[Federal Register Volume 68, Number 106 (Tuesday, June 3, 2003)]
[Proposed Rules]
[Pages 33058-33089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13509]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI74


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Arabis perstellata (Braun's Rock-cress)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and notice of document availability.

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SUMMARY: We, the Fish and Wildlife Service (Service), determine that 
critical habitat is prudent and propose to designate critical habitat 
for the Arabis perstellata (Braun's rock-cress), an endangered species 
listed under the Endangered Species Act of 1973, as amended (Act). We 
propose 20 specific geographic areas (units) in Kentucky (17 units) and 
Tennessee (3 units) as critical habitat for Arabis perstellata. These 
units encompass approximately 408 hectares (ha) (1,008 acres (ac)). 
Kentucky has approximately 328 ha (810 ac) and Tennessee has 
approximately 80 ha (198 ac) proposed as critical habitat for Arabis 
perstellata.
    Critical habitat identifies specific areas that are essential to 
the conservation of a listed species, and that may require special 
management considerations or protection. If this proposal is made 
final, section 7(a)(2) of the Act requires that Federal agencies ensure 
that actions they fund, permit, or carry out are not likely to result 
in the destruction or adverse modification of critical habitat. The 
regulatory effect of the critical habitat designation does not extend 
beyond those activities funded, permitted, or carried out by Federal 
agencies. State or private actions with no Federal involvement are not 
affected.
    Section 4 of the Act requires us to consider the economic and other 
relevant impacts of specifying any area as critical habitat. We hereby 
solicit data and comments from the public on all aspects of this 
proposal, including data on the economic and other impacts of the 
designation. We have conducted an analysis of the economic impacts of 
designating these areas as critical habitat and are announcing its 
availability for public review. That economic analysis has been 
conducted in a manner that is consistent with the ruling of the 10th 
Circuit Court of Appeals in N.M. Cattle Growers Ass'n v. USFWS.

DATES: We will consider comments received by August 4, 2003. We must 
receive requests for public hearings, in writing, at the address shown 
in the ADDRESSES section by July 18, 2003.

ADDRESSES: If you wish to comment on this proposed rule and/or the 
draft economic analysis, you may submit your comments by any one of 
several methods:
    1. You may submit written comments and information to the Field 
Supervisor, U.S. Fish and Wildlife Service, 446 Neal Street, 
Cookeville, TN 38501.
    2. You may hand-deliver written comments to our Tennessee Field 
Office at the above address or fax your comments to 931/528-7075.
    3. You may send comments by electronic mail (e-mail) to [email protected]. For directions on how to submit electronic filing of 
comments, see the ``Public Comments Solicited'' section.

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

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal be as 
accurate and as effective as possible. Therefore, we solicit comments 
or suggestions from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning this proposed rule and its associated draft economic 
analysis. We are particularly interested in comments concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section

[[Page 33059]]

4 of the Act, including whether the benefits of designation will 
outweigh any threats to the species resulting from designation;
    (2) Specific information on the amount and distribution of Arabis 
perstellata and its habitat, and which habitat is essential to the 
conservation of this species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    (5) Economic and other values associated with designating critical 
habitat for Arabis perstellata such as those derived from 
nonconsumptive uses (e.g., hiking, camping, birdwatching, enhanced 
watershed protection, improved air quality, increased soil retention, 
``existence values,'' and reductions in administrative costs);
    (6) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments; and
    (7) The inclusion into final critical habitat of the two recently 
identified populations of Arabis perstellata, and any foreseeable 
economic or other impacts resulting from including the areas 
encompassing these two new populations into designated critical 
habitat.
    If you wish to comment on this proposed rule and/or the draft 
economic analysis, you may submit your comments and materials 
concerning this proposal and its associated draft economic analysis by 
any one of several methods (see ADDRESSES). Comments submitted 
electronically should be in the body of the e-mail message itself or 
attached as a text file (ASCII), and should not use special characters 
or encryption. Please also include ``Attn: Braun's rock-cress,'' your 
full name, and your return address in your e-mail message. Our practice 
is to make comments, including names and home addresses of respondents, 
available for public review during regular business hours. Respondents 
may request that we withhold their home address, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold a respondent's identity, as allowable by law. If you 
wish for us to withhold your name and/or address, you must state this 
request prominently at the beginning of your comment. However, we will 
not consider anonymous comments. To the extent consistent with 
applicable law, we will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public inspection in their entirety. Comments and materials 
received will be available for public inspection, by appointment, 
during normal business hours at the Ecological Services Office in 
Cookeville, Tennessee (see ADDRESSES).
    Copies of the proposed rule, draft economic analysis, and 
information regarding this proposed critical habitat designation are 
available on the Internet at http://cookeville.fws.gov.

Background

    Arabis perstellata (Braun's rock-cress) is a perennial herb of the 
mustard family (Brassicaceae). It was originally described by E. Lucy 
Braun (1940) from specimens collected between 1936 and 1939 in Franklin 
County, Kentucky. In 1956, Braun described the growth habits of Arabis 
perstellata. This species has round stems and alternate leaves. The 
stems and foliage have a grayish coloration due to the large quantity 
of hairs. The stems arise from horizontal bases and grow up to 80 
centimeters (cm) (31.5 inches (in)) long, often drooping from rock 
ledges. Each year, a circular cluster of leaves radiating from the 
center is produced close to the ground, and new flowering branches 
emerge from the old cluster of the previous season. The lower leaves 
vary from 4 to 15 cm (1.6 to 6.0 in) long and are obovate (egg-shaped) 
to lanceolate (lance-shaped), with the broad end at the top. The lower 
leaves also have slightly toothed margins and are cut to the midrib. 
The upper leaves are smaller--up to 3.5 cm (1.4 in) long--and have 
relatively rounded ends that are widest at or about the middle, but 
then taper to a lance shape, with the broad end at the top. The upper 
leaves also have coarse teeth along their margins. Both surfaces of the 
leaves are covered in starlike hairs. The flowering section of the 
plant is elongated, with numerous stalked flowers. The flowers have 
four petals that are 3 to 4 millimeters (mm) (0.12 to 0.16 in) long, 
are white to lavender, and have four pale green sepals that are 2 to 3 
mm (0.08 to 0.12 in) long. There are six stamens, with two shorter than 
the other four. The ovary is elongate and two-chambered, and develops 
into an elongated fruit, much longer than it is broad. Fruiting stalks 
are about 1 cm (0.4 in) long at maturity; the fruits are up to 4 cm 
(1.6 in) long and are covered with both simple and starlike hairs. 
Flowering occurs from late March to early May. Fruits mature from mid-
May to early June. The oblong seeds are reddish brown, somewhat 
flattened, about 1 mm (0.04 in) long, and in places minutely hairy 
(Jones 1991). Plants are reported to live up to 5 years (Jones 1991).
    Although varieties of this species are not recognized in recent 
taxonomic treatments (Rollins 1993), in the past, two varieties were 
distinguished based on size and degree of pubescence (Rollins 1960). 
The formerly recognized varieties are also geographically separated, 
with the larger variety (Arabis perstellata var. ampla) occurring in 
Tennessee and the smaller variety (Arabis perstellata var. perstellata) 
occurring in Kentucky (Rollins 1993; Kentucky State Nature Preserves 
Commission (KSNPC) 1996a). While the final rule for the determination 
of endangered status for this species recognized the two varieties, 
these two varieties are no longer recognized by the scientific 
community. Consequently, we will treat the plants that occur in both 
geographically separated areas as one species (Arabis perstellata) for 
the purpose of designating critical habitat.
    Arabis perstellata is presently known from 41 populations in two 
separate sections of the Interior Low Plateaus Physiographic Province--
the Blue Grass Section (Kentucky) and the Central Basin Section 
(Tennessee). Both areas where this species is found are predominantly 
underlain by sediments of Ordovician age (510-438 million years ago) 
(Quarterman and Powell 1978). The Kentucky populations occur in 
Franklin, Henry, and Owen Counties along the Kentucky River and its 
tributaries (primarily Elkhorn Creek). The Tennessee populations occur 
in Davidson and Rutherford counties, principally along the Stones 
River, but also along the Cumberland River several miles downstream of 
the Stones River confluence.
    Arabis perstellata occurs on slopes composed of calcium carbonate, 
calcium, or limestone in moderately moist to almost dry forests. The 
occurrence of this species does not appear to be limited to a 
particular slope, aspect, elevation, or moisture regime within the 
slope forests. The plants survive in full shade or filtered light, but 
are not found in full sunlight (Jones 1991). The largest and most 
vigorous populations occur on moist mid- to upper-slope sites. Plants 
are often found around rock outcrops, in protected sites on the 
downslope side of

