[Federal Register Volume 67, Number 9 (Monday, January 14, 2002)]
[Rules and Regulations]
[Pages 1662-1668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-665]



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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG07


Endangered and Threatened Wildlife and Plants; Reclassification 
of Scutellaria montana (Large-Flowered Skullcap) From Endangered to 
Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
reclassifying Scutellaria montana (large-flowered skullcap) from its 
present endangered status to threatened status under the authority of 
the Endangered Species Act of 1973, as amended (Act), because the 
endangered designation no longer correctly reflects the current status 
of this plant. This reclassification is based on the substantial 
improvement in the species' status. Since listing, when 10 occurrences 
(10 populations) were known, 74 additional occurrences (for a total of 
48 populations) have been discovered, and the total known number of 
individual plants has increased from about 6,700 to more than 50,000. 
This final rule implements the Federal protection and recovery 
provisions for threatened plants, as provided by the Act, to large-
flowered skullcap.

EFFECTIVE DATE: This final rule is effective on February 13, 2002.

ADDRESSES: The complete file for this final rule is available for 
public inspection, by appointment, during normal business hours, at the 
Asheville Field Office, U.S. Fish and Wildlife Service, 160 Zillicoa 
Street, Asheville, North Carolina 28801.

FOR FURTHER INFORMATION CONTACT: Mr. J. Allen Ratzlaff at the above 
address, by phone at 828/258-3939 or e-mail at [email protected], 
or contact Ms. Tyler Sykes at the Cookeville Field Office, U.S. Fish 
and Wildlife Service, 446 Neal Street, Cookeville, Tennessee, by phone 
at 931/528-6481 or e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Scutellaria montana is a perennial herb with solitary, erect, four-
angled, hairy stems that are usually from 30.0 to 50.0 centimeters (cm) 
(11.7 to 19.5 inches (in)) tall. The leaves are lanceolate (shaped like 
a lance-head, several times longer than wide, broadest above the base 
and narrowed to the apex) to ovate (egg-shaped, with the broader end at 
the base), on 1.0 to 2.0 cm (0.4 to 0.8 in) petioles (the stalk of a 
leaf that attaches it to the stem), with blades (the expanded portion 
of a leaf) 5.0 to 8.0 cm (2.0 to 3.1 in) long and 3.0 to 5.0 cm (1.2 to 
2.0 in) wide. The leaf margins (the edge of the leaf) are crenate 
(rounded, tooth-like edges) to serrate (having sharp teeth pointing 
forward) and hairy on both surfaces. The inflorescence (the flowering 
part of a plant) is a terminal (at the end of the stalk), leafy-bracted 
(a ``modified'' leaf) raceme (simple flowering stalk), with or without 
paired lateral racemes at the base. The calyx (the outer part of the 
flower) is two-lobed with a ``cap'' just above the base of the upper 
lobe (characteristic of the genus Scutellaria). The corolla (petals) is 
relatively large, 2.6 to 3.5 cm (1.0 to 1.4 in) long, blue and white, 
and lacking a fleshy ridge (annulus) within the corolla tube near the 
top of the calyx. Flowering occurs from mid-May to early June, and 
fruits mature in June and early July.
    Bridges (1984) stated, ``The genus Scutellaria can be easily 
recognized by its distinctive calyx, with a protrusion, or `cap' on the 
upper lobe.'' Scutellaria montana could be confused with other species 
of Scutellaria. Bridges (1984) also listed some important characters of 
Scutellaria montana: (1) A terminal inflorescence; (2) a large corolla 
at least 2.5 cm (1 in) long; (3) tapering or truncate (ending abruptly) 
