflower will exhibit high (greater than 90 
percent) growth trends over the next 20 to 30 years as part of the 
southern megalopolis (Terando et al., 2014, p. 3; Databasin 2014, 
entire). Smooth coneflower populations that occur on private lands in 
these counties will continue to face threats from development and land 
conversion in the foreseeable future. Most of the VA counties of 
occurrence are outside the boundaries of the southern megalopolis and 
the VA urban crescent in the eastern part of the State (Databasin 2014, 
entire).
    Smooth coneflower occurs on roadsides and utility ROWs throughout 
the range of the species. These populations are vulnerable to 
management practices that could negatively impact or destroy them. 
Herbicides, which are typically harmful to all plants, are often used 
to manage vegetation along road shoulders and in utility ROWs. 
Herbicide damage can be temporary or permanent depending on the 
herbicide used and the rate of application. Although dormant season 
(winter) mowing is generally not problematic for disturbance-dependent 
species, as it helps reduce competition and maintain sites in an open 
condition, any mowing that occurs during the growing season but before 
plants produce mature seeds is considered harmful because it arrests 
seed development and reproductive potential for that year. Smooth 
coneflower plants growing on a utility ROW in Granville County, NC, 
were accidentally sprayed with herbicides, killing many plants in this 
population (NCNHP 2019, unpaginated). Herbicide damage to smooth 
coneflowers has also occurred at the Savannah River Site in GA, but the 
population was able to recover (White 2018, Appendix 3, entire). 
Roadside and utility ROW occurrences are difficult to manage in an 
early successional state without harming the smooth coneflower plants. 
For example, woody species encroachment has caused the decline of some 
smooth coneflower sites that occur in ROWs in Durham County, NC. In 
some cases, it is possible to manage lands adjacent to ROW populations 
by, for example, removing woody species to create suitable habitat for 
the species, encouraging the plant to gradually occupy habitat away 
from the ROW; however, adjacent, protected land does not always exist 
(Stark 2019, pers. comm.). In the status survey of smooth coneflower 
populations in SC, White (2019, Appendix 3, entire) indicates that many 
populations still face competition by woody species, the presence of 
invasive species, and road ROW maintenance.
    The protection of some smooth coneflower populations has been 
accomplished through active management and reducing the impacts of 
development. These efforts are critical to the long-term survival of 
this species. Recognizing the importance of long-term management of 
smooth coneflower populations, management plans that incorporate the 
use of prescribed fire and/or mechanized vegetation control have been 
prepared for several populations. The Service is working with many 
landowners that have smooth coneflower populations to complete or 
update management plans for their populations, as most management plans 
were first developed in the 1990s and early 2000s and need to 
incorporate new fire management and invasive species management 
practices. In 2018, we provided land managers with a management plan 
outline to facilitate the completion of thorough management plans. Due 
to greater awareness of the important role of fire in natural systems, 
prescribed fire and mechanical thinning are now regularly used as 
management tools on National Forests, military bases, nature preserves, 
and other protected lands where smooth coneflower occurs. Land managers 
such as the USFS, DOD, USACE, and Savannah River Site, among others, 
use prescribed fire on a 2- to 4-year interval as a management tool to 
control woody vegetation that might otherwise shade this disturbance-
dependent species. For sites that are not managed intentionally for 
smooth coneflower, management practices will likely continue even if 
the species is not listed under the Act, primarily because the active 
management benefits the overall habitat and meets the management 
objectives of

[[Page 33169]]

the landowner. In general, the management benefits the smooth 
coneflower, and without it, the habitat conditions for the smooth 
coneflower would likely degrade and we would need to reassess the 
status of the species under the Act. For the most part, management 
plans for many of the protected populations of smooth coneflower have 
been in place for several years, but we do not know if management 
actions would change for these populations if the species were not 
listed.
    While development pressure on smooth coneflower populations on 
private lands remains, the threat of development for the most resilient 
populations is reduced, as they occur only on protected lands. As 
discussed earlier, many smooth coneflower populations occur on Federal 
lands, such as those owned or managed by the USFS (George Washington 
and Jefferson National Forests in VA, Sumter National Forest in SC, and 
Chattahoochee-Oconee National Forest in GA), USACE (Falls Lake), DOD 
(Fort Stewart and Fort Jackson Army Bases), and USDOE (Savannah River 
Site). These populations are protected on Federal lands from the 
threats of ecological succession or destruction due to development, 
primarily because Federal partners are vested in the protection of the 
species under their management plans. Some smooth coneflower sites 
occur on active military bases with limited public access, such as Fort 
Jackson and Fort Stewart Army Bases, providing further protection of 
these populations. Likewise, the Savannah River Site, a former nuclear 
weapons facility, is closed to the public, and no development or 
construction is allowed in the areas where smooth coneflower occurs. 
This USDOE site, designated as a National Environmental Research Park, 
is managed by the USFS. Several other populations are permanently 
protected on non-Federal lands by the VADNH, NCDACS, NCPCP, TNC, and 
Mecklenburg County (NC) Parks and Recreation Department.
    In response to impacts to populations of smooth coneflower in 
roadside and utility ROWs, State departments of transportation and 
utility companies, such as Duke Energy and Georgia Power, now have 
management agreements or MOUs with State Natural Heritage Programs, the 
USFS, and other landowners to protect and manage smooth coneflower 
populations on their ROWs in a way that is protective of the species.
    While significant progress has been made to address the protection 
and management of many smooth coneflower populations, development 
pressure and management challenges associated with adjacent development 
continue to pose a threat to unprotected smooth coneflower populations. 
Populations that occur on private lands face threats from development 
and land conversion. Additionally, protected populations adjacent to 
private land can be difficult to manage with prescribed fire due to 
concerns of neighbors. Without proper management, woody vegetation 
could grow up and shade a smooth coneflower population to the point of 
causing decline or eradication in less than 10 years. Long-term 
management is still of concern to the Service, as several populations 
are not specifically considered in management plans nor have 
commitments to be managed into the future. Maintenance activities pose 
a threat to smooth coneflower populations that occur on roadside and 
utility ROWs. Despite agreements with State and Federal agencies to 
conduct ROW maintenance in a way that is protective of rare plants, 
accidents happen frequently. These sites are mowed or sprayed with 
herbicide on an irregular basis with varying levels of impacts.