[[Page 33060]]

tree bases, and in sites of natural disturbance with little 
competition, such as a sloping mass of rock debris at the base of a 
cliff or on animal trails. The plants have a well-developed system of 
rootstocks that allow them to persist in these inhospitable sites. 
Sometimes the plants display a weedy tendency, colonizing recent road 
cuts or animal paths through the woodlands. The plants are rarely found 
growing among the leaf litter and herbaceous cover of the forest floor.
    Within the Bluegrass Section of the Interior Low Plateaus in 
Kentucky, the Lexington Limestone Formation is common on the slopes 
entrenched by the Kentucky River and its major drainages (McDowell 
1986). All but one of the Kentucky populations of Arabis perstellata 
are found on the Grier and Tanglewood members (laterally continuous 
distinct layers within a rock formation) of this formation. The 
exception is the population in Henry County, Kentucky, occurring on 
what is mapped as Kope and Clays Ferry members that have a higher shale 
component (Service 1997). However, the plants actually occur on 
limestone outcrops at this site similar to those occupied by the 
populations found in the Grier and Tanglewood members.
    In Tennessee, Arabis perstellata sites are restricted to the 
Central Basin Section, which, like the Blue Grass Section, is underlain 
by Ordovician limestones. The primary rocks of the Arabis perstellata 
populations in Davidson County are Lebanon and Carters Limestone, while 
the sites in Rutherford County are characterized by Leipers and Catheys 
Limestone, as well as Bigby-Cannon Limestone (Wilson 1965, 1966a, 
1966b).
    The soils at Arabis perstellata sites are limestone-derived, with a 
rock outcrop component usually present in the soil complex. A clay 
subsoil is also common, but a notable difference is the acidity of the 
Tennessee soils (True et al. 1977) compared with the neutral to 
moderately alkaline Kentucky soils (Jones 1991; McDonald et al. 1985). 
The soils at the Tennessee sites are Mimosa-Rock outcrop complexes 
(True et al. 1977). The Kentucky sites contain Fairmont-Rock outcrop 
complexes and Eden flaggy silty clay (McDonald et al. 1985). The 
majority of the Arabis populations in Kentucky occur on Fairmont soils.
    Common canopy trees of the slope forests where Arabis perstellata 
occurs are Acer saccharum (sugar maple), Quercus muhlenbergii 
(chinquapin oak), Celtus occidentalis (hackberry), and Aesculus glabra 
(Ohio buckeye). Jones (1991) listed the native herbaceous species that 
are most indicative of Arabis perstellata habitat as Saxifraga 
virginiensis (early saxifrage), Sedum pulchellum (stonecrop), Arabis 
laevigate (smooth rock-cress), Draba ramosissima (branched 
whitlowgrass), Phacelia bipinnatifida (forest phacelia), Asplenium 
rhizophyllum (walking fern), Pellaea atropurpurea (purple cliff-brake), 
and Heuchera sp. (alum root). These herbaceous species are all common 
forest forbs (flowering plants) in Kentucky and Tennessee, with the 
exception of Draba ramosissima, which is rare in Tennessee.
    The only nonnative species which appears to be an important part of 
the Arabis perstellata plant community is Alliaria petiolata (European 
garlic mustard). Disturbed forests are most susceptible to rapid 
Alliaria petiolata invasion, and disrupted soil is most suitable for 
its establishment (Nuzzo 1991). This species competes directly with 
Arabis perstellata for areas of natural disturbance once it has become 
established in a forest. Management schemes for the control of Alliaria 
petiolata are being tested, but the species continues to spread into 
natural areas. This species poses a severe threat to Arabis 
perstellata.
    Arabis perstellata is never a common component of the ground flora. 
It usually occurs in small groups (especially around rock outcrops) or 
as scattered individuals. The small size of the populations, the 
species' specialized habitat, and its apparent inability to expand into 
available or similar habitats suggests that it is a poor competitor. 
This inability to compete has likely limited its distribution and 
abundance. This species cannot withstand vigorous competition from 
invasive weeds or even native herbaceous species.
    This species is most likely pollinated by insects, but we do not 
know nor do we know whether Arabis perstellata is self-fertile. Jones 
(1991) assumed that the plants are pollinated by insects, most likely 
by small flies and bees. Seed dispersal is likely occurring through 
wind or gravity rather than animal movements, as this species has no 
specific morphological (structural) mechanisms such as hooks or burs 
for seed dispersal. Seeds are probably most commonly dispersed 
downslope. Jones (1991) suggested that plants in the stable upper 
slopes (usually among the rock outcropping at a slope break) may be 
supplying seeds to chronically eroded areas below.
    Arabis perstellata produces viable seeds, and plants can easily be 
grown from seeds under greenhouse conditions (Service 1997). It is not 
known whether the plant depends on a seed bank (seeds in the soil from 
previous seasons) to take advantage of opportunities for seed 
germination and establishment. Bloom (1988) found that seeds of Arabis 
laevigata, a biennial rock-cress co-occurring with Arabis perstellata, 
remained germinable for several years and found evidence of a seed 
bank. Bloom (1988) also found that the presence of leaf litter 
suppressed germination in Arabis laevigata. Considering the similar 
habitat of the two species, it is reasonable to infer that leaf litter 
may also affect germination of Arabis perstellata. In several of the 
larger populations in Kentucky, the species occurs mostly in areas 
cleared of herbaceous vegetation and leaf litter by past colluvial 
slippage. It appears that the lack of leaf litter is likely a 
requirement for seed germination or seedling survival. The factors 
affecting seedling establishment are not known, nor is it known whether 
seed production changes in different environments.
    The majority of the land containing Arabis perstellata populations 
is in private ownership. One site (Clements Bluff) in Kentucky is owned 
by the State and is part of the Kentucky River Wildlife Management 
Area. This publically owned site is under no formal management 
agreement at this time. One privately owned site, Strohmeiers Hills in 
Kentucky, is under a management agreement with the Kentucky Natural 
Heritage Program. Management activities include sediment and noxious 
weed control. The agreement is nonbinding and does not restrict the 
property owner's activities or property rights. Thus, the only 
protection granted by the management agreement is habitat enhancement.
    The primary threats to this species are alteration or loss of 
habitat through development (primarily home and road construction), 
competition with native and exotic weedy species, grazing and 
trampling, and timber harvesting. Arabis perstellata is vulnerable to 
extinction because of its very small range, low abundance, and 
declining number of populations. Thirty-seven extant populations are 
known in Kentucky and four in Tennessee. The full range of this species 
in Kentucky is an approximately 518-square-kilometer (km2) 
(200-square-mile (mi2)) area, with four disjunct populations 
in Tennessee. This narrow range makes the species vulnerable to 
potential catastrophic phenomena, such as disease, extreme weather, and 
insect infestations. Also, population levels are declining (Deborah 
White, KSNPC, pers. comm. 2003). Eight sites previously known in 
Kentucky were found to be extirpated during a 1996 survey (KSNPC

[[Page 33061]]

1996a). Four historical populations in Tennessee are presumed 
extirpated (Jones 1991; Tennessee Department of Environment and 
Conservation (TDEC) 2000).

Previous Federal Action

    Federal government actions on this species began with passage of 
section 12 of the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
seq.). Please refer to the final listing rule for a complete 
description of Federal actions concerning this species between the 
inception of the Act and the proposed listing rule in 1994.
    On January 3, 1994, we published a rule in the Federal Register (59 
FR 53) proposing to list Arabis perstellata (inclusive of the two 
varieties, Arabis perstellata var. ampla and Arabis perstellata var. 
perstellata) as endangered. In that proposed rule, we had made a 
determination that designation of critical habitat was not prudent 
because such a designation would not be beneficial to the species, but 
rather could further threaten the species. On January 3, 1995 (60 FR 
56), we published our final rule to list Arabis perstellata as 
endangered. In the final rule, consistent with our determination in the 
proposed rule, we found that a critical habitat designation was not 
prudent.
    On July 22, 1997, we finalized the Arabis perstellata Recovery Plan 
(Service 1997). The recovery plan established the criteria that must be 
met prior to the delisting of Arabis perstellata. The recovery plan 
also identified the actions that are needed to assist in the recovery 
of Arabis perstellata.
    On October 12, 2000, the Southern Appalachian Biodiversity Project 
filed suit against us, challenging our not prudent critical habitat 
determinations for Arabis perstellata and 15 other federally listed 
species (Southern Appalachian Biodiversity Project v. U.S. Fish and 
Wildlife Service, Babbitt, & Clark (CN 2:00-CV-361 (E.D. TN))). On 
November 8, 2001, the District Court of the Eastern District of 
Tennessee issued an order directing us to reconsider our previous 
prudency determinations and submit a new prudency determination and 
proposed critical habitat designation, if prudent, for Arabis 
perstellata to the Federal Register no later than May 26, 2003, and a 
final decision not less than twelve months after the new prudency 
determination.
    This proposal is the product of our reevaluation of our 1995 
determination that critical habitat designation for Arabis perstellata 
was not prudent. It reflects our interpretation of recent judicial 
opinions on critical habitat designation and the standards placed on us 
for making a prudency determination. If additional information becomes 
available on the species' biology and distribution, and on threats to 
the species, we may reevaluate this proposal to designate critical 
habitat, including proposing additional critical habitat, proposing the 
deletion or boundary refinement of existing proposed critical habitat, 
or withdrawing our proposal to designate critical habitat.