leaf bases, never cordate (heart-shaped); (4) a midstem with at least 
some stipitate (short stemmed) glandular hairs; (5) no sessile (without 
a footstalk of any kind) glands on the upper leaf surface; (6) a fairly 
densely pubescent (hairy) lower leaf surface, often with glandular 
hairs; and (7) a corolla tube lacking an annulus within.
    Dr. A. W. Chapman (1878) described Scutellaria montana in 1878. 
Since then, the taxonomy of Scutellaria montana has undergone a period 
of debate. Penland (1924) reduced the taxon to a variety of Scutellaria 
serrata. Leonard (1927) later reinstated the species, but he made no 
distinction between Scutellaria pseudoserrata and Scutellaria montana 
(Collins, unpublished). Epling (1942) restored the taxon to full 
species status and clarified the questions regarding the taxonomic 
differences between Scutellaria pseudoserrata and Scutellaria montana.
    Cruzan and Vege (in preparation [prep.]) determined that 
populations southeast of Taylor Ridge in northwest Georgia are 
genetically distinct and lacked a number of alleles present in 
populations northwest of Taylor Ridge. This division is supported by 
analysis of chloroplast DNA variation, which indicates that populations 
of Scutellaria montana are divided into two geographically distinct 
groups of populations that are probably derived from separate 
Pleistocene refugia (Cruzan and Ferguson, in prep.).
    In the field, Scutellaria montana is most likely to be confused 
with Scutellaria pseudoserrata. The two species have a similar range 
and habitat and are sometimes found growing together. Scutellaria 
montana is the only species of Scutellaria that lacks an annulus within 
the corolla tube. Further, Scutellaria pseudoserrata has transparent 
sessile glands on the upper leaf surface and hairs only on the veins 
and leaf margins. In contrast, Scutellaria montana has a fine, even-
mixed glandular and nonglandular ``velvety'' pubescence on the upper 
and lower leaf surface. Two other skullcaps that can occur in the same 
region are Scutellaria elliptica and Scutellaria ovata, both of which 
have smaller flowers and branching inflorescences. Scutellaria 
elliptica tends to have leaf margins with rounded teeth and noticeably 
longer hairs on the leaf, and Scutellaria ovata has strongly cordate 
(heart-shaped) leaf bases and flowers later in the season.
    The pollination biology of this species has not been described. 
Collins (unpublished) and Cruzan (in Shea and Hogan 1998) observed bees 
(Apiodea) visiting plants, and Kemp and Knauss (1990) observed 
butterflies, wasps, and hummingbirds occasionally visiting the plants. 
The long floral tube (3.0 to 4.0 cm or 1.2 to 1.6 in) and a sucrose-
hexose (sugar) ratio near 50 percent (Cruzan and Case, in prep.) are 
indicative of a historical association with moths or long-tongued bees 
as the primary pollinator (Baker and Baker 1979, Southwick 1992, Kearns 
and Inouye 1993).
    Scutellaria montana is known from the southern portion of the Ridge 
and Valley Physiographic Province in Marion and Hamilton Counties in 
Tennessee; Catoosa, Chattooga, Dade, Floyd, Gordon, Murray, Walker, and 
Whitfield Counties in Georgia; and the Cumberland Plateau Province in 
Sequatchie, Marion, and Hamilton Counties in Tennessee.
    According to Bridges (1984), the geological strata underlying the 
occurrences of Scutellaria montana include most of the major slope-
forming formations of the region--shale, chert, limestone, and 
sandstone from Cambrian to Pennsylvanian in age. Most occurrences in 
Tennessee occur on the Upper Mississippian Pennington Formation and 
Lower Pennsylvanian sandstone and shale. Most of the