Collection

    When we listed smooth coneflower as an endangered species (57 FR 
46340; October 8, 1992), there was concern that populations might be 
decimated by collectors interested in exploiting this species for the 
horticulture and pharmaceutical trades. We expected that publicity 
might generate increased demand for this species in the nursery trade. 
However, the final listing rule also mentioned that smooth coneflower, 
``although offered for sale by a few native plant nurseries, is not 
currently a significant component of the commercial trade in native 
plants'' (57 FR 46340, October 8, 1992, p. 46341). Currently, we are 
not aware of any plant nurseries that offer this species for sale, 
likely a result of the prohibitions on collecting endangered plants 
such as the smooth coneflower. The only incidents of poaching known to 
the Service occurred at one site in GA. Flowers were broken off smooth 
coneflower plants at one of the roadside sites on Currahee Mountain, GA 
(Alley 2018, pers. comm.). While there is potential that specialty 
nurseries would be interested in selling this species in the future, 
the Service concludes that the demand for wild-collected plants is low, 
as other species in the genus Echinacea can be readily propagated using 
common horticultural techniques.
    The concern in the final rule (57 FR 46340; October 8, 1992) that 
this species would be collected for the pharmaceutical trade was based 
on observations of over-collection of other species of Echinacea in the 
midwestern United States for use in medicinal products. However, the 
rule also stated that ``devastation'' of smooth coneflower populations 
``for the commercial pharmaceutical trade has not yet been documented'' 
(57 FR 46340, October 8, 1992, p. 46342). Despite the concerns, in the 
27 years that smooth coneflower has been listed, the Service has not 
been aware of any incidents of poaching this species for use in 
medicinal products. Since plants in the genus Echinacea are still used 
for medicinal purposes, the threat of this activity remains, but the 
probability is low due to relatively small population sizes compared to 
other species in the genus Echinacea that grow in midwestern States. 
Moreover, land managers have not reported poaching as a significant 
threat to their smooth coneflower populations because other species of 
Echinacea are so much more numerous.
    Various types of academic research have been conducted on smooth 
coneflower since the species was listed in 1992. These studies involved 
the collection of leaves, stems, flowers, and seeds for laboratory 
experiments or the collection of voucher specimens for herbaria. The 
NCBG, State Botanical Garden of Georgia, and Atlanta Botanical Garden 
have collected smooth coneflower seeds over the years to be used in 
restoration projects in their respective States. These botanical 
gardens follow the Center for Plant Conservation guidelines for seed 
collection and minimize impacts to populations, a protocol that is 
followed for all species, regardless of whether the species is 
federally listed or not (Kunz 2018, pers. comm.). We evaluated these 
projects before they were initiated and determined that the level of 
collection was unlikely to pose any potential threat of overutilization 
for the species. We do not find that any of these research or seed 
banking projects have had long-term negative effects on smooth 
coneflower. If the species were not listed, we do not anticipate a 
significant increase in collection pressure, given current lack of 
poaching and low interest in the species.
    We conclude that collection is no longer a threat to the continued 
existence of smooth coneflower.

Damage Due to Herbivory by Beetles and Deer

    When we listed smooth coneflower as an endangered species (57 FR 
46340; October 8, 1992), leaf beetles in the family Chrysomelidae had 
been

[[Page 33170]]

observed on smooth coneflower in NC, but their effects were unknown. As 
mentioned in the 2011 5-year review, a nonnative longhorn beetle 
(Hemierana marginata; family Cerambycidae) was identified at some 
smooth coneflower populations in NC. This beetle chews into the 
flowering stem and causes flowers to die before producing viable seeds. 
While this longhorn beetle has been reported from a few smooth 
coneflower populations in two NC counties, healthy smooth coneflower 
populations remain at these sites. Therefore, we conclude that the 
nonnative longhorn beetle is not a threat at this time.
    White-tailed deer (Odocoileus virginianus) have been documented 
browsing on the flower heads of smooth coneflower, but deer herbivory 
on the leaves has not been observed (Starke 2019, pers. comm.). No 
other herbivory has been observed. Based on the best available 
information at this time, we conclude that neither deer browsing nor 
any other herbivory is causing population-level effects to the smooth 
coneflower.