Critical Habitat Disclaimer

    Designation of critical habitat provides little additional 
protection to species. In 30 years of implementing the Act, we have 
found that the designation of statutory critical habitat provides 
little additional protection to most listed species, while consuming 
significant amounts of scarce conservation resources. The present 
system for designating critical habitat has evolved since its original 
statutory prescription into a process that provides little real 
conservation benefit, is driven by litigation rather than biology, 
forces decisions to be made before complete scientific information is 
available, consumes enormous agency resources that would otherwise be 
applied to actions of much greater conservation benefit, and may impose 
large social and economic costs. We believe that rational public policy 
demands serious attention to this issue in order to allow our limited 
resources to be applied to those actions that provide the greatest 
benefit to the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987. Env. Manage.11(4):429-437) 
stated, ``Because the ESA can protect species with and without critical 
habitat designation, critical habitat designation may be redundant to 
the other consultation requirements of section 7.'' Currently, only 306 
species or 25 percent of the 1,211 listed species in the U.S. under the 
jurisdiction of the Service have designated critical habitat. We 
address the habitat needs of all 1,211 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
section 4 recovery planning process, the section 9 protective 
prohibitions of unauthorized take, section 6 funding to the States, and 
the section 10 incidental take permit process. We believe that it is 
these measures that may make the difference between extinction and 
survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    With a budget consistently inadequate to fund all of the petition 
review, listing determinations, and critical habitat designation duties 
required of us by statute, we have in the past prioritized our efforts 
and focused our limited resources on adding species in need of 
protection to the lists of threatened or endangered species. We have 
been inundated with lawsuits for our failure to designate critical 
habitat, and we face a growing number of lawsuits challenging critical 
habitat designations once they are made. These lawsuits have subjected 
us to an ever-increasing series of court orders and court-approved 
settlement agreements, compliance with which now consumes nearly the 
entire listing program budget. This leaves us with little ability to 
prioritize our activities to direct scarce listing resources to the 
listing program actions with the most biologically urgent species 
conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, our own proposals to list critically 
imperiled species, and final listing determinations on existing 
proposals are significantly delayed. Litigation over critical habitat 
issues for species already listed and receiving the Act's full 
protection has precluded or delayed many listing actions nationwide.
    The accelerated schedules of court-ordered designations have left 
us with almost no ability to provide for adequate public participation 
or ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals due to the risks associated with 
noncompliance with judicially-imposed deadlines. This in turn fosters a 
second round of litigation in which those who fear adverse impacts from 
critical habitat designations challenge those designations. The cycle 
of litigation appears endless, is very expensive, and in the final 
analysis provides relatively little additional protection to listed 
species.

[[Page 33062]]

    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with NEPA. 
All are part of the cost of critical habitat designation. None of these 
costs result in any benefit to the species that is not already afforded 
by the protections of the Act enumerated earlier, and they directly 
reduce the funds available for direct and tangible conservation 
actions.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as (I) 
the specific areas within the geographic area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' is defined in section 3(3) of the Act as the 
use of all methods and procedures that are necessary to bring any 
endangered or threatened species to the point at which listing under 
the Act is no longer necessary.
    In order for habitat to be included in a critical habitat 
designation, the habitat features must be ``essential to the 
conservation of the species.'' Such critical habitat designations 
identify, to the extent known using the best scientific data available, 
habitat areas that provide essential life cycle needs of the species 
(i.e., areas on which are found the primary constituent elements, as 
defined at 50 CFR 424.12(b)).
    Regulations at 50 CFR 424.02(j) define special management 
considerations or protection to mean any methods or procedures useful 
in protecting the physical and biological features of the environment 
for the conservation of listed species.
    When we designate critical habitat, we may not have the information 
necessary to identify all areas that are essential for the conservation 
of the species. Nevertheless, we are required to designate those areas 
we know to be critical habitat, using the best information available to 
us.
    Within the geographic area of the species, we will designate only 
currently known essential areas. We will not speculate about what areas 
might be found to be essential if better information became available, 
or what areas may become essential over time. If the information 
available at the time of designation does not show that an area 
provides essential life cycle needs of the species, then the area will 
not be included in the critical habitat designation. Our regulations 
state that, ``The Secretary shall designate as critical habitat areas 
outside the geographic area presently occupied by the species only when 
a designation limited to its present range would be inadequate to 
ensure the conservation of the species'' (50 CFR 424.12(e)). 
Accordingly, when the best available scientific data do not demonstrate 
that the conservation needs of the species require designation of 
critical habitat outside of occupied areas, we will not designate 
critical habitat in areas outside the geographic area occupied by the 
species.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. We may exclude areas from critical 
habitat designation when the benefits of exclusion outweigh the 
benefits of including the areas within critical habitat, provided the 
exclusion will not result in extinction of the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published on July 1, 1994 (59 FR 34271), provides guidance to 
ensure that our decisions are based on the best scientific and 
commercial data available. It requires that our biologists, to the 
extent consistent with the Act and with the use of the best scientific 
and commercial data available, use primary and original sources of 
information as the basis for recommendations to designate critical 
habitat. When determining which areas are critical habitat, information 
that should be considered includes the listing package for the species; 
the recovery plan; articles in peer-reviewed journals; conservation 
plans developed by States and Counties; scientific status surveys; 
studies; biological assessments; unpublished materials; and expert 
opinion or personal knowledge.
    Habitat is often dynamic, however, and populations may move from 
one area to another over time. Furthermore, we recognize that 
designation of critical habitat may not include all of the habitat 
areas that may eventually be determined to be necessary for the 
recovery of the species. Therefore, critical habitat designations do 
not signal that habitat outside the designation is unimportant or may 
not be required for recovery. Areas outside the critical habitat 
designation will continue to be subject to conservation actions that 
may be implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. It is 
possible that federally funded or assisted projects affecting listed 
species outside their designated critical habitat areas could 
jeopardize those species. Similarly, critical habitat designations made 
on the basis of the best available information at the time of 
designation will not control the direction and substance of future 
recovery plans, habitat conservation plans, or other species 
conservation planning and recovery efforts if new information available 
to these planning efforts calls for a different outcome.

A. Prudency Determination

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is listed as 
endangered or threatened. Regulations at 50 CFR 424.12(a)(1) state that 
the designation of critical habitat is not prudent when one or both of 
the following situations exist: (1) The species is threatened by taking 
or other activity and the identification of critical habitat can be 
expected to increase the degree of threat to the species or (2) such 
designation of critical habitat would not be beneficial to the species. 
In our January 3, 1995, final listing rule (60 FR 56), we determined 
that the designation of critical habitat was not prudent for Arabis 
perstellata because such designation would not be beneficial to the 
species and such a designation could further threaten the species.
    However, in the past few years, several of our determinations that 
the designation of critical habitat would not be prudent have been 
overturned by court decisions. For example, in Conservation Council for 
Hawaii v. Babbitt, the United States District Court for the District of 
Hawaii ruled that the Service could not rely on the ``increased 
threat'' rationale for a ``not prudent'' determination without specific 
evidence of the threat to the species at issue (2 F. Supp. 2d 1280 [D. 
Hawaii 1998]). Additionally, in Natural Resources Defense Council v. 
U.S. Department of the Interior, the United States Court of Appeals for 
the Ninth Circuit issued a ruling that limited the application of the 
no benefit justification and required the Service to balance the 
potential threats

[[Page 33063]]

against any benefits to the species of designating critical habitat 113 
F. 3d 1121, 1125 (9th Cir. 1997).
    The courts also have ruled that, in the absence of a finding that 
the designation of critical habitat would increase threats to a 
species, the existence of another type of protection, even if it offers 
potentially greater protection to the species, does not justify a not 
prudent finding (Conservation Council for Hawaii v. Babbitt 2 F. Supp. 
2d 1280).
    If critical habitat is designated for Arabis perstellata, Federal 
agencies will be required to consult with us on actions they carry out, 
fund, or authorize, to ensure that their actions will not destroy or 
adversely modify critical habitat. It may also provide information to 
Federal agencies and the general public of the importance of Arabis 
perstellata habitat and the need for special management considerations 
or protection. A critical habitat designation may assist Federal 
agencies in planning future actions because it establishes, in advance, 
those habitats that will be reviewed in section 7 consultations.
    Though the identification of known plant locations in this proposed 
rule may increase unauthorized collection, we currently have no 
knowledge that unauthorized collection is or has been an issue with 
Arabis perstellata. We found no records of unauthorized collection 
during our literature review or in discussions with researchers. We 
also have found no evidence that identification of Arabis perstellata 
critical habitat would increase the degree of threat to the species. 
Accordingly, we withdraw our previous determination that the 
designation of critical habitat is not prudent. We find that 
designation of critical habitat is prudent for Arabis perstellata 
because there is not likely to be increased threats to the species that 
may result from the critical habitat designation.

B. Methods

    As required by section 4(b)(2) of the Act and its implementing 
regulations (50 CFR 424.12), this proposal is based on the best 
scientific information available concerning the species' current and 
historical range, habitat, biology, and threats. In preparing this 
rule, we reviewed and summarized the current information available on 
Arabis perstellata, including the physical and biological features that 
are essential for the conservation of the species (see ``Primary 
Constituent Elements'' section), and identified the areas containing 
these features. The information used includes known locations, our own 
site-specific species and habitat information, statewide Geographic 
Information System (GIS) coverages (e.g., soils, geologic formations, 
and elevation contours), the Natural Resources Conservation Service's 
soil surveys, the final listing rule for Arabis perstellata, recent 
biological surveys and reports, peer-reviewed literature, our final 
recovery plan, and discussions and recommendations from Arabis 
perstellata experts.