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occurrences in the Lookout Mountain portion of the Chickamauga-
Chattanooga National Military Park are found on Fort Payne, St. Lewis, 
Warsaw, Monteagle, and Bangor Formations that underlie the Pennington 
Formations (McKerrow and Pyne 1993). The Georgia portion of the Ridge 
and Valley is underlain by Paleozoic rock such as sandstone, shale, and 
limestone (Lipps and DeSelm 1969). The Georgia occurrences are found on 
Mississippian Formations including Rome, Red Mountain, and Rockwood 
(Collins, unpublished). Occurrence elevations range from 189 meters 
(620 feet) to 562 m (1,844 ft) above sea level.
    Most populations occur on colluvial soils (loose deposit of soils 
accumulated at the base of cliff or slope) over bedrock composed of 
shale, chert, or limestone. The soils are generally rocky, shallow, 
well-drained, and slightly acidic. Soil depth ranges from deep to a 
thin layer, no more than 3.0 cm (1.2 in) deep, over bedrock. In 
Georgia, the soil is generally stony, shaley, or cherty silt loam or 
silty clay loam ranging in depth from 0.2 m (8.0 in) to 1.4 m (55.0 
in). The average pH is 5.6 and ranges from 4.5 to 6.3 (Collins, 
unpublished).
    Bridges (1984) described the habitat of Scutellaria montana as ``* 
* * rocky, submesic to xeric, well-drained, slightly acidic slope, 
ravine and stream bottom forests in the Ridge and Valley and Cumberland 
Plateau provinces of Northwestern Georgia, and adjacent southeastern 
Tennessee (and probably Alabama).'' Bridges (1984) also listed 
distinguishing characteristics of the forests where Scutellaria montana 
is found as: (1) A history of some natural pine occurrence; (2) a 
canopy dominated by oaks and hickories; (3) a mostly deciduous shrub 
layer with some evergreen Vaccinium; (4) a moderately dense herb layer 
with mesic and xeric species; and (5) occurring on well-consolidated 
Paleozoic to Precambrian strata, often with some exposed rock.
    Forest composition data have been collected on sites in the 
Marshall Forest and Marion County, Tennessee, populations (Faulkner 
1993; Collins, unpublished; Lipps 1966). Data from the sites where 
Scutellaria montana was first studied indicated that it occurred in 
late-successional forests. Studies of other sites suggest that it is 
more of a mid-to late-successional species (Bridges 1984; Collins, 
unpublished; Lipps 1966). At a Marion County, Tennessee, site, Faulkner 
(1993) observed Scutellaria montana persisting in an area where 
timbering activities had occurred and where the plants had been 
subjected to low-intensity ground fires. He concluded that, while 
individual plants established before the disturbance may survive, 
recruitment into disturbed sites is not likely. Fail and Sommers (1993) 
conducted a study on the Marshall Forest that suggests the associated 
species Quercus prinus (Chestnut oak) and Oxydendrum arboreum 
(Sourwood) may be producing allelopathic agents (toxic compounds) that 
may be inhibiting the growth and germination of Scutellaria montana 
near them.
    Scutellaria montana does not appear to compete well with other 
herbaceous species, especially rhizomatous colonial plants, and is not 
found in thick herbaceous cover (Bridges 1984). While optimal light 
conditions are not yet known, plants grow in areas that receive a 
relatively greater amount of light at ground level, generally due to 
canopy disturbance (Sutter, in litt., 1993). Nix (1993) states that 
``canopy coverage is probably the most important environmental factor 
that influences growth and survival.'' However, disturbances to the 
canopy accompanied by disturbances to the soil can lead to increases in 
other herbaceous species that could be detrimental to Scutellaria 
montana.
    When we listed Scutellaria montana in 1986, 10 populations were 
known--7 in Georgia (4 in Floyd County, 2 in Walker County, and 1 in 
Gordon County) and 3 in Tennessee (2 in Hamilton County and 1 in Marion 
County). Currently, 48 populations (some made up of more than one 
subpopulation) are known. We have defined a population as an 
``occurrence'' that is generally at least 0.5 mile from other 
occurrences, but site-specific determinations take into account 
physical barriers (ridges, highways, etc.), contiguous habitat (2 or 
more occurrences deemed part of a single population could be 1 mile 
apart on the same ridge or slope), and richness or diversity of the 
occurrence. Based on criteria in the Large-flowered Skullcap Recovery 
Plan, a population is considered self-sustaining, or viable, if it has 
a minimum of 100 individuals.
    Georgia is now known to have 29 populations. In Floyd County, there 
are now 9 known populations (15 occurrences), 5 of which are self-
sustaining, ranging in size from a few plants to about 1,300 plants. 
All of one self-sustaining population and 90 percent of another self-
sustaining population are protected (owned by The Nature Conservancy 
[TNC]), including the largest of the nine populations in the county. 
The remaining populations are all on private land.
    Catoosa County, Georgia, is currently known to have 6 populations 
(10 occurrences). Three of the populations are self-sustaining, ranging 
in size from about 140 to more than 300 plants. The largest population 
receives some protection as it is within Catoosa County Park. The other 
populations are all on private land or land of unknown ownership. There 
is also evidence of a site with Scutellaria montana on Chickamauga Park 
(owned by the National Park Service [NPS]) in Catoosa County, but the 
site has not been surveyed and its status is considered ambiguous 
according to the Georgia Natural Heritage Program.
    Five new populations (8 occurrences) have been discovered in Gordon 
County, Georgia, though none appear to be self-sustaining (all have 
less than 100 plants). One population known from Gordon County, 
Georgia, was extirpated when the area was clearcut early in 1986, prior 
to the listing of the species.
    Walker County, Georgia, has three nonself-sustaining populations 
(5, 16, and 60 plants, respectively). The population of 16 plants is 
found on NPS land, and the other 2 are privately owned. Additionally, 
there is an introduced population on the Chattahoochee National Forest 
in Walker County (not included among populations counted towards 
attainment of criteria for downlisting).
    Murray County has two nonself-sustaining populations, all on 
private land, and there are currently two nonviable populations (three 
occurrences) known from Chattooga County, Georgia. One population has 
only three plants (on U.S. Forest Service [USFS] land), and the other 
two occurrences that make up the other population are described as 
having only four plants and ``dozens'' of plants. A single, nonviable 
population (10 plants) occurs on NPS land in Dade County, Georgia, near 
the Lookout Mountain population in Tennessee, and a single nonviable 
population (~60 plants) of unknown ownership has been found in 
Whitfield County.
    Tennessee is now known to have 19 populations. Hamilton County has 
14 known populations, 7 of which are considered self-sustaining. These 
populations range in size from a few plants to more than 2,600 plants. 
Several Hamilton County populations are made up of multiple 
subpopulations, some of which are large enough to constitute self-
sustaining populations by themselves, but they do not meet the 
necessary criteria set forth in the recovery plan to be considered 
separate populations.
    Marion County, Tennessee, now has 2 populations ranging in size 
from about 50 plants to more than 40,000 plants at