State Regulatory Protections

    Smooth coneflower is listed as ``State Endangered'' by the GADNR. 
The relevant State law (Rules and Regulations of the State of Georgia, 
Subject 391-4-10, Protection of Endangered, Threatened, Rare, or 
Unusual Species) prohibits, among other things, the transfer of a 
State-listed plant from one property to another without the written 
permission of the landowner where the species was found. Violations of 
this law constitute a misdemeanor. In addition, the GA Environmental 
Policy Act requires the assessment of major proposed agency impacts on 
biological resources (2019 GA Code 12-16-1 et seq.). Georgia's 
Wildflower Preservation Act of 1973 protects rare plants (2019 GA Code 
12-6-170 et seq.). However, the GA Wildflower Preservation Act does not 
protect plants on private property. Nearly all known smooth coneflower 
populations in GA occur on Federal lands such as the Chattahoochee-
Oconee National Forest and DOD (Department of the Army) installations 
such as Fort Stewart (Moffett 2019, pers. comm.). As discussed above 
(see Habitat Degradation or Loss due to Development and Absence of 
Natural Disturbance), Federal lands provide some protection to smooth 
coneflower populations by limiting public access and reducing the 
threat of development, as well as ensuring agency-specific management 
plans.
    Smooth coneflower is listed as ``endangered'' in NC by the NCPCP 
and protected by the Plant Protection and Conservation Act of 1979 (NC 
General Statutes, Article 19B, section 106-202.12 et seq.). This law 
prevents the removal of State-listed plants from the land without 
written permission of the landowner. However, it does not regulate 
destruction or mandate protection. It authorizes the NCPCP to establish 
nature preserves for protected species and their habitats. To that end, 
the NCPCP owns and manages several tracts of land as preserves for the 
protection of smooth coneflower and other associated rare plants.
    The Virginia Endangered Plant and Insect Species Act (section 3.2-
1000 et seq. of the Code of Virginia), as amended, provides for the 
official listing and recovery of endangered and threatened plant and 
insect species in VA. The VADNH lists smooth coneflower as 
``threatened'' in the State (Title 2 of the VA Administrative Code at 
section 5-320-10 (2VAC5-320-10); Townsend 2018, p. 16). Virginia law 
prohibits the removal and sale or gifting of State-listed plant species 
from land other than a person's own land. The VADCR owns three natural 
area preserves that protect populations of smooth coneflower.
    The Virginia Endangered Plant and Insect Species Act has not played 
a major role in safeguarding smooth coneflower populations (Townsend 
2019, pers. comm.).
    Smooth coneflower is on the SCDNR's list of rare, threatened, and 
endangered species of SC (SCHTP 2018, unpaginated); however, neither 
the law that authorizes the creation of this list, nor any other State 
law, provides general protection to listed plants in SC.
    Populations of smooth coneflower are more abundant and widely 
distributed than when it was listed as an endangered species in 1992. 
It is also listed as endangered or threatened by three of the four 
States where it occurs (GA, NC, and VA). However, protection of this 
and other State-listed species on private land is challenging. State 
prohibitions against taking are difficult to enforce and do not cover 
adverse alterations of habitats such as exclusion of fire. As 
previously mentioned in this proposed rule, the majority of the highest 
ranked populations (Ranks A, AB, and B) occur on protected Federal 
lands and other conservation properties.

Genetics

    The final rule listing smooth coneflower as an endangered species 
(57 FR 46340; October 8, 1992) stated that, at that time, the remaining 
smooth coneflower populations contained few individual plants and there 
may have been low genetic variability within populations, making each 
remaining population important. However, as discussed above under 
Population Structure, we now know that smooth coneflower displays a 
relatively high level of diversity (Peters et al. 2009, entire). Thus, 
populations may be able to respond to selection pressures due to 
continued genetic exchange sustained by the outcrossing mating system 
of the species.

Encroachment From Invasive Species

    Encroachment by nonnative, invasive plants poses a threat to some 
smooth coneflower populations, especially those occurrences located on 
highway ROWs or in utility line easements (such as power lines). These 
disturbed habitats often include nonnative species, some of which can 
become invasive. Invasive species change the floristic composition of 
these areas, compete for nutrients, limit germination of seeds (by 
changing or eliminating that niche/microenvironment), and may shade out 
smooth coneflower plants (Kunz 2020, pers. comm.). Another impact is 
the use of herbicides on invasive species that has the secondary effect 
of killing smooth coneflower. Smooth coneflower populations face 
threats by nonnative, invasive plants such as Japanese honeysuckle 
(Lonicera japonica), Sericea lespedeza (Lespedeza cuneata), shrubby 
lespedeza (Lespedeza bicolor), Japanese stiltgrass (Microstegium 
vimineum), and autumn olive (Elaeagnus umbellata) (White 2019, entire).

Climate Change

    Based on observations of climatic conditions over a period of 
approximately 20 years, there is some biological and historical 
evidence to suggest that smooth coneflower is adapted to persist with 
the potential effects of climate change, including more frequent 
droughts and increased average maximum temperatures. Smooth coneflower 
is typically found in open, sunny areas with little to no shade and 
high sun exposure. These sites often occur in fairly xeric conditions 
such as open woods, glades, barrens, roadsides, clear cuts, dry 
limestone bluffs, and road and power line ROWs. Even though smooth 
coneflower populations in NC experienced severe droughts in 2007 and 
2010, dry conditions did not negatively influence flower production 
(NCPCP 2018, entire). All natural populations in NC have survived 
through drought years and recovered. Despite some drought years, smooth