C. Primary Constituent Elements

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and regulations at 50 CFR 424.12, in determining which areas to propose 
as critical habitat, we are required to base critical habitat 
determinations on the best scientific data available, and to focus on 
those physical and biological features (primary constituent elements) 
that are essential to the conservation of the species and that may 
require special management considerations or protection. Such 
requirements include, but are not limited to, space for individual and 
population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for germination or seed dispersal; and habitats that are 
protected from disturbance or are representative of the historical 
geographical and ecological distribution of a species.
    Much of what is known about the specific physical and biological 
requirements of Arabis perstellata is described in the ``Background'' 
section of this proposed rule. The proposed critical habitat is 
designed to provide sufficient habitat to maintain self-sustaining 
populations of Arabis perstellata throughout its range, and to provide 
those habitat components essential for the conservation of the species. 
These habitat components provide for the following--(1) individual and 
population growth, including sites for germination, pollination, 
reproduction, pollen and seed dispersal, and seed dormancy; (2) areas 
that provide basic requirements for growth, such as water, light, and 
minerals; and (3) areas that support populations of pollinators and 
seed dispersal organisms; and (4) habitats that are representative of 
the historic geographical and ecological distribution of the species.
    We believe the conservation of Arabis perstellata is dependent upon 
a number of factors, including the conservation and management of sites 
where existing populations grow and the maintenance of normal 
ecological functions within these sites. The areas we are proposing as 
critical habitat provide some or all of the habitat components 
essential for the conservation of this species.
    Based on the best available information, the primary constituent 
elements essential for the conservation of Arabis perstellata are:
    (a) The slopes of calcareous mesophytic and sub-xeric forest that 
are relatively undisturbed, with few openings in the canopy and several 
large, mature trees (such as sugar maple (Acer saccharum), chinquapin 
oak (Quercus muhlenbergii), hackberry (Celtus occidentalis), or Ohio 
buckeye (Aesculus glabra)) ;
    (b) An area with few introduced weedy plant species such as 
Alliaria petiolata that is able to support self-sustaining populations 
of 50 or more individuals;
    (c) A mesic habitat with open forest floors containing rock 
outcrops on moderate to steep slopes with little herbaceous cover and 
leaf litter accumulation with natural disturbance to allow for Arabis 
perstellata germination and seedling germination;
    (d) Ordovician limestone, in particular the Grier, Tanglewood, and 
Macedonia Bed Members of the Lexington Limestone in Kentucky, and the 
Lebanon, Carters, Leipers, Catheys, and Bigby-Cannon Limestones in 
Tennessee; and
    (e) Limestone soils such as the Fairmont Rock outcrop complexes in 
Kentucky and the Mimosa Rock outcrop complexes in Tennessee.

D. Criteria Used To Identify Critical Habitat

    We considered several factors in the selection and proposal of 
specific areas for critical habitat for Arabis perstellata. We assessed 
the final recovery plan objectives and criteria, which emphasize the 
protection of populations throughout a significant portion of the 
species' range in Kentucky and Tennessee. According to the recovery 
plan, Arabis perstellata will be considered for delisting when 20 
geographically distinct, self-sustaining populations, consisting of 50 
or more plants each, are protected in Kentucky and Tennessee, and it 
has been demonstrated that the populations are stable or increasing 
after five years of monitoring following reclassification to threatened 
status. Because of the proximity of occurrences of Arabis perstellata, 
protected populations must be distributed throughout the range in order 
to decrease the probability of a catastrophic event impacting all the 
protected populations.
    Our approach to delineating specific critical habitat units, based 
on the

[[Page 33064]]

recovery criteria outlined above, focused first on considering all 
areas of suitable habitat within the geographic distribution of this 
species and the known locations of the extant and historic populations. 
We evaluated field data collected from documented occurrences, various 
GIS layers, soil surveys, and United States Geological Survey (USGS) 
quadrangle maps. These data include Arabis perstellata locations, 
soils, elevation, topography, geologic formations, streams, and current 
land uses. Originally, there were eight total populations in Tennessee 
and 47 in Kentucky. Four of the populations in Tennessee and ten in 
Kentucky are historic and no longer contain one or more of the primary 
constituent elements present (Jones 1991; TDEC 2000; Deborah White, 
KSNPC, pers. comm. 2003). By lacking the primary constituent elements, 
they are not essential to the conservation of Arabis perstellata.
    Of the known remaining plant sites in Kentucky (37) and Tennessee 
(4), we identified an additional 21 sites as having fewer than 50 
plants and the habitat is degraded. These sites lack the primary 
constituent elements and, therefore, are not essential to the 
conservation of Arabis perstellata.
    The 20 units in this proposed designation include a significant 
portion, but not all, of the species' historic range. They all contain 
the primary constituent elements essential for the conservation of 
Arabis perstellata (see ``Primary Constituent Elements'' section). The 
omission of historically occupied sites and the rest of the currently 
occupied sites from this proposed critical habitat designation does not 
diminish their individual or cumulative importance to the species. 
Rather, it is our determination that the habitat contained within the 
20 units included in this proposed rule constitutes our best 
determination of areas essential for the conservation, and eventual 
recovery, of Arabis perstellata. The 20 units we are proposing as 
critical habitat encompass approximately 408 ha (1,008 ac) in Kentucky 
and Tennessee.
    To the extent feasible, we will continue, with the assistance of 
other State, Federal, and private researchers, to conduct surveys, 
research, and conservation actions on the species and its habitat in 
areas designated and not designated as critical habitat. If additional 
information becomes available on the species' biology, distribution, 
and threats, we will evaluate the need to designate additional critical 
habitat, delete or reduce critical habitat, or refine the boundaries of 
critical habitat. Sites that are occupied by this plant that are not 
being proposed for critical habitat will continue to receive protection 
under the Act's section 7 jeopardy standard where a Federal nexus may 
occur (see ``Critical Habitat'' section).
    Since the drafting of this proposed critical habitat rule, we have 
received new information from the TDEC (D. Lincicome, pers. comm. 2003) 
regarding two new populations of Arabis perstellata. One population is 
located on Townsel Hill, west of the City of Murfreesboro between 
Newman and Coleman Hill Roads in Rutherford County, Tennessee. This 
site is adjacent to the proposed Sophie Hill critical habitat site (see 
``Proposed Critical Habitat Designation'' section, unit 19) and belongs 
to the same private landowner. The other population is located on 
Grandfather Knob between Cainsville and Spain Hill Roads in Wilson 
County, Tennessee. This site is privately owned by two separate 
landowners. Both sites contain over 100 Arabis perstellata plants and 
in general, it appears that these two populations might meet the 
recovery criteria and contain the primary constituent elements. 
However, these new populations were located following the drafting of 
the proposed critical habitat rule. Because of time and budget 
constraints, we are unable to adequately and formally analyze them for 
inclusion as proposed critical habitat in this document. We will 
conduct the analysis on these two sites prior to making a final 
determination on this proposed rule. If we determine these areas to be 
essential, it would be our intent to include them in the final 
designation.

E. Mapping

    Once we determined that 20 populations are essential to the 
conservation of Arabis perstellata, we used site-specific information 
to determine the extent of these populations. The proposed critical 
habitat units were then delineated by screen-digitizing polygons (map 
units) using ArcView, a computer GIS program. Based on the known plant 
distribution and allowing for downslope germination, we placed 
boundaries around the populations that included the plants, as well as 
their primary constituent elements. In defining these critical habitat 
boundaries, we made an effort to exclude all developed areas, such as 
housing developments, open areas, and other lands unlikely to contain 
the primary constituent elements essential for the conservation of 
Arabis perstellata. We used Kentucky State Plane North/North American 
Datum 1983 (NAD83) coordinates to designate the boundaries of the 
proposed critical habitat in Kentucky, and Tennessee State Plane/NAD83 
coordinates to designate the boundaries of the proposed critical 
habitat in Tennessee.

Proposed Critical Habitat Designation

    The areas proposed for designation as critical habitat for Arabis 
perstellata provide the primary constituent elements described above. 
Table 1 summarizes the location and extent of proposed critical 
habitat. All of the proposed areas require special management 
considerations to ensure their contribution to the conservation of 
Arabis perstellata. We provide general descriptions of the boundaries 
of proposed critical habitat units below.

   Table 1.--Approximate Area (Hectares and Acres) of Proposed Critical Habitat by Unit for Arabis perstellata
----------------------------------------------------------------------------------------------------------------
        Critical habitat unit               County/State            Land ownership        Hectares      Acres
----------------------------------------------------------------------------------------------------------------
1. Sky View Drive...................  Franklin/Kentucky......  Private................           22           54
2. Benson Valley Woods..............  Franklin/Kentucky......  Private................           37           91
3. Red Bridge Ridge.................  Franklin/Kentucky......  Private................            6           15
4. Tributary to South Benson Creek..  Franklin/Kentucky......  Private................           10           25
5. Davis Branch.....................  Franklin/Kentucky......  Private................            3            7
6. Onans Bend.......................  Franklin/Kentucky......  Private................           12           30
7. Shadrock Ferry Road..............  Franklin/Kentucky......  Private................           15           37
8. Hoover Site......................  Franklin/Kentucky......  Private................           83          205
9. Longs Ravine Site................  Franklin/Kentucky......  Private................           30           74
10. Strohmeiers Hill................  Franklin/Kentucky......  Private................           20           49

[[Page 33065]]

 
11. U.S. 127........................  Franklin/Kentucky......  Private................           11           27
12. Camp Pleasant Branch Woods......  Franklin/Kentucky......  Private................           14           35
13. Saufley.........................  Franklin/Kentucky......  Private................            8           20
14. Clements Bluff..................  Owen/Kentucky..........  State..................           11           27
15. Monterey U.S. 127...............  Owen/Kentucky..........  Private................           12           30
16. Craddock Bottom.................  Owen/Kentucky..........  Private................           23           57
17. Backbone North..................  Franklin/Kentucky......  Private................           11           27
18. Scales Mountain.................  Rutherford/Tennessee...  Private................           36           89
19. Sophie Hill.....................  Rutherford/Tennessee...  Private................           16           40
20. Indian Mountain.................  Rutherford/Tennessee...  Private................           28           69
    Total...........................  .......................  .......................          408        1,008
----------------------------------------------------------------------------------------------------------------