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the Tennessee River Gorge. The Tennessee River Gorge population is made 
up of 8 subpopulations, 2 of which contain more than 20,000 plants. All 
of the smaller Marion County site (55 plants) is protected, and 6 of 
the 8 subpopulations in the Tennessee River Gorge are protected (less 
than 1 percent of the plants are not protected).
    Three populations (2, 50, and ``several hundred'' plants, 
respectively) are known from Sequatchie County, Tennessee, with only 
the latter being self-sustaining. The landowner of the largest 
population is willing to protect the plant through a donated 
conservation easement, but the agreement has yet to be formalized.

Previous Federal Actions

    Federal Government actions on this species began with section 12 of 
the Act (16 U.S.C. 1531 et seq.), which directed the Secretary of the 
Smithsonian Institution (Smithsonian) to prepare a report on plants 
considered endangered, threatened, or extinct. This report, designated 
House Document No. 94-51, was presented to Congress on January 9, 1975. 
On July 1, 1975, we published a notice (40 FR 27823) that formally 
accepted the Smithsonian report as a petition within the context of 
section 4(c)(2) (now section 4(b)(3)) of the Act. By accepting this 
report as a petition, we also acknowledged our intention to review the 
status of those plant taxa named within the report. Scutellaria montana 
was included in the Smithsonian report and the July 1, 1975, Notice of 
Review.
    We published a revised Notice of Review for Native Plants on 
December 15, 1980 (45 FR 82480); Scutellaria montana was included as a 
category 1 species. Category 1 species were those for which we had 
information on file to support proposing them as endangered or 
threatened. On November 28, 1983, we published a supplement to the 
Notice of Review for native plants in the Federal Register (48 FR 
53640). Scutellaria montana was changed to a category 2 species in this 
supplement. Category 2 species were those for which we had information 
suggesting that proposing to list them as endangered or threatened may 
be appropriate but for which substantial data on biological 
vulnerability and threats were not currently known or on file to 
support the preparation of proposed listing rules. Subsequent to this 
notice, we received a draft status report on Scutellaria montana 
(Collins, unpublished). This report and other available information 
indicated that the addition of Scutellaria montana to the Federal List 
of Endangered and Threatened Wildlife and Plants was appropriate.
    All plants included in the comprehensive plant notices were treated 
as under petition. Section 4(b)(3)(B) of the Act, as amended in 1982, 
requires the Secretary to make certain findings on pending petitions 
within 12 months of their receipt. Section 2(b)(1) of the 1982 
amendments further requires that all petitions pending on October 13, 
1982, be treated as having been newly submitted on that date. This 
situation was the case for Scutellaria montana because of the 
acceptance of the 1975 Smithsonian report as a petition. On October 13, 
1983, October 12, 1984, and October 11, 1985, we found that the 
petitioned listing of Scutellaria montana was warranted but precluded 
by other listing actions of higher priority and that additional data on 
vulnerability and threats were still being gathered. On September 27, 
1985, Scutellaria montana was again included as a category 1 species in 
the revised Notice of Review (50 FR 39526), and on November 13, 1985, 
we published in the Federal Register (50 FR 46797) a proposal to list 
Scutellaria montana as an endangered species. That proposal constituted 
the next 1-year finding as required by the 1982 amendments to the Act. 
A final rule placing Scutellaria montana on the Federal List of 
Endangered and Threatened Wildlife and Plants as an endangered species 
was published in the Federal Register on June 20, 1986 (51 FR 22521).
    Since listing, Federal actions have included a variety of recovery 
actions funded or carried out by the Tennessee Valley Authority (TVA), 
NPS, USFS, and the Service, including searches for additional 
populations, habitat studies, translocations, and land management.
    We have conducted numerous consultations under section 7 of the Act 
involving Scutellaria montana. More than 50 consultations have taken 
place in Tennessee, principally concerning road and bridge construction 
or maintenance. Most potential conflicts have been resolved early in 
the informal portion of the consultation process, resulting in our 
concurrence with ``not likely to adversely affect'' determinations. One 
formal consultation was conducted that resulted in a ``no jeopardy'' 
biological opinion. Three informal section 7 consultations regarding 
this species have taken place in Georgia.
    A recovery plan was completed for Scutellaria montana in 1996 
(Service 1996). The recovery plan provides the following criteria for 
downlisting: ``If numbers of discrete populations increase to 25 
(because of the discovery or establishment of additional populations) 
or the number of protected and managed self-sustaining populations 
becomes 10 or more (distributed throughout the known geographic range), 
the species will be considered for downlisting to threatened status.'' 
The recovery plan also provides a description of protected and managed 
self-sustaining populations as follows: ``A population will be 
considered adequately protected when it is legally protected and all 
needed active management is provided. A population will be considered 
`self-sustaining' if monitoring data support the conclusion that it is 
reproducing successfully and is stable or increasing in size. The 
minimum number of individuals necessary for a self-sustaining 
population should be considered at least 100 until otherwise determined 
by demographic studies.''
    The criteria for downlisting have been met through both the number 
of known populations (48) and the number of self-sustaining (viable), 
protected populations (11) distributed throughout the species' range. 
Though no formal written agreements have been developed with the 
principal landowners where protected, self-sustaining populations occur 
(TNC, the States of Georgia and Tennessee, TVA, and the NPS), managers 
of this land are committed to the conservation of these populations and 
are actively involved as part of the recovery effort.
    On February 8, 1998, we mailed letters to 94 potentially affected 
congressional offices, Federal and State agencies, local governments, 
and interested parties to notify them that we were considering a 
proposal to reclassify Scutellaria montana as a threatened species. We 
received three written responses (TVA, Tennessee Department of 
Environment and Conservation, and the Wildlife Resources Division of 
the Georgia Department of Natural Resources), all in support of 
downlisting.

Summary of Comments and Recommendations

    On July 12, 2000, we published the proposed rule to reclassify 
Scutellaria montana from endangered to threatened status in the Federal 
Register (65 FR 42973), under the authority of the Act. Additionally, 
we announced this proposal in letters (110) dated July 17, 2000, and in 
legal notices published in the Rome News Tribune, Rome, Georgia, on 
July 23, 2000; the Walker County Messenger, LaFayette, Georgia, and the 
Catoosa County News, Ringgold, Georgia, on July 26, 2000; the Jasper

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Journal, Jasper, Tennessee, on July 27, 2000; and the Chattanooga 
Times, Chattanooga, Tennessee, on July 28, 2000. Those documents 
notified affected congressional offices, the governors of Tennessee and 
Georgia, Federal and State agencies, local governments, scientific 
organizations, and interested parties of the proposed action and 
requested comments and information that might contribute to the 
development of a final determination. We also announced the proposed 
downlisting through a press release on July 18, 2000, that was also 
made available on the Service's Southeast Regional home page on the 
Internet (southeast.fws.gov).