[[Page 33171]]

coneflower populations in SC have generally experienced positive trends 
over the last 20 years, indicating that the species is not negatively 
affected by droughts (White 2018, entire). Smooth coneflower plants 
have sustained populations for years on dry clay road cuts (White 2019, 
pers. comm.). Adaptations to survive in sunny areas likely benefit this 
species during drought conditions. Further, the perennial growth 
habitat and underground rhizomes likely allow smooth coneflower to be 
more resilient to drought conditions.
    To generate future climate projections across the range of smooth 
coneflower, we used the National Climate Change Viewer (NCCV), a tool 
developed by the U.S. Geological Survey (USGS) that allows the user to 
view climate projections at the State, county, and watershed level 
(Alder and Hostetler 2017, entire;). The model simulates the response 
of the water balance to changes in temperature and precipitation in the 
climate models (30 separate models developed by the National 
Aeronautics and Space Administration). The NCCV also provides access to 
comprehensive summary reports for States, counties, and watersheds.
    Using the NCCV and using Representative Concentration Pathways 
(RCP) greenhouse gas emission scenarios (RCP 4.5 and 8.5) as possible 
outcomes, we calculated projected annual mean changes for maximum air 
temperature and precipitation for the period 2050-2074 in VA, NC, SC, 
and GA. Based on these results, all four States within the range of 
smooth coneflower will be subjected to higher maximum air temperatures 
(annual mean increase of 1.9-2.2 degrees Celsius ([deg]C) (3.4-4.0 
degrees Fahrenheit ([deg]F)) for RCP 4.5; 2.7-3.2 [deg]C (4.9-5.8 
[deg]F) for RCP 8.5) and slightly higher precipitation (annual mean 
increase of 0.57-0.74 centimeters (cm)/month (mo) (0.22-0.3 inches 
(in)/mo) for RCP 4.5; 0.51-0.76 cm/mo (0.2-0.3 in/mo) for RCP 8.5) 
relative to 1981-2010 (Alder and Hostetler 2017, entire). In general, 
across the species' range for both RCP 4.5 and 8.5, runoff is expected 
to remain at a similar levels or decrease slightly; soil water storage 
is expected to decrease slightly, and evaporative deficit will increase 
slightly (Alder and Hostetler 2017, entire). Because the average annual 
increase in precipitation is predicted to be only slightly higher, the 
increased evaporative deficit and the loss in runoff and soil storage 
is primarily a result of higher maximum and minimum air temperatures. 
Despite the slight increase in predicted precipitation, the coincident 
warming means that habitats are unlikely to maintain their current 
levels of moisture and will become slightly drier.
    To evaluate the vulnerability of smooth coneflower to the effects 
of climate change, we also used NatureServe's Climate Change 
Vulnerability Index (CCVI) (Young et al. 2015, entire), a climate 
change model that uses downscaled climate predictions from tools such 
as Climate Wizard (Girvetz et al. 2009, entire) and combines these with 
readily available information about a species' natural history, 
distribution, and landscape circumstances to predict whether it will 
likely suffer a range contraction and/or population reductions due to 
the effects of climate change. The tool gauges 20 scientifically 
documented factors and indicators of these components, as well as 
documented responses to climate change where they exist. The CCVI 
generated a vulnerability rating of ``moderately vulnerable'' for 
smooth coneflower, suggesting that the species' abundance and/or range 
extent is likely to decrease by 2050. Factors influencing the species' 
moderate vulnerability include its restricted dispersal ability, 
anthropogenic barriers, predicted land use changes, dependence on a 
specific disturbance regime (often fire), and restriction to uncommon 
geological features.
    Although the model suggested that smooth coneflower is sensitive to 
climate change and could be adversely affected in future years, there 
are a number of weaknesses associated with the CCVI (Anacker and 
Leidholm 2012, pp. 16-17). The specific weaknesses identified are: (1) 
The CCVI is weighted too heavily towards direct exposure to climate 
change (projected changes to future temperature and precipitation 
conditions that have high levels of uncertainties); (2) some important 
plant attributes are missing (mating system and pollinator 
specificity); (3) it is very difficult to complete scoring for a given 
species because some information is simply lacking; and (4) some 
scoring guidelines are too simplistic (Anacker and Leidholm 2012, pp. 
16-17).
    Anacker and Leidholm (2012, pp. 12-16) considered topographic 
complexity to be a potential complementary factor in assessing 
vulnerability to climate change. Within smooth coneflower's range, the 
Appalachian and Allegheny mountains have been predicted to have 
slightly higher temperature changes as a result of climate change than 
the piedmont and coastal plain counties, so smooth coneflower 
populations in the mountains on the north end of the range may be more 
vulnerable when compared to those that occur, for example, in the 
coastal plain.
    In summary, while smooth coneflower is considered moderately 
vulnerable to range contraction from future climate change, the 
predicted temperature and precipitation changes for both moderate (RCP 
4.5) and extreme (RCP 8.5) scenarios indicate only slightly hotter and 
drier conditions by 2074. Therefore, climate change is not likely a 
major factor affecting the species' resiliency into the foreseeable 
future.

Stochastic Events

    Stochastic events (environmental and genetic stochasticity) could 
affect populations of smooth coneflower. Environmental stochasticity 
refers to variation in recruitment and mortality rates in response to 
weather, disease, competition, predation, or other factors external to 
the population. While drought (below average rainfall over a time 
period greater than the historical range of variability) and the timing 
and amount of rainfall are likely important factors in seed germination 
and establishment of smooth coneflower, we do not have any evidence of 
how these factors directly affect this species. Smooth coneflower soil 
seed banks are low to nonexistent, which could exacerbate the potential 
effects of stochastic events because the species does not have the seed 
bank to rely on for future recruitment (Walker 2009, p. 12); however, 
we have not yet observed that the low seedbank has affected resilient 
populations. With regard to genetic stochasticity, smooth coneflower 
populations have significant levels of population diversity and exhibit 
substantial population genetic differentiation (Peters et al. 2009, p. 
12) (see Genetics, above). We cannot conclude that either environmental 
or genetic stochasticity poses a threat to the smooth coneflower.