Critical Habitat Unit Descriptions

    We are proposing a total of 20 critical habitat units for Arabis 
perstellata in Kentucky and Tennessee--14 critical habitat units in 
Franklin County, Kentucky; 3 in Owen County, Kentucky; and 3 in 
Rutherford County, Tennessee. In order to provide determinable legal 
descriptions of the critical habitat boundaries, we drew polygons 
around these units, using as criteria the plant's primary constituent 
elements, the known extent of the populations, and the elevation 
contours on the map. We made an effort to avoid developed areas that 
are unlikely to contribute to the conservation of Arabis perstellata. 
Areas within the boundaries of the mapped units, such as buildings, 
roads, clearings, transmission lines, lawns, and other urban landscaped 
areas do not contain one or more of the primary constituent elements. 
As such, Federal actions limited to these areas would not trigger 
consultation pursuant to section 7 of the Act, unless they affect the 
species or primary constituent elements in the critical habitat.
    On the basis of the best available scientific information, we 
determined that the 20 proposed critical habitat units represent the 
only known Arabis perstellata populations that meet the recovery 
criteria of being geographically distinct, self-sustaining, and 
containing 50 or more plants. These 20 sites contain the highest-
quality populations in terms of size and habitat that are presently 
known. The remaining known populations (21) of Arabis perstellata do 
not meet these criteria, because each has fewer than 50 plants that 
occur on degraded sites, making their long-term viability questionable. 
As such, they are not essential to the conservation of this species. 
Once the proposed 20 sites have adequate management and permanent 
protection measures in place and their populations are stable or 
increasing for a 5-year period, we may consider this species for 
delisting. Consequently, the proposed units are essential for the long-
term conservation and eventual recovery of this species because they 
constitute the 20 geographically distinct sites that are most likely to 
be able to support self-sustaining populations of 50 or more 
individuals, as outlined in the recovery criteria.
    A brief description of each of these critical habitat units is 
given below. The population information presented in all of the unit 
descriptions was taken from the KSNPC's Natural Heritage Database for 
the Kentucky units and the TDEC's Natural Heritage Database for the 
Tennessee units.

Unit 1. Sky View Drive in Franklin County, Kentucky

    Unit 1 is located on the west side of the City of Frankfort. It 
occurs along U.S. 127 and Skyview Drive on the slopes of the first 
large ravine system due west of the confluence of Benson Creek and the 
Kentucky River. It contains approximately 22 ha (54 ac), all of which 
are privately owned. This site was first observed to have Arabis 
perstellata in 1979. In 2001, surveys conducted by the KSNPC found more 
than 150 plants, but not all habitat was surveyed. The majority of the 
plants occur on the west- and south-facing slopes and are associated 
with bare soil on trails and tree bases.

Unit 2. Benson Valley Woods in Franklin County, Kentucky

    Unit 2 is located west of the City of Frankfort. The unit lies 
southeast of Benson Valley Road on the south side of Benson Creek. It 
is privately owned and contains approximately 37 ha (91 ac). The plants 
occur on the southeast-facing slope. They were first observed in 1979. 
KSNPC personnel last observed more than 200 plants in 2001. The site is 
threatened by trampling and competition by weeds.

Unit 3. Red Bridge Ridge in Franklin County, Kentucky

    Unit 3 is located west of Kentucky (KY) Highway 1005, at the 
confluence of South Benson and Benson Creeks. The site is privately 
owned and is approximately 6 ha (15 ac) in size. Plants at this site 
were first observed in 1987. In 1990, 75 plants were found along the 
southeast- and northwest-facing slopes.

Unit 4. Tributary to South Benson Creek in Franklin County, Kentucky

    This unit is located northeast of the City of Frankfort. It occurs 
along the southeast side of South Benson Creek and the north and south 
slopes of an unnamed tributary. The site is in private ownership and is 
10 ha (25 ac) in size. In 1996, over 1,000 plants were found along the 
northwest-facing lower, mid, and upper slopes, making this one of the 
best sites in Kentucky for Arabis perstellata.

Unit 5. Davis Branch in Franklin County, Kentucky

    This unit occurs along the east side of Harvieland Drive and Davis 
Branch. This unit contains approximately 3 ha (7 ac) and is privately 
owned. Plants were first observed at this site in 1990. In 2001, more 
than 200 plants were found along the south-facing slope throughout the 
ravine system.

Unit 6. Onans Bend in Franklin County, Kentucky

    Unit 6 occurs north of Onans Bend Road and east of KY Highway 12. 
The unit lies along the banks of an unnamed stream near its mouth with 
the west bank of the Kentucky River. This unit is privately owned and 
contains approximately 12 ha (30 ac). Plants at this unit were first 
observed in 1979. In 1990, more than 100 plants were found on the 
south-facing slope. The plants were exceptionally vigorous. The site is 
threatened by weed competition.

[[Page 33066]]

Unit 7. Shadrock Ferry Road in Franklin County, Kentucky

    This unit is located along the north side of Shadrock Ferry Road 
(KY Highway 898). Property at this location is in private ownership. 
This unit is approximately 15 ha (37 ac) in size. Plants were first 
observed at this site in 1996. In 2001, more than 100 plants were found 
on the south-facing slope.

Unit 8. Hoover Site in Franklin County, Kentucky

    This unit lies northwest of the City of Frankfort, along the west 
side of the Kentucky River on slopes bordering two unnamed tributaries. 
Plants are widely scattered in small groups along the Kentucky River 
bluff from river kilometer (km) 98.6 to 101.7 (river mile 61.3 to 63.2. 
This unit is in private ownership and contains approximately 83 ha (205 
ac). The plants were first observed in 1990. In 1996, more than 200 
plants were found.

Unit 9. Longs Ravine Site in Franklin County, Kentucky

    Unit 9 is located north of the City of Frankfort and Lewis Ferry 
Road. This unit lies east of the Kentucky River in a large ravine and 
along the steep slopes above the river. This unit is privately owned. 
There are approximately 30 ha (74 ac) in this unit. In 1990, more than 
250 plants were found on the northeast, southwest, and northwest-facing 
slopes.

Unit 10. Strohmeiers Hill in Franklin County, Kentucky

    This unit is located south of the Town of Swallowfield and adjacent 
to Strohmeier Road and U.S. 127. It occurs on steep slopes on the south 
side of Elkhorn Creek and on the east bank of the Kentucky River, south 
of the confluence with Elkhorn Creek. The plants at this site were 
first observed in 1930. The property is privately owned. The site is 
approximately 20 ha (49 ac) in size. In 1994, the site contained more 
than 200 flowering plants. The plants were exceptionally vigorous and 
occurred throughout a large area, making this one of the best 
populations of Arabis perstellata in Kentucky

Unit 11. U.S. 127 in Franklin County, Kentucky

    Unit 11 is located along the east side of U.S. 127 in a ravine just 
southeast of Elkhorn Creek. This privately owned site is approximately 
11 ha (27 ac) in size. The plants were first observed in 2001, at which 
time approximately 100 plants were found on the west-facing slope.

Unit 12. Camp Pleasant Branch Woods in Franklin County, Kentucky

    Unit 12 is located along the south side of Camp Pleasant Road (KY 
Highway 1707). This site is privately owned and contains approximately 
14 ha (35 ac). The first observance of plants at this site was in 1987. 
In 2001, more than 100 plants were found along the lower northwest-
facing slope. Plants at this site are threatened by competition from 
weeds.

Unit 13. Saufley in Franklin County, Kentucky

    Unit 13 occurs west of the KY Highway 1900 bridge over Elkhorn 
Creek on the hillside above the creek. The land ownership for this unit 
is private. The site is approximately 8 ha (20 ac) in size. Plants were 
first observed in 1988. In 1996, more than 100 plants were found along 
the top of the ridge on the northeast-facing slope.

Unit 14. Clements Bluff in Owen County, Kentucky

    This unit is located in a ravine facing the Kentucky River along 
the east side of KY Highway 355. The site is owned by the State of 
Kentucky and is part of the Kentucky River Wildlife Management Area. 
This unit is approximately 11 ha (27 ac) in size. The plants were first 
observed at this site in 1980 on the north-facing slope. In 1996, 
approximately 100 plants occurred at the site.

Unit 15. Monterey U.S. 127 in Owen County, Kentucky

    Unit 15 is located 1.6 km (1 mile) north of the City of Monterey, 
just north of the junction of U.S. 127 and KY Highway 355. The property 
is privately owned and is approximately 12 ha (30 ac) in size. Plants 
were first observed at this site in 1996. In 1997, 150 plants were 
found along the southwest-facing slope of an unnamed tributary to the 
Kentucky River. The site is being threatened by weedy competition.

Unit 16. Craddock Bottom in Owen County, Kentucky

    This unit is located south of the City of Monterey. It occurs along 
the west side of Old Frankfort Pike on the west-facing slope just east 
of Craddock Bottom. Property at this site is privately owned and 
contains approximately 23 ha (57 ac). In 1996, over 150 plants were 
found. In 1996, there was evidence of logging in the surrounding area.