Changes in the Final Rule as a Result of the Public Comments

    We received four responses during the public comment period (one 
from a Federal agency, two from State agencies, and one from a 
conservation organization), all in support of the proposed 
reclassification. These comments did not result in any significant 
changes to the final rule. Population data received from the Georgia 
Department of Natural Resources' Natural Heritage Program are 
incorporated in this final rule. Key issues raised in the comments are 
presented below.
    Issue 1: One commenter raised concerns that ``* * * the 
qualifications for protected populations be published [as part of 
consensus opinions] during the downlisting procedure or in a revised 
Recovery Plan * * * to ensure such populations are viable, have 
feasible stewardship provisions to ensure the survival of the 
population, and represent the total range of the species * * *''
    Our Response: We agree that further definition of what constitutes 
a protected population will be valuable for this species and this issue 
will be considered through the recovery plan revision process.
    Issue 2: In the proposed rule we stated that ``* * * Scutellaria 
montana was not a significant component of the commercial trade in 
native plants. Significant commercial trade in Scutellaria montana is 
not currently known to occur or expected in the future, and no 
significant import or export is expected.'' One comment letter pointed 
out that at least one named cultivar of this species is ready to be 
placed in commercial trade. They also stated that Scutellaria montana 
is unlikely to be collected in the wild and that both Tennessee and 
Georgia have provisions in their respective State agencies to require 
permitting as needed in all in-State commerce.
    Our Response: We have changed this final rule to reflect this 
information.
    Issue 3: Under 50 CFR, subpart G, Sec. 17.71(a) ``Seeds of 
cultivated specimens of species treated as threatened shall be exempt 
from all the provisions of Sec. 17.61, provided that a statement that 
the seeds are of `cultivated origin' accompanies the seeds or their 
container during the course of any activity otherwise subject to these 
regulations.'' One comment letter stated that ``cuttings'' as well as 
seeds should be included in this exemption, as this is a common way 
plants enter the horticultural trade.
    Our Response: Cuttings are a common way plants enter the 
horticultural trade, and plants grown from legally obtained cuttings 
might logically be allowed under this same exemption. Unfortunately, 
this oversight can only be corrected by amending the Act or its 
implementing regulations. If necessary and consistent with species 
conservation, it is possible to exempt cuttings of threatened species 
in a manner similar to seeds of cultivated specimens by preparing a 
special rule under section 4(d) of the Act.
    Issue 4: One comment letter stated that ``* * * because many of the 
populations occur on public land in late successional forests, which 
are still subject to industrial extraction and other development that 
could impact the species * * * and many of the private-land populations 
may be subject to projects with Federal implications * * * critical 
habitat is surely prudent and determinable at this time.''
    Our Response: In the more than 14 years since this species was 
listed, no Federal project or federally permitted project has had a 
significant impact on this species. The NPS, through its own 
regulations and in accordance with the Act, is unlikely to have a 
project ever result in significant impacts to Scutellaria montana. 
Similarly, the TVA has been a leader in the recovery of this plant, 
having implemented various protective measures, management techniques, 
and surveys for additional populations. The TVA is currently discussing 
with the Service, in both Tennessee and Georgia, and other stakeholders 
the possibility of entering into a cooperative agreement to promote the 
further recovery of this species. Further, more than half of the known 
plants and most of the largest population are on land owned by the 
Tennessee River Gorge Trust, a conservation organization that has also 
been instrumental in protecting this species. Although timber-
harvesting activities continue to threaten the species, since listing, 
no population of large-flowered skullcap has been lost to timber-
harvesting. Because (1) critical habitat designation would not result 
in substantial benefits to the species, (2) there is currently a large 
backlog of listed species without critical habitat designation--many of 
which would benefit more from critical habitat designation than this 
species, and (3) the status of this species is currently improving, we 
believe our limited funding available for critical habitat designation 
should be spent on critical habitat designations for species for which 
such designation would provide more benefit. Furthermore, we expect 
that all of the appropriation to be made available for critical habitat 
designation in the near future will be used to comply with existing 
court orders and settlement agreements. Therefore, we are not proposing 
to designate critical habitat for Scutellaria montana at this time.

Summary of Factors Affecting the Species

    Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations 
promulgated to implement the listing provisions of the Act (50 CFR Part 
424) set forth five criteria to be used in determining whether to add, 
reclassify, or remove a species from the Federal List of Endangered and 
Threatened Wildlife and Plants. These factors and their application to 
Scutellaria montana (large-flowered skullcap) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range.

    In 1986, when Scutellaria montana was listed as endangered, 7 
populations were known in Georgia and 3 in Tennessee. Over 90 percent 
of the 7,000 individual plants known in 1986 occurred at only 2 sites, 
neither of which was completely protected. At the time of listing, the 
most significant threats were logging, wildfires, livestock grazing, 
and residential development. In 1986, 80 percent of the site with the 
largest known population had been subdivided and was being offered for 
sale. A large portion of the second largest population at that time was 
on land owned by TNC and was therefore afforded protection. The third 
largest population occurred on privately owned land and had no 
protection from potential land-use changes. All remaining 1986 
populations were extremely small, consisting of 4 to 60 plants.
    Though this species is under less threat than when listed, largely 
due to