Cumulative Effects

    The cumulative effects of encroaching development adjacent to 
protected sites could affect the smooth coneflower, and the management 
challenges that accompany that threat will continue to affect the 
species into the future. Increasing development adjacent to protected 
sites will likely lead to decreases in managing with prescribed burning 
in the future, which may or may not be replaced with adequate and 
appropriate habitat management by other means that are more expensive 
than managing with fire. The type of development also factors into 
management ability and flexibility, with major roads and places with 
vulnerable

[[Page 33172]]

populations weighing more heavily on the decision of if/when to burn 
than other types of development.

Determination of Smooth Coneflower's Status

    As discussed above in Summary of Factors Affecting the Species, 
section 4 of the Act (16 U.S.C. 1533) defines ``endangered species'' as 
a species that is in danger of extinction throughout all or a 
significant portion of its range, and ``threatened species'' as a 
species that is likely to become an endangered species within the 
foreseeable future throughout all or a significant portion of its 
range. The Act requires that we determine whether a species meets the 
definition of endangered species or threatened species because of any 
of the following factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence.

Foreseeable Future

    As also described above, the term ``foreseeable future'' extends 
only so far into the future as the Service can reasonably determine 
that both the future threats and the species' responses to those 
threats are likely. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.
    We considered a foreseeable future of 20-30 years as the period of 
time over which we are able to reliably predict the magnitude of 
threats, including a changing climate, and the effects on smooth 
coneflower. Threats that are reasonably likely to affect the species in 
the foreseeable future include habitat loss due to development pressure 
on private lands and habitat succession due to lack of adequate 
management, including fire suppression near or on private lands and 
accidental mowing and herbicide application from roadside maintenance 
activities. Thus, all populations of smooth coneflower that are not 
actively managed or formally protected remain at risk of extirpation in 
the future. A 20-30 year timeframe is the expected period over which 
implementation of management practices (such as prescribed fire) by 
conservation partners and tracking of the species' response to managed 
habitat improvement is reliable. For formally protected populations, we 
expect management of the threat of fire suppression to continue as part 
of ongoing management well into the future. However, uncertainty 
regarding effects of a changing climate increases after 20-30 years, 
making reliable predictions after this time period difficult. 
Therefore, we used the 20-30 year timeframe in developing our 
projections of future conditions for smooth coneflower.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
find that smooth coneflower continues to face threats from habitat 
succession (resulting from lack of fire or other management), 
particularly in areas where development is increasing near existing 
populations, thus making fire management difficult. In addition, 
development pressure, especially for unprotected populations on private 
lands, remains a concern. We are concerned about long-term management 
because several populations do not have management plans or the 
management plans no longer reflect the best available science. Even 
populations occurring on protected land adjacent to private lands are 
becoming increasingly more difficult to manage due to neighbors' 
concerns about nearby fires and smoke pollution. Even with agreements 
in place to protect them, roadside and utility ROW populations still 
face threats from maintenance activities, especially herbicide spraying 
and mowing. The decline or disappearance of some smooth coneflower 
populations across the range of the species has been documented in 
Natural Heritage Program records and is attributed to habitat loss. 
Habitat loss (Factor A) is considered to be a moderate threat currently 
and is expected to continue in the foreseeable future.
    At the time of listing in 1992, there was concern that smooth 
coneflower plants would be collected for the horticulture or 
pharmaceutical trade (Factor B). However, we do not find that 
collecting is currently a threat to this species or is expected to be 
in the foreseeable future.
    Disease and predation (Factor C) were not identified as a 
significant threat to smooth coneflower when the species was listed in 
1992. Natural herbivory by insects and mammals may occur, but it is a 
considered a low-magnitude threat because the species has sustained 
populations and there is no indication that the magnitude of an 
undetermined natural predation pressure significantly affects smooth 
coneflower survival. We find that disease and predation are not 
currently threats to this species, and we do not expect them to be 
threats in the foreseeable future.
    The existing regulatory mechanisms (Factor D) are not adequate to 
protect the smooth coneflower from development and habitat succession. 
Populations of smooth coneflower on USFS, DOD, and USDOE lands receive 
some protection by management protocols applicable to those lands. Some 
populations in NC, SC, and VA occur on State-owned lands managed by 
their respective Natural Heritage Programs or the NCDACS as ``dedicated 
nature preserves.'' However, while NC, GA, and VA have plant protection 
laws, they only regulate the collection and trade of listed species and 
do not prohibit the destruction of populations on private lands or 
otherwise mandate protection. There is no State law protecting rare 
plants in SC.
    Other natural and manmade factors affecting the continued existence 
(Factor E) of smooth coneflower identified at the time of listing 
(1992) include low genetic variability within populations, encroachment 
by exotic species, herbicide use, and the importance of periodic 
disturbance (addressed above under Factor A). Of these threats, 
encroachment by exotic (invasive) species, and use of herbicides to 
manage those exotic species, continue to be a threat to smooth 
coneflower populations. Since listing, climate change is another factor 
that has been identified. However, genetic studies, described in detail 
above under Population Structure, indicate that smooth coneflower 
displays a relatively high level of diversity and that populations may 
be able to respond to selection pressures and maintain viability due to 
continued genetic exchange sustained by the outcrossing mating system 
of the species. Based on the redundancy and representation of the 
species, we conclude that potential impacts associated with stochastic 
events are not a threat to smooth coneflower. Despite our uncertainty 
about the species' vulnerability to climate change, we do not consider 
climate change to be a threat to smooth coneflower based on the current 
resiliency of the species and its demonstrated tolerance to periods of 
drought.
    Further, since the species' 1992 listing under the Act, smooth 
coneflower representation has increased with the discovery of new 
occurrences throughout the range of the species, especially with the 
new sites in the coastal plain of GA and SC. Our understanding of the 
species'