Unit 17. Backbone North in Franklin County, Kentucky

    Unit 17 is located north of KY Highway 1900. It occurs in an old 
river oxbow west of the existing Elkhorn Creek and is privately owned. 
The unit size is approximately 11 ha (27 ac). Plants were first 
observed at this site in 1981. In 1990, more than 200 plants were found 
on the southeast facing slope.

Unit 18. Scales Mountain in Rutherford County, Tennessee

    This unit is located west of the City of Murfreesboro on Scales 
Mountain, 1.6 km (1 mile) south of Highway 96. The site is privately 
owned and is 36 ha (89 ac) in size. Plants were first observed at this 
site in 1985. In 2000, more than 100 plants were found on the north-
facing slope. The primary threat to this site is competition from 
weeds.

Unit 19. Sophie Hill in Rutherford County, Tennessee

    Unit 19 is located west of the City of Murfreesboro on Sophie Hill, 
which lies between Newman and Coleman Hill Roads. The property at this 
site is privately owned. The unit is approximately 16 ha (40 ac) in 
size. The first observance of Arabis perstellata on this site was in 
1991. In 2000, more than 200 plants were found on the northwest side of 
Sophie Hill.

Unit 20. Indian Mountain in Rutherford County, Tennessee

    Unit 20 is located west of the City of Murfreesboro on Indian 
Mountain between Highway 96 and Coleman Hill Road. This site is 
privately owned. The unit size is approximately 28 ha (69 ac). In 2000, 
over 2,600 plants were found. This is the best site for Arabis 
perstellata in Tennessee. Logging appears to be the biggest threat to 
this exceptional site.

Effects of Critical Habitat Designation

ESA Section 7 Consultation

    The regulatory effects of a critical habitat designation under the 
Act are triggered through the provisions of section 7, which applies 
only to activities conducted, authorized, or funded by a Federal agency 
(Federal actions). Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR 402. 
Individuals, organizations, States, local governments, and other non-
Federal entities are not affected by the designation of critical 
habitat unless their actions occur on Federal lands, require Federal 
authorization, or involve Federal funding.
    Section 7(a)(2) of the Act requires Federal agencies, including us, 
to insure that their actions are not likely to jeopardize the continued 
existence of a listed species or result in the

[[Page 33067]]

destruction or adverse modification of designated critical habitat. 
This requirement is met through section 7 consultation under the Act. 
Our regulations define ``jeopardize the continued existence'' as to 
engage in an action that reasonably would be expected, directly or 
indirectly, to reduce appreciably the likelihood of both the survival 
and recovery of a listed species in the wild by reducing the 
reproduction, numbers, or distribution of that species (50 CFR 402.02). 
``Destruction or adverse modification of designated critical habitat'' 
is defined as a direct or indirect alteration that appreciably 
diminishes the value of the critical habitat for both the survival and 
recovery of the species (50 CFR 402.02). Such alterations include, but 
are not limited to, adverse changes to the physical or biological 
features, i.e., the primary constituent elements, that were the basis 
for determining the habitat to be critical. However, in a March 15, 
2001, decision of the United States Court of Appeals for the Fifth 
Circuit (Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 
434), the Court found our definition of destruction or adverse 
modification to be invalid. In response to this decision, we are 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of the species.
    Section 7(a)(4) requires Federal agencies to confer with us on any 
action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. The conservation recommendations in a 
conference report are advisory.
    We may issue a formal conference report, if requested by the 
Federal action agency. Formal conference reports include an opinion 
that is prepared according to 50 CFR 402.14, as if critical habitat 
were designated. We may adopt the formal conference report as the 
biological opinion when critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency would ensure that the permitted actions do not destroy or 
adversely modify critical habitat.
    If we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we would also provide reasonable and prudent alternatives to 
the project, if any are identifiable. Reasonable and prudent 
alternatives are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Service's Regional Director believes would avoid the 
destruction or adverse modification of critical habitat. Reasonable and 
prudent alternatives can vary from slight project modifications to 
extensive redesign or relocation of the project. Costs associated with 
implementing a reasonable and prudent alternative are similarly 
variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    There are no known populations of Arabis perstellata occurring on 
Federal lands. However, activities on private, State, or city lands 
requiring a permit from a Federal agency, such as a permit from the 
U.S. Army Corps of Engineers (USACE) under section 404 of the Clean 
Water Act, a permit under section 10(a)(1)(B) of the Act from us, or 
some other Federal action--including funding (e.g., from the Federal 
Highway Administration (FHWA), Federal Aviation Administration, or 
Federal Emergency Management Agency); permits from the Department of 
Housing and Urban Development; activities funded by the U.S. 
Environmental Protection Agency (EPA), Department of Energy, or any 
other Federal agency; and construction of communication sites licensed 
by the Federal Communications Commission--will be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on non-Federal lands that are 
not federally funded, authorized, or permitted do not require section 7 
consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may adversely 
modify such habitat, or that may be affected by such designation. 
Activities that may result in the destruction or adverse modification 
of critical habitat include those that alter the primary constituent 
elements to an extent that the value of critical habitat for the 
conservation of Arabis perstellata is appreciably reduced. We note that 
such activities may also jeopardize the continued existence of the 
species. Activities that, when carried out, funded, or authorized by a 
Federal agency, may directly or indirectly destroy or adversely modify 
critical habitat include, but are not limited to:
    (1) Ground disturbances that destroy or degrade primary constituent 
elements of the plant (e.g., clearing, tilling, grading, logging, 
construction, and road building);
    (2) Activities that directly or indirectly affect Arabis 
perstellata plants or underlying seed bank (e.g., herbicide application 
that could degrade the habitat on which the species depends, 
incompatible introductions of non-native herbivores, incompatible 
grazing management, clearing, tilling, grading, construction, and road 
building);
    (3) Activities that encourage the growth of Arabis perstellata 
competitors (e.g., widespread fertilizer application, road building, 
clearing, logging); and
    (4) Activities that significantly degrade or destroy Arabis 
perstellata pollinator populations (e.g., pesticide applications).

Previous Section 7 Consultations

    Several section 7 consultations for Federal actions affecting 
Arabis perstellata and its habitat have preceded this critical habitat 
proposal. The action agencies have included the USACE, U.S. Department 
of Agriculture Rural Development, FHWA, and EPA.
    Since listing, we have conducted 33 informal and no formal 
consultations involving Arabis perstellata. The informal consultations, 
all of which concluded with a finding that the proposed Federal action 
would not affect or would not likely adversely

[[Page 33068]]

affect Arabis perstellata, addressed a range of actions, including 
highway and bridge construction, maintenance of utility lines (e.g., 
water and sewer lines) along existing roads, and building construction.
    The designation of critical habitat will have no impact on private 
landowner activities that do not require Federal funding or permits. 
Designation of critical habitat is only applicable to activities 
approved, funded, or carried out by Federal agencies.
    If you have questions regarding whether specific activities would 
constitute adverse modification of critical habitat, you may contact 
the following Service offices:

Kentucky-Frankfort Ecological Services Office (502/695-0468)
Tennessee-Cookeville Ecological Services Office (931/528-6481)

    To request copies of the regulations on listed wildlife and plants 
or inquire about prohibitions and permits, contact the U.S. Fish and 
Wildlife Service, Ecological Services, 1875 Century Boulevard, Atlanta, 
GA 30345 (telephone 404/679-4176; facsimile 404/679-7081).

Exclusions Under Section 4(b)(2)

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific information available, and 
that we consider the economic and other relevant impacts of designating 
a particular area as critical habitat. We may exclude areas from 
critical habitat if the benefits of exclusion outweigh the benefits of 
designation, provided the exclusion will not result in the extinction 
of the species. We have completed a draft analysis of the economic 
impacts of designating these areas as critical habitat that is 
consistent with the ruling of the 10th Circuit Court of Appeals in N.M. 
Cattle Growers Ass'n v. USFWS. The results of our draft analysis 
suggest that the potential economic impacts of the proposed designation 
range from $65,000 to $272,000 over the next 10 years. Please refer to 
the draft analysis for more details concerning the methodological 
approach and finding of the analysis. Comments will be accepted on the 
draft economic analysis during the comment period on this proposed 
rule. Copies of the draft economic analysis of this proposed critical 
habitat designation are available on the Internet at http://cookeville.fws.gov or by contacting our Cookeville, TN field office 
(see ADDRESSES).