[[Page 1666]]

the discovery of additional populations, and 22 (46 percent) of the 48 
known populations are currently being afforded protection through 
ownership by conservation organizations, county parks, historic sites, 
or Federal land (11 of these protected populations are considered self-
sustaining), threats to the species' habitat and future security still 
exist. Further, nearly 80 percent of the known plants continue to occur 
at only two sites in the Tennessee River Gorge population.
    Habitat destruction caused by logging, residential development, 
clearing of wooded areas for pasture, grazing, and wildfire all 
continue to pose some degree of threat to the species. Prior to 
listing, one population of Scutellaria montana was lost due to 
clearcutting activities (prior to the landowner becoming aware of the 
presence of Scutellaria montana on the property). Damage caused by off-
road vehicles and hikers (trampling) has been noted at several sites, 
and the maintenance (widening) or rerouting of hiking trails is also a 
potential threat. Rapid urbanization in and around the Chattanooga area 
also poses a threat.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    When Scutellaria montana was listed as an endangered species 
(1986), it was not a significant component of the commercial trade in 
native plants. During the comment period for this rule, the Georgia 
Department of Natural Resources informed us that ``there is at least 
one named cultivar of this species ready to be placed in commercial 
trade.'' However, both Tennessee and Georgia have provisions in their 
respective State agencies to require permitting as needed for all in-
State commerce. Except for seeds of cultivated origin, inter-State 
commerce, import, and export are prohibited for threatened species. We 
know of no reason to believe that trade in accordance with the 
provisions for protection of threatened species or any other type of 
current or future utilization pose an appreciable risk to wild 
populations of Scutellaria montana.

C. Disease or Predation

    While herbivory by animals, especially deer, has been observed at 
several sites, herbivory does not appear to be a factor affecting the 
continued existence of the species at this time. Some individual plants 
have been affected by disease, but this factor appears to affect only a 
few individuals and is not a threat to the species.

D. The Inadequacy of Existing Regulatory Mechanisms

    Though there is less protection afforded to threatened plants than 
to endangered plants under section 9 of the Act, most of the legal 
protections conferred under the ESA will remain in place following 
final reclassification of Scutellaria montana. Both Georgia (Ga. Code 
Ann. Secs. 27-3-130 et seq.) and Tennessee (Tenn. Code Ann. Secs. 70-8-
301 et seq.) have rare plant protection laws that also protect this 
species. Georgia has separate laws covering endangered plant and animal 
species. (Ga. Code Ann. Secs. 27-3-130 et seq.; Secs. 12-6-171 et seq.) 
Listing under both acts is limited to scientific and commercial 
criteria. Habitat acquisition is authorized but not required. The acts 
do not require recovery plans or agency consultation. Violations 
constitute a misdemeanor. In addition, the Georgia Environmental Policy 
Act requires the assessment of major proposed agency impacts on 
biological resources. (Ga. Code Ann. Sec. 12-16-1 et seq.)
    In Tennessee, the Rare Plant Protection and Conservation Act 
authorizes investigation, listing, and education efforts. (Tenn. Code 
Ann. Secs. 70 8-301 et seq.) Listing is based on scientific and 
commercial data only. The act cannot be used to interfere with, delay, 
or impede any public works project. Penalties include fines up to 
$1,000 and/or imprisonment of up to six months. Tennessee does not have 
an ``environmental protection act.'' However, by statute, any person or 
agency planning an energy project must submit an analysis of the 
environmental impacts of the project. (Tenn. Code Ann. Sec. 13-18-103) 
In addition, any person conducting oil and gas activities must prevent 
or mitigate adverse environmental impacts. (Tenn. Code Ann. Sec. 60-1-
202) Tennessee has private land conservation programs. For example, 
conservation easements are authorized by statute. (Tenn. Code Ann. 
Secs. 66-9-301 et seq.) Owners of land subject to a conservation 
easement are not liable for injury to a third person using the land. 
(Tenn. Code Ann. 
Sec. 11-10103) A Forest Stewardship Program assists private landowners 
with conservation issues. In addition, the Tennessee Biodiversity 
Program encourages private landowners to protect critical areas. While 
considerable progress has been made towards recovery of Scutellaria 
montana under these regimes, some threats, such as habitat 
modification, remain sufficiently serious that the species still 
requires protection under the Act until the number of total and 
protected populations can be further increased. Such additional 
increases in the total number of populations, particularly those under 
protection, may sufficiently reduce the risk of extinction, even under 
these current State laws, that concerns under Factor D are no longer an 
obstacle to delisting Scutellaria montana.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Scutellaria montana appears to be quite sensitive to the amount of 
light available. To the extent that human activities facilitate the 
growth of non-native, invasive species, such as Japanese honeysuckle 
(Lonicera japonica) and privet (Ligustrum vulgare), competition with 
these species for light currently remains a problem for some 
populations of Scutellaria montana. These nonnative species are likely 
to continue to be a problem where disturbance allows these species to 
become established in close proximity to Scutellaria montana.
    Several investigators have noted a low reproductive capacity for 
Scutellaria montana. The percentage of flowers that form fruit has been 
recorded at 30 and 44 percent in the Marshall Forest (Kemp and Knauss 
1990), and in another study, 91.5 percent of the plants did not form 
fruits (Kemp 1987). This reproductive rate is extremely low compared 
with other Scutellaria species that have 75 to 93 percent of the 
flowers producing mature nutlets (Collins 1976).
    Scutellaria montana also produces fewer seeds per fruit compared 
with other members of the genus. Kemp and Knauss (1990) found that the 
fruit averaged 2.2 to 2.3 seeds rather than the 4 seeds that are 
possible. Similarly, Cruzan (in Shea and Hogan 1998) found pollen 
present on 60 percent of the styles, but only 15 percent of these 
flowers set fruit, with an average of two seeds per fruit. As mentioned 
previously, the long floral tube and a sucrose-hexose ratio near 50 
percent (Cruzan and Case, in prep.) are indicative of a historical 
association with moths or long-tongued bees as the primary pollinator 
(Baker and Baker 1979, Southwick 1992, Kearns and Inouye 1993). 
However, after several hundred hours of observations over 4 years, 
Cruzan and Hopkins (in prep.) found these pollinators appeared to be 
rare or lacking and believed that the low seed production is largely 
because of the lack of pollen deposition on stigmas (Cruzan and 
Hopkins, in prep.), indicating a possible loss of, or decline in, an 
associated pollinator(s). The 
loss/decline of an associated pollinator, particularly one able to 
travel relatively