[[Page 33173]]

redundancy has improved as a result of increased survey efforts; the 
species is now known from 44 populations (up from 21 populations at the 
time of listing), 16 of which currently have high to medium resiliency. 
The number of resilient smooth coneflower populations has improved the 
species' redundancy. The species' representation is good, given the 
distribution of resilient populations over a four-State area. We 
believe that this improvement in the species' viability demonstrates 
that it is not currently in danger of extinction despite the 
persistence of the above-described threats.
    In conclusion, based on our assessment of the best available 
scientific and commercial information, we find that while smooth 
coneflower populations continue to face threats from habitat loss and 
invasive species, and existing regulatory mechanisms are currently 
inadequate to protect some smooth coneflower populations from 
development and habitat succession; however, there are currently 16 
protected, resilient smooth coneflower populations. Therefore, the 
species no longer meets the Act's definition of an endangered species, 
meaning it is not currently in danger of extinction throughout its 
range.
    We, therefore, proceed with determining whether smooth coneflower 
meets the Act's definition of a threatened species. The ongoing threats 
of habitat loss, fragmentation, habitat succession, and encroachment of 
nonnative and invasive species are of sufficient imminence, scope, or 
magnitude to affect the resiliency of smooth coneflower populations for 
the foreseeable future. The species relies on management such as 
prescribed fire and mechanical clearing to maintain its habitat. 
However, management plans for most of the areas in which the species is 
protected are outdated, and it is uncertain how those plans are even 
being implemented. Threatened development near protected sites could 
impede management of those sites with fire. Adequate management 
commitments would need to be secured for more populations before the 
species could be delisted. Thus, after assessing the best available 
information, we conclude that although smooth coneflower is not 
currently in danger of extinction, it is likely to become in danger of 
extinction within the foreseeable throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological 
Diversity), vacated the aspect of our Final Policy on Interpretation of 
the Phrase ``Significant Portion of Its Range'' in the Endangered 
Species Act's Definitions of ``Endangered Species'' and ``Threatened 
Species'' (79 FR 37578; July 1, 2014) that provided that the Service 
and the National Marine Fisheries Service do not undertake an analysis 
of significant portions of a species' range if the species warrants 
listing as threatened throughout all of its range. Therefore, we 
proceed to evaluating whether the species is endangered in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which both (1) the portion is significant; 
and (2) the species is in danger of extinction in that portion.
    Depending on the rule, it might be more efficient for us to address 
the ``significance'' question or the ``status'' question first. 
Regardless of which question we address first, if we reach a negative 
answer with respect to the first question, we do not need to evaluate 
the other question for that portion of the species' range.
    In undertaking this analysis for the smooth coneflower, we choose 
to address the status question first--we consider information 
pertaining to the geographic distribution of both the species and the 
threats that the species faces to identify any portions of the range 
where the species is endangered.
    For smooth coneflower, we considered whether the threats are 
geographically concentrated in any portion of the species' range at a 
biologically meaningful scale. We examined the following threats: 
Habitat succession, habitat loss, and invasive species, as well as the 
cumulative effects of these threats. Smooth coneflower populations on 
private lands face the threat of development. The decline or 
disappearance of some smooth coneflower populations across the range of 
the species has been documented in Natural Heritage Program records and 
is attributed to habitat loss. Further, encroachment by invasive 
species, which is most prevalent in disturbed areas, such as highway 
ROWs or utility corridors, occurs throughout the smooth coneflower's 
range. We found no concentration of threats in any portion of the 
smooth coneflower's range at a biologically meaningful scale. Thus, 
there are no portions of the species' range where the species has a 
different status from its rangewide status. Therefore, it is 
unnecessary for us to determine whether any portion of the species' 
range is significant. This is consistent with the courts' holdings in 
Desert Survivors v. Department of the Interior, No. 16-cv-01165-JCS, 
2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological 
Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017).

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the smooth coneflower meets the Act's 
definition of a threatened species. Therefore, we propose to reclassify 
the smooth coneflower from an endangered species to a threatened 
species in accordance with sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. The Act encourages cooperation with the States and requires 
that recovery actions be implemented for all listed species. The 
protections required by Federal agencies and the prohibitions against 
certain activities are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Subsection 4(f) of the Act requires the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystem.
    Revisions of the plan may be done to address continuing or new 
threats to the species, as new substantive information becomes 
available. The recovery plan identifies site-specific management 
actions that set a trigger for review of the five factors that control 
whether a species may be downlisted or delisted, and methods for 
monitoring recovery progress. Recovery plans also establish

[[Page 33174]]

a framework for agencies to coordinate their recovery efforts and 
provide estimates of the cost of implementing recovery tasks. All 
planning documents can be found on our website (https://www.fws.gov/endangered) or from our Raleigh Ecological Services Field Office (see 
FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands (like TNC preserves and county owned nature preserves). 
To achieve recovery of these species requires cooperative conservation 
efforts on private, State, and Tribal lands where appropriate. Funding 
for recovery actions could become available from a variety of sources, 
including Federal budgets, State programs, and cost share grants from 
non-Federal landowners, the academic community, and nongovernmental 
organizations. We invite you to submit any new information on this 
species whenever it becomes available (see FOR FURTHER INFORMATION 
CONTACT).
    Section 7(a) requires Federal agencies to evaluate their actions 
with respect to any species that is listed as an endangered or 
threatened species. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(2) of the Act requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of the species. If a Federal action 
may affect a listed species, the responsible Federal agency must enter 
into consultation with the Service.