Relationship to Habitat Conservation Plans and Other Planning Efforts

    Section 10(a)(1)(B) of the Act authorizes us to issue permits for 
the take of listed wildlife species incidental to otherwise lawful 
activities. An incidental take permit application must be supported by 
a habitat conservation plan (HCP) that identifies conservation measures 
that the permittee agrees to implement for the species to minimize and 
mitigate the impacts of the permitted incidental take. Although take of 
listed plants is not generally prohibited by the Act on private land, 
listed plant species may also be covered in an HCP for wildlife 
species. Currently, no HCPs exist that include Arabis perstellata as a 
covered species. In the event that future HCPs covering Arabis 
perstellata are developed within the boundaries of designated critical 
habitat, we will work with applicants to ensure that the HCPs provide 
for protection and management of habitat areas essential for the 
conservation of this species. This will be accomplished by either 
directing development and habitat modification to nonessential areas, 
or appropriately modifying activities within essential habitat areas so 
that such activities will not adversely modify the primary constituent 
elements. The HCP development process would provide an opportunity for 
more intensive data collection and analysis regarding the use of 
particular habitat areas by Arabis perstellata. The process would also 
enable us to conduct detailed evaluations of the importance of such 
lands to the long-term survival and conservation of the species in the 
context of constructing a system of interlinked habitat blocks 
configured to promote the conservation of the species through 
application of the principles of conservation biology. We will provide 
technical assistance and work closely with applicants throughout the 
development of any future HCPs to identify lands essential for the 
long-term conservation of Arabis perstellata, and appropriate 
management for those lands. Furthermore, we will complete intra-Service 
consultation on our issuance of section 10(a)(1)(B) permits for these 
HCPs to ensure permit issuance will not destroy or adversely modify 
critical habitat.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment, 
during the public comment period, on the specific assumptions and 
conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearing

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing at 
least 15 days prior to the close of the public comment period. We will 
schedule public hearings on this proposal, if any are requested, and 
announce the dates, times, and places of those hearings in the Federal 
Register and local newspapers at least 15 days prior to the first 
hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations and 
notices that are easy to understand. We invite your comments on how to 
make proposed rules easier to understand including answers to questions 
such as the following: (1) Are the requirements in the document clearly 
stated? (2) Does the proposed rule contain technical language or jargon 
that interferes with the clarity? (3) Does the format of the proposed 
rule (e.g., grouping and order of sections, use of headings, 
paragraphing) aid or reduce its clarity? (4) Is the description of the 
proposed rule in the SUPPLEMENTARY INFORMATION Section of the preamble 
helpful in understanding the proposed rule? (5) What else could we do 
to make the proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240. You may e-mail your comments to this address: 
[email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, the Office of Management 
and Budget (OMB) has determined that this critical habitat designation 
is not a significant regulatory action. This rule

[[Page 33069]]

will not have an annual economic effect of $100 million or more or 
adversely affect any economic sector, productivity, competition, jobs, 
the environment, or other units of government.
    This designation will not create inconsistencies with other 
agencies' actions or otherwise interfere with an action taken or 
planned by another agency. It will not materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. Finally, this designation will not raise novel legal 
or policy issues. Accordingly, OMB has not reviewed this proposed 
critical habitat designation.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act (RFA) to require Federal agencies to provide 
a statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities. SBREFA also amended the RFA to require a certification 
statement. We are hereby certifying that this proposed rule will not 
have a significant effect on a substantial number of small entities.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000.
    SBREFA does not explicitly define either ``substantial number'' or 
``significant economic impact.'' Consequently, to assess whether a 
``substantial number'' of small entities is affected by this 
designation, this analysis considers the relative number of small 
entities likely to be impacted in the area. Similarly, this analysis 
considers the relative cost of compliance on the revenues/profit 
margins of small entities in determining whether or not entities incur 
a ``significant economic impact.'' Only small entities that are 
expected to be directly affected by the designation are considered in 
this portion of the analysis. This approach is consistent with several 
judicial opinions related to the scope of the RFA (Mid-Tex Electric Co-
op Inc. v. F.E.R.C., 773 F.2d 327 (D.C. Cir. 1985) and American 
Trucking Associations, Inc. v. U.S. E.P.A., 175 F.3d 1027, (D.C. Cir. 
1999)).
    To determine if the rule would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (e.g., housing development, 
grazing, oil and gas production, timber harvesting). We applied the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. Designation of critical habitat only 
affects activities conducted, funded, or permitted by Federal agencies; 
non-Federal activities are not affected by the designation. Federal 
agencies are already required to consult with us under section 7 of the 
Act on activities that they fund, permit, or implement that may affect 
Arabis perstellata.
    If this critical habitat designation is finalized, Federal agencies 
must also consult with us if their activities may affect designated 
critical habitat. However, we believe this will result in minimal 
additional regulatory burden on Federal agencies or their applicants 
because consultation would already be required because of the presence 
of the listed species, and consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process and trigger only minimal additional 
regulatory impacts beyond the duty to avoid jeopardizing the species.
    Designation of critical habitat could result in an additional 
economic burden on small entities because of the requirement to 
reinitiate consultation for ongoing Federal activities. However, since 
Arabia perstellata was listed in 1995, we have conducted only 33 
informal and no formal consultations involving this species. Most of 
these consultations involved Federal projects or permits to businesses 
that do not meet the definition of a small entity (e.g., federally 
sponsored projects). Also, a number of USACE permit actions involved 
other large public entities (e.g., State-sponsored activities) that do 
not meet the definition of a small entity. No formal consultations 
involved a non-Federal entity. However, about five informal 
consultations were on behalf of a private business. Most of these 
informal consultations were utility-related (e.g., water lines and 
sewer lines), some being proposed by small entities. We do not believe 
that the number of utility-related small entities meets the definition 
of substantial described above.
    All of the proposed critical habitat, with the exception of 11 ha 
(27 ac) of State-owned land, is under private ownership. Small entity 
economic activities that may require Federal authorization or permits 
include utility-related activities such as pipelines and powerlines. 
However, we are not aware of a significant number of future activities 
that would require Federal permitting or authorization in these areas. 
Historically, there have been less than two informal consultations per 
State per year involving both large and small private entities. There 
are no Federal lands included in these proposed critical habitat 
designations. Therefore, we conclude that the proposed rule would not 
affect a substantial number of small entities.
    In summary, we have considered whether this proposed rule would 
result in a significant economic effect on a substantial number of 
small entities. We have concluded that it would not affect a 
substantial number of small entities. There would be no additional 
section 7 consultations resulting from this rule as all proposed 
critical habitat is currently occupied by Arabia perstellata, so the 
consultation requirement has already been triggered. These 
consultations are not likely to affect a substantial number of small 
entities. This rule would result in project modifications only when 
proposed Federal activities would destroy or adversely modify critical 
habitat. While this may occur, it is not expected to occur frequently 
enough to affect a substantial number of small entities. Therefore, we 
are certifying that

[[Page 33070]]

the proposed designation of critical habitat for Arabia perstellata 
will not have a significant economic impact on a substantial number of 
small entities, and an initial regulatory flexibility analysis is not 
required. This determination will be revisited after review of our 
economic analysis and revised, if necessary, in the final rule.
    This discussion is based upon the information regarding potential 
economic impact that is available to us at this time. This assessment 
of economic effect may be modified prior to final rulemaking based upon 
review of the draft economic analysis prepared pursuant to section 
4(b)(2) of the ESA and Executive Order 12866. This analysis is for the 
purposes of compliance with the Regulatory Flexibility Act and does not 
reflect our position on the type of economic analysis required by New 
Mexico Cattle Growers Assn. v. U.S. Fish and Wildlife Service 248 F.3d 
1277 (10th Cir. 2001).

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2))

    In the draft economic analysis, we determine whether designation of 
critical habitat will cause (a) any effect on the economy of $100 
million or more; (b) any increases in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S. -based enterprises to compete with foreign-based 
enterprises. Refer to the draft economic analysis for a discussion of 
the effects of this determination.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. The primary land uses 
within designated critical habitat for Arabis perstellata include 
recreation, grazing, and logging. No significant energy production, 
supply, and distribution facilities are included within designated 
critical habitat. Therefore, this action is not a significant action 
affecting energy production, supply, and distribution facilities, and 
no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This proposed rule will not ``significantly or uniquely'' 
affect small governments. A Small Government Agency Plan is not 
required. Small governments will not be affected unless they propose an 
action requiring Federal funds, permits, or other authorization. Any 
such activity will require that the involved Federal agency ensure that 
the action will not adversely modify or destroy designated critical 
habitat.
    (b) This rule will not produce a Federal mandate on State, local, 
or tribal governments or the private sector of $100 million or greater 
in any year; that is, it is not a ``significant regulatory action'' 
under the Unfunded Mandates Reform Act. The designation of critical 
habitat imposes no new obligations on State or local governments.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing to designate approximately 408 ha (1,008 ac) of lands in 
Franklin and Owen counties in Kentucky, and Rutherford county in 
Tennessee, as critical habitat for Arabis perstellata in a takings 
implication assessment. This preliminary assessment concludes that this 
proposed rule does not pose significant takings implications.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policy, we 
requested information from, and coordinated the development of this 
critical habitat proposal with, appropriate State natural resource 
agencies in Kentucky and Tennessee. The impact of the proposed 
designation on State and local governments and their activities is not 
believed to be significant, and we are examining this more fully in the 
economic analysis of the proposal, on which we are seeking public 
comment. The designation may have some benefit to these governments in 
that the areas essential to the conservation of the species are more 
clearly defined, and the primary constituent elements of the habitat 
necessary to the survival of the species are specifically identified. 
While making this definition and identification does not alter where 
and what federally sponsored activities may occur, it may assist these 
local governments in long-range planning, rather than forcing/
necessitating them to wait for case-by-case section 7 consultations to 
occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system, and that it meets the requirements of sections 3(a) 
and 3(b)(2) of the Order. We are proposing to designate critical 
habitat in accordance with the provisions of the Act, as amended. This 
rule uses standard property descriptions and identifies the primary 
constituent elements within the proposed areas to assist the public in 
understanding the habitat needs that are essential for the conservation 
of Arabis perstellata.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This proposed rule does not contain new or revised information 
collection for which OMB approval is required under the Paperwork 
Reduction Act. An agency may not conduct or sponsor, and a person is 
not required to respond to, a collection of information unless it 
displays a currently valid OMB control number.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment or an 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).