[[Page 1667]]

long distances, could also explain the apparent inbreeding noted at 
smaller and more isolated populations of this self-compatible species 
(Cruzan and Vege, in prep.).
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by Scutellaria montana in determining this final rule. Based on 
this evaluation, the preferred action is to reclassify Scutellaria 
montana from an endangered species to a threatened species. The 
recovery plan for Scutellaria montana states that the species is 
qualified for downlisting to threatened: ``* * * If numbers of discrete 
populations increase to 25 (because of the discovery/establishment of 
additional populations) or the number of protected and managed self-
sustaining populations becomes 10 or more (distributed throughout the 
known geographic range) * * * '' The criteria for downlisting have been 
met through both the number of known populations (48) and the number of 
viable (self-sustaining), protected populations (11) distributed 
between both States in the species' range.

Available Conservation Measures

    All of 23 populations of Scutellaria montana and a portion of 9 
others are privately owned (all of 1 population and a portion of 2 
others are owned by conservation groups, accounting for nearly 43 
current page percent of all plants), 1 is County-owned, a portion of 1 
is City-owned, and 1 entire population and a portion of 5 others are 
State-owned. State-owned land harbors more than 40 percent of the known 
plants, second only to the number owned by conservation organizations. 
In addition, 10 entire populations and portions of 3 others are on 
Federal land (TVA, NPS, and Department of Defense [U.S. Army]).
    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. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies, groups, 
and individuals. The protection required of Federal agencies and the 
prohibitions against taking and harm are discussed, in part, below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. If a Federal action may affect a listed species or its 
critical habitat, the responsible Federal agency must enter into formal 
consultation with the Service.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all threatened 
plants. However, unlike endangered plants, not all prohibitions of 
section 9(a)(2) of the Act, implemented by 50 CFR 17.67, apply. 
However, section 4(d) of the Act allows for the provision of such 
protection to threatened species through regulation. This protection 
may apply to this species in the future if regulations are promulgated. 
Those prohibitions that do apply to threatened plants, in part, make it 
illegal for any person subject to the jurisdiction of the United States 
to import or export, transport in interstate or foreign commerce in the 
course of a commercial activity, sell or offer for sale in interstate 
or foreign commerce, or remove and reduce the species to possession 
from areas under Federal jurisdiction. Seeds from cultivated specimens 
of threatened plants are exempt from these prohibitions (50 CFR 17.71) 
provided their containers are marked ``Of Cultivated Origin.'' Certain 
exceptions to the prohibitions apply to agents of the Service and State 
conservation agencies.
    The Act and 50 CFR 17.72 also provide for the issuance of permits 
to carry out otherwise prohibited activities involving threatened 
plants under certain circumstances. Such permits are available for 
scientific purposes and to enhance the propagation or survival of the 
species. For threatened plants, permits are also available for 
botanical or horticultural exhibition, educational purposes, or special 
purposes consistent with the purposes of the Act. We anticipate that 
few trade permits would ever be sought or issued because the species is 
not a common cultivar or common in the wild.
    Questions regarding whether specific activities will constitute a 
violation of section 9 should be directed to the Field Supervisors of 
either the Service's Athens Field Office, U.S. Fish and Wildlife 
Service, 247 South Milledge Avenue, Athens, Georgia 30605 (Phone 706/
613-9493), or the Cookeville Field Office, U.S. Fish and Wildlife 
Service, 446 Neal Street, Cookeville, Tennessee 38501 (Phone 931/528-
6481). Requests for copies of regulations regarding listed species and 
inquiries about prohibitions and permits may be addressed to the U.S. 
Fish and Wildlife Service, Ecological Services Division, 1875 Century 
Boulevard, Atlanta, Georgia 30345 (Phone 404/679-4176; Fax 
404/679-7081).
    This rule changes the status of Scutellaria montana at 50 CFR 17.12 
from endangered to threatened. This rule formally recognizes that this 
species is no longer in imminent danger of extinction throughout all or 
a significant portion of its range. Reclassification maintains most of 
the protections for this species under the Act. Anyone importing or 
exporting, transporting in interstate or foreign commerce in the course 
of a commercial activity, selling or offering for sale in interstate or 
foreign commerce, or removing and reducing the species to possession 
from areas under Federal jurisdiction will be subject to a penalty 
under section 11 of the Act. Although less than those for endangered 
species, substantial penalties apply to illegal take of threatened 
species. Federal agencies will continue to be responsible for ensuring 
that their activities are not likely to jeopardize the continued 
existence of Scutellaria montana, as prescribed by section 7 of the 
Act.
    This final rule is not an irreversible action on the part of the 
Service. Reclassifying Scutellaria montana back to endangered status is 
possible should changes occur in management, habitat, or other factors 
that alter the species' status or increase threats to its survival.