Proposed Rule Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as he deems 
necessary and advisable to provide for the conservation of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
Conservation is defined in the Act to mean the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary. Additionally, the second sentence 
of section 4(d) of the Act states that the Secretary may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1) of the Act, in the case of fish or wildlife, or 
section 9(a)(2) of the Act, in the case of plants. Thus, the 
combination of the two sentences of section 4(d) provides the Secretary 
with wide latitude of discretion to select and promulgate appropriate 
regulations tailored to the specific conservation needs of the 
threatened species. The second sentence grants particularly broad 
discretion to the Service when adopting the prohibitions under section 
9 of the Act.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to him with regard to the permitted activities for those species. He 
may, for example, permit taking, but not importation of such species, 
or he may choose to forbid both taking and importation but allow the 
transportation of such species'' (H.R. Rep. No. 412, 93rd Cong., 1st 
Sess. 1973).
    Exercising this authority under section 4(d), we have developed a 
proposed rule that is designed to address smooth coneflower's specific 
threats and conservation needs. Although the statute does not require 
the Service to make a ``necessary and advisable'' finding with respect 
to the adoption of specific prohibitions under section 9, we find that 
this rule as a whole satisfies the requirement in section 4(d) of the 
Act to issue regulations deemed necessary and advisable to provide for 
the conservation of the smooth coneflower.
    As discussed above under Summary of Factors Affecting the Species, 
we have concluded that the smooth coneflower is likely to become in 
danger of extinction within the foreseeable future primarily due to the 
present or threatened destruction, modification, or curtailment of its 
habitat or range (specifically due to fire suppression and subsequent 
ecological succession and development, and encroachment from invasive 
species).
    Specifically, a number of activities have the potential to affect 
the smooth coneflower, including land clearing for development, fire 
suppression, and herbicide application to highway and utility ROWs. 
Regulating these activities, including prohibiting those activities 
related to removing, damaging, or destroying smooth coneflowers, would 
provide for conservation of the species by helping to preserve 
remaining populations, slowing their rate of potential decline, and 
decreasing synergistic, negative effects from other stressors. 
Prohibiting import and export, transportation, and commerce of smooth 
coneflower limits unauthorized propagation and distribution, which 
prevents potential hybridization with other species of Echinacea and 
subsequent inbreeding depression. As a whole, the proposed 4(d) rule 
would help in the efforts to recover the species.
    The provisions of this proposed 4(d) rule would promote 
conservation of smooth coneflower by encouraging management of the 
landscape in ways that meet both land management considerations and the 
conservation needs of the smooth coneflower, specifically by providing 
exceptions for incidental take for State agency conservation actions, 
scientific permits for research, and use of cultivated-origin seeds for 
education. The provisions of this proposed rule are one of many tools 
that we would use to promote the conservation of the smooth coneflower. 
This proposed 4(d) rule would apply only if and when we make final the 
reclassification of the smooth coneflower as a threatened species.

Provisions of the Proposed 4(d) Rule

    This proposed 4(d) rule would provide for the conservation of the 
smooth coneflower by prohibiting the following activities, except as 
otherwise authorized or permitted: Importing or exporting; certain acts 
related to removing, damaging, and destroying; delivering, receiving, 
carrying, transporting, or shipping in interstate or foreign commerce 
in the course of commercial activity; and selling or

[[Page 33175]]

offering for sale in interstate or foreign commerce.
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened plants under 
certain circumstances. Regulations governing permits are codified at 50 
CFR 17.72. With regard to threatened plants, a permit may be issued for 
the following purposes: For scientific purposes, to enhance propagation 
or survival, for economic hardship, for botanical or horticultural 
exhibition, for educational purposes, or for other purposes consistent 
with the purposes of the Act. Additional statutory exemptions from the 
prohibitions are found in sections 9 and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we shall cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. Therefore, as set forth at 50 CFR 17.71(b) and 
proposed as an exception to the prohibitions in this 4(d) rule, any 
employee or agent of the Service or of a State conservation agency that 
is operating a conservation program pursuant to the terms of a 
cooperative agreement with the Service in accordance with section 6(c) 
of the Act, who is designated by that agency for such purposes, would 
be allowed, when acting in the course of official duties, to remove and 
reduce to possession from areas under Federal smooth coneflowers that 
are covered by an approved cooperative agreement to carry out 
conservation programs. In addition, in accordance with 50 CFR 
17.61(c)(2) through (4), any employee or agent of the Service, any 
other Federal land management agency, or a State conservation agency, 
who is designated by that agency for such purposes, would be able to, 
when acting in the course of official duties, remove and reduce to 
possession endangered plants from areas under Federal jurisdiction 
without a permit to care for a damaged or diseased specimen, or to 
salvage or dispose of a dead specimen.
    We also recognize the beneficial and educational aspects of 
activities with seeds of cultivated plants, which generally enhance the 
propagation of the species, and therefore would satisfy permit 
requirements under the Act. We intend to monitor the interstate and 
foreign commerce and the import and export of these specimens in a 
manner that will not inhibit such activities, providing the activities 
do not represent a threat to the survival of the species in the wild. 
In this regard, seeds of cultivated specimens would not be regulated 
provided that a statement that the seeds are of ``cultivated origin'' 
accompanies the seeds or their container (e.g., the seeds could be 
moved across State lines or between territories for purposes of seed 
banking or use for outplanting without additional regulations).
    Nothing in this proposed 4(d) rule would change in any way the 
recovery planning provisions of section 4(f) of the Act, the 
consultation requirements under section 7 of the Act, or our ability to 
enter into partnerships for the management and protection of smooth 
coneflower. However, interagency cooperation may be further streamlined 
through planned programmatic consultations for the species between us 
and other Federal agencies, where appropriate. We ask the public, 
particularly State agencies and other interested stakeholders that may 
be affected by the proposed 4(d) rule, to provide comments and 
suggestions regarding additional guidance and methods that we could 
provide or use, respectively, to streamline the implementation of this 
proposed 4(d) rule (see Information Requested, above).