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 are not aware of any 
Tribal lands essential for the conservation of Arabis perstellata. 
Therefore, the proposed critical habitat for Arabis perstellata does 
not contain any Tribal lands or

[[Page 33071]]

lands that we have identified as impacting Tribal trust resources.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Cookeville Field Office (see ADDRESSES 
section).

Author

    The primary author of this document is Timothy Merritt (see 
ADDRESSES section), 931/528-6481, extension 211.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    For the reasons outlined in the preamble, we propose to amend part 
17, subchapter B of chapter I, title 50 of the Code of Federal 
Regulations, as follows:

PART 17--[AMENDED]

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

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

    2. In section 17.12(h), revise the entry for the ``Arabis 
perstellata'' under ``FLOWERING PLANTS'' in the List of Endangered and 
Threatened Plants to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species
------------------------------------------------------   Historic range          Family            Status     When listed  Critical habitat    Special
         Scientific name              Common name                                                                                               rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
        Flowering Plants
 
                                                                      * * * * * * *
Arabis perstellata..............  Rock-cress, Braun's  U.S.A. (KY, TN)...  Brassicaceae......  E                      570  17.96(a)                   NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.96, amend paragraph (a) by adding an entry for 
``Family Brassicaceae'' Arabis perstellata in alphabetical order to 
read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) * * *
    Family Brassicaceae: Arabis perstellata (Braun's rock-cress).
    (1) Critical habitat units are depicted for Franklin and Owen 
Counties, Kentucky, and Rutherford County, Tennessee, on the maps 
below.
    (2) Based on the best available information, primary constituent 
elements essential for the conservation of Arabis perstellata are:
    (i) The slopes of calcareous mesophytic and sub-xeric forest that 
are relatively undisturbed, with few openings in the canopy and several 
large, mature trees (such as sugar maple (Acer saccharum), chinquapin 
oak (Quercus muhlenbergii), hackberry (Celtus occidentalis), or Ohio 
buckeye (Aesculus glabra);
    (ii) An area with few introduced weedy plant species such as 
Alliaria petiolata that is able to support self-sustaining populations 
of 50 or more individuals;
    (iii) A mesic habitat with open forest floors containing rock 
outcrops on moderate to steep slopes with little herbaceous cover and 
leaf litter accumulation with natural disturbance to allow for Arabis 
perstellata germination and seedling germination;
    (iv) Ordovician limestone, in particular the Grier, Tanglewood, and 
Macedonia Bed Members of the Lexington Limestone in Kentucky, and the 
Lebanon, Carters, Leipers, Catheys, and Bigby-Cannon Limestones in 
Tennessee; and
    (v) Limestone soils such as the Fairmont Rock outcrop complexes in 
Kentucky and the Mimosa Rock outcrop complexes in Tennessee.
    (3) Existing features and structures made by people, such as 
buildings, roads, railroads, airports, other paved areas, lawns, and 
other urban landscaped areas, do not contain one or more of the primary 
constituent elements and are not critical habitat. Federal actions 
limited to those areas, therefore, would not trigger a consultation 
under section 7 of the Act unless they may affect the species and/or 
primary constituent elements in adjacent critical habitat.
    (4) Critical Habitat Map Units.
    (i) Data layers defining map units were created on a base of USGS 
7.5' quadrangles, and proposed critical habitat units were then mapped 
in feet using Kentucky State Plane North, NAD 83, and Tennessee State 
Plane, NAD 83, coordinates.
    (ii) Map 1, Index of Critical Habitat Proposed for Braun's Rock-
cress, Kentucky, follows:
BILLING CODE 4310-55-P

[[Page 33072]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.018

BILLING CODE 4310-55-C
    (5) Unit 1: Sky View Drive, Franklin County, Kentucky.
    (i) From USGS 1:24,000 quadrangle map Frankfort West, Kentucky; 
land

[[Page 33073]]

bounded by the following Kentucky State Plane North/NAD83 (feet) 
coordinates: 1453158.08, 257013.95; 1455318.02, 258193.89; 1455537.40, 
256159.34.
    (6) Unit 2: Benson Valley Woods, Franklin County, Kentucky.
    (i) From USGS 1:24,000 quadrangle map Frankfort East, Kentucky; 
land bounded by the following Kentucky State Plane North/NAD83 (feet) 
coordinates: 1472992.79, 265095.85; 1473291.28, 265164.80; 1473577.90, 
265164.80; 1474816.35, 265479.91; 1475173.07, 265669.44; 1475272.97, 
265517.23; 1474329.11, 265036.38; 1473438.80, 264939.25; 1472992.42, 
264858.64.
    (7) Unit 3: Red Bridge Ridge, Franklin County, Kentucky.
    (i) From USGS 1:24,000 quadrangle Frankfort West, Kentucky; land 
bounded by the following Kentucky State Plane North/NAD83 (feet) 
coordinates: 1442614.00, 258863.10; 1443144.60, 258502.62; 1441670.26, 
257801.90; 1441581.15, 258012.52.
    (8) Unit 4: Tributary to South Benson Creek, Franklin County, 
Kentucky.
    (i) From USGS 1:24,000 quadrangle map Frankfort West, Kentucky; 
land bounded by the following Kentucky State Plane North/NAD83 (feet) 
coordinates: 1443620.37, 253609.15; 1444037.01, 253294.00; 1442925.97, 
252129.54; 1442210.20, 252471.40.
    (ii) Map 2, Units 1, 2, 3, and 4, Critical Habitat Proposed for 
Braun's Rock-cress, Kentucky, follows:
BILLING CODE 4310-55-P

[[Page 33074]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.019

    (9) Unit 5: Davis Branch, Franklin County, Kentucky.
    (i) From USGS 1:24,000 quadrangle map Polsgrove, Kentucky; land 
bounded by the following Kentucky State Plane North/NAD83 (feet) 
coordinates:

[[Page 33075]]

1450167.05, 277739.69; 1450767.00, 277750.87; 1450761.41, 277314.88; 
1450202.46, 277180.73.
    (10) Unit 6: Onans Bend, Franklin County, Kentucky.
    (i) From USGS 1:24,000 quadrangle map Polsgrove, Kentucky; land 
bounded by the following Kentucky State Plane North/NAD83 (feet) 
coordinates: 1458610.26, 289401.40; 1459066.14, 289401.50; 1459484.82, 
288182.67; 1458210.30, 287759.68; 1458191.76, 288155.34.
    (11) Unit 7: Shadrock Ferry Road, Franklin County, Kentucky.
    (i) From USGS 1:24,000 quadrangle Switzer, Kentucky; land bounded 
by the following Kentucky State Plane North/NAD83 (feet) coordinates: 
1461695.27, 280422.79; 1462823.09, 280986.70; 1463880.43, 280256.18; 
1463463.90, 279506.43.
    (12) Unit 8: Hoover Site, Franklin County, Kentucky.
    (i) From USGS 1:24,000 quadrangle Frankfort West, Kentucky; land 
bounded by the following Kentucky State Plane North/NAD83 (feet) 
coordinates: 1453446.71, 269919.75; 1454641.35, 269410.27; 1453921.05, 
266476.39; 1452392.62, 264561.46; 1451250.69, 265879.07.
    (13) Unit 9: Longs Ravine Site, Franklin County, Kentucky.
    (i) From USGS 1:24,000 quadrangle Frankfort West, Kentucky; land 
bounded by the following Kentucky State Plane North/NAD83 (feet) 
coordinates: 1457404.81, 269596.23; 1457959.89, 270126.46; 1460205.09, 
268958.30; 1459003.79, 267607.86.
    (ii) Map 3, Units 5, 6, 7, 8, and 9, Critical Habitat Proposed for 
Braun's Rock-cress, Kentucky, follows:

[[Page 33076]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.020

    (14) Unit 10: Strohmeiers Hills, Franklin County, Kentucky.
    (i) From USGS 1:24,0000 quadrangle Switzer, Kentucky; land bounded 
by the following Kentucky State Plane North/NAD83 (feet) coordinates: 
1467733.92,

[[Page 33077]]

298729.06; 1468218.13, 298978.50; 1468695.00, 297144.38; 1469854.17, 
296131.94; 1469568.53, 295848.76; 1468658.32, 296498.77; 1468247.47, 
297181.06; 1468056.72, 297936.72; 1467763.26, 296704.19; 1467440.46, 
297415.83.
    (15) Unit 11: U.S. 127, Franklin County, Kentucky.
    (i) From USGS 1:24,000 quadrangle Switzer, Kentucky. Lands bounded 
by the following Kentucky State Plane North/NAD83 (feet) coordinates: 
1469164.24, 295115.19; 1469939.07, 295511.62; 1470629.82, 294466.49; 
1469662.78, 294058.06.
    (ii) Map 4, Units 10 and 11, Critical Habitat Proposed for Braun's 
Rock-cress, Kentucky, follows:

[[Page 33078]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.021

    (16) Unit 12: Camp Pleasant Branch, Franklin County, Kentucky.
    (i) From USGS 1:24,000 quadrangle Switzer, Kentucky; land bounded 
by the following Kentucky State Plane North/NAD83 (feet) coordinates: 
1453446.71,

[[Page 33079]]

269919.75; 1454641.35, 269410.27; 1453921.05, 266476.39; 1452392.62, 
264561.46; 1