Paperwork Reduction Act

    This final rule does not contain any new collections of information 
other than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance number 1018-0094. An agency may not conduct or sponsor, and a 
person is not required to respond, to a collection of information, 
unless it displays a currently valid control number. For additional 
information concerning permits and associated requirements for 
threatened species, see 50 CFR 17.72.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment or Environmental Impact Statement, as defined by the 
National Environmental Policy Act of 1969, in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

References Cited

Baker, H. G., and I. Baker. 1979. Sugar rations in nectar. 
Phytochemical

[[Page 1668]]

Bulletin 12:43-45. In M. B. Cruzan and S. Vega. In prep. Population 
Size and Fragmentation Thresholds for the Maintenance of Genetic 
Diversity in the Endemic Scutellaria montana (Lamiaceae).
Bridges, E. 1984. Unpublished field data on Scutellaria montana.
Chapman, A. W. 1878. An enumeration of some plants--chiefly from the 
semitropical regions of Florida--which are either new or which have not 
hitherto been recorded as belonging to the Southern States. Bot. Gaz. 
3:2-6, 9-12, 17-21.
Collins, J. L. 1976. A revision of the annulate Scutellaria (Labiatae). 
Ph.D. Dissertation. Vanderbilt Univ., Nashville, Tennessee. 249 pp.
Collins, J. L. Unpublished manuscript. The Taxonomy, Distribution, and 
Rarity of Scutellaria montana Chapm. (Lamiaceae).
Cruzan, M. B., and J. Ferguson. In prep. Patterns of chloroplast DNA 
and allozyme variation in the herbaceous endemic, Scutellaria montana.
Cruzan, M. B., and S. B. Hopkins. In prep. Annual size oscillations in 
Scutellaria montana: a consequence of selection for large inflorescence 
size?
Cruzan, M. B., and S. Vega. In prep. Population Size and Fragmentation 
Thresholds for the Maintenance of Genetic Diversity in the Endemic 
Scutellaria montana (Lamiaceae).
Epling, C. 1942. The American Species of Scutellaria montana. Univ. of 
California Publ. Bot. 20(1):1-146.
Fail, J., Jr., and R. Sommers. 1993. Species associations and 
implications of canopy change for an endangered mint in a virgin oak-
hickory-pine forest. J. Elisha Mitchell Soc. 109(1):51-54.
Faulkner, J. 1993. A Survey of Scutellaria montana in the Hick's Gap 
Area of Marion County, Tennessee. 22 pp.
Kearnes, C., and D. Inouye. 1993. Techniques for Pollination Biologist. 
University of Colorado Press, Niwot. In M. B. Cruzan and S. Vega. In 
prep. Population Size and Fragmentation Thresholds for the Maintenance 
of Genetic Diversity in the Endemic Scutellaria montana (Lamiaceae).
Kemp, A. C. 1987. Showy but not very sexy. Tipularia 1(2):28-30.
Kemp, A. C., and M. Knauss. 1990. Intensive monitoring of Scutellaria 
montana Chapman in the Marshall Forest: A Proposal to The Nature 
Conservancy. Unpublished.
Leonard, E. C. 1927. The North American species of Scutellaria. 
Contributions from the United States National Herbarium 22:703-745. 22 
pp.
Lipps, L. 1966. Plant Communities of a Portion of Floyd County, 
Georgia--Especially the Marshall Forest. Ph.D. Dissertation, University 
of Tennessee. Knoxville, Tennessee.
Lipps, E. L., and H. R. DeSelm. 1969. The vascular flora of the 
Marshall Forest, Rome, Georgia. Castanea 34(4):414-432.
McKerrow, A., and M. Pyne. 1993. Survey of Scutellaria montana (Large-
flowered Skullcap) on Lookout Mountain, Chickamauga-Chattanooga 
National Military Park. Report to the Southeast Regional Office of The 
Nature Conservancy. 13 pp.
Nix, T. L. 1993. Intensive monitoring of Scutellaria montana Chapman in 
the Marshall Forest. Unpublished manuscript, The Nature Conservancy, 
Georgia Field Office.
Penland, C. W. 1924. Notes on North American Scutellarias. Rhodora 
26:62-79.
Shea, A., and T. Hogan. 1998. Draft status survey report on Scutellaria 
montana Chapman for the U.S. Fish and Wildlife Service, Asheville, 
North Carolina. 98 pp.
Southwick, E. E. 1992. Nectar biology and pollinator attraction in the 
north temperate climate. In M. B. Cruzan and S. Vega. In prep. 
Population Size and Fragmentation Thresholds for the Maintenance of 
Genetic Diversity in the Endemic Scutellaria montana (Lamiaceae).
Tennessee Natural Heritage Program. No date. Species and site files. 
Tennessee Department of Environment and Conservation. Nashville, 
Tennessee.
U.S. Fish and Wildlife Service. 1996. Large-flowered Skullcap 
(Scutellaria montana) Recovery Plan. Atlanta, Georgia. 31 pp.

Author

    The primary author of this final rule is Mr. J. Allen Ratzlaff (See 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Amend part 17, subchapter B of Chapter I, title 50 of the Code of 
Federal Regulations, as set forth below:

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500 (1986), unless otherwise 
noted.


    2. Amend Sec. 17.12(h) by revising the entries for Scutellaria 
montana under ``FLOWERING PLANTS'' in the ``Status'' column to read 
``T'' instead of ``E'' and in the ``When Listed'' column to read ``234, 
720''.

    Dated: November 15, 2001.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 02-665 Filed 1-11-02; 8:45 am]
BILLING CODE 4310-55-P