Effects of This Proposed Rule

    This proposed rule, if made final, would revise 50 CFR 17.12(h) to 
reclassify the smooth coneflower from endangered to threatened on the 
Federal List of Endangered and Threatened Plants. It would also 
recognize that this plant is no longer in danger of extinction 
throughout all or a significant portion of its range. This 
reclassification does not significantly change the protections afforded 
to this species under the Act. The prohibitions and conservation 
measures provided by the Act, particularly through sections 7 and 9, 
would continue to apply to the smooth coneflower. Federal agencies are 
required to consult with the Service under section 7 of the Act in the 
event that activities they authorize, fund, or carry out may affect the 
smooth coneflower.
    As applicable, recovery actions directed at the smooth coneflower 
will continue to be implemented as outlined in the recovery plan for 
this plant (USFWS 1995). Highest priority actions (also recommended as 
future actions in our 5-year review (USFWS 2011, pp. 13-14)) include: 
(1) Continue to work with partners to strengthen management plans for 
protected smooth coneflower populations so they will better contribute 
to the recovery of the species; (2) continue conducting comprehensive 
surveys for this species within traditional and non-traditional sites 
to determine more details on abundance and distribution of the species; 
(3) develop stronger monitoring protocols and continue long-term 
monitoring that will demonstrate stability of populations; (4) promote 
conservation agreements with private landowners to protect and enhance 
existing populations; (5) work closely with landowners to ensure the 
protection of the species and management of its habitat on private 
lands; (6) develop propagation and outplanting protocols according to 
Center for Plant Conservation guidelines; and (7) continue to conduct 
research on general biology of the species including genetics, life 
history, and reproductive biology (breeding systems, seed production, 
and seedling survivorship).

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act,

[[Page 33176]]

need not be prepared in connection with determining and implementing a 
species' listing status under the Endangered Species Act. We published 
a notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal interests affected by this proposal.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from the 
Raleigh Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this document are staff members of the Fish 
and Wildlife Service's Species Assessment Team and the Raleigh 
Ecological Services Field Office.

Signing Authority

    The Director, U.S. Fish and Wildlife Service, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the U.S. Fish and Wildlife Service. Martha 
Williams, Principal Deputy Director Exercising the Delegated Authority 
of the Director, U.S. Fish and Wildlife Service, approved this document 
on June 14, 2021, for publication.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. Amend Sec.  17.12, in paragraph (h), by revising the entry 
``Echinacea laevigata'' under Flowering Plants in the List of 
Endangered and Threatened Plants to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
         Scientific name              Common name          Where listed          Status         and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                  * * * * * * *
Echinacea laevigata.............  Smooth coneflower..  Wherever found.....               T   57 FR 46340, 10/8/
                                                                                              1992; [Federal
                                                                                              Register citation
                                                                                              of final rule]; 50
                                                                                              CFR 17.73(f).\4d\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Add Sec.  17.73 to read as follows:


Sec.  17.73  Special rules--flowering plants.

    (a)-(e) [Reserved].
    (f) Echinacea laevigata (smooth coneflower)--(1) Prohibitions. The 
following prohibitions that apply to endangered plants also apply to 
Echinacea laevigata. Except as provided under paragraph (f)(2) of this 
section, it is unlawful for any person subject to the jurisdiction of 
the United States to commit, to attempt to commit, to solicit another 
to commit, or cause to be committed, any of the following acts in 
regard to this species:
    (i) Import or export, as set forth at Sec.  17.61(b) for endangered 
plants.
    (ii) Remove and reduce to possession from areas under Federal 
jurisdiction, as set forth at Sec.  17.61(c)(1) for endangered plants.
    (iii) Maliciously damage or destroy the species on any areas under 
Federal jurisdiction, or remove, cut, dig up, or damage or destroy the 
species on any other area in knowing violation of any State law or 
regulation or in the course of any violation of a State criminal 
trespass law, as set forth at section 9(a)(2)(B) of the Act.
    (iv) Engage in interstate or foreign commerce in the course of 
commercial activity, as set forth at Sec.  17.61(d) for endangered 
plants.
    (v) Sell or offer for sale, as set forth at Sec.  17.61(e) for 
endangered plants.
    (2) Exceptions from prohibitions. In regard to Echinacea laevigata, 
you may:
    (i) Conduct activities, including activities prohibited under 
paragraph (f)(1) of this section, if they are authorized by a permit 
issued in accordance with the provisions set forth at Sec.  17.72.
    (ii) Conduct activities authorized by a permit issued under Sec.  
17.62 prior to the effective date of the final rule for the duration of 
the permit.
    (iii) Remove and reduce to possession from areas under Federal 
jurisdiction, as set forth at Sec.  17.61(c)(2) through (4) for 
endangered plants and Sec.  17.71(b).
    (iv) Engage in any act prohibited under paragraph (f)(1) of this 
section with seeds of cultivated specimens, provided that a statement 
that the seeds are of ``cultivated origin'' accompanies the seeds or 
their container.

Madonna Baucum,
Regulations and Policy Chief, Division of Policy, Economics, Risk 
Management, and Analytics, Joint Administrative Operations, U.S. Fish 
and Wildlife Service.
[FR Doc. 2021-12951 Filed 6-23-21; 8:45 am]
BILLING CODE 4333-15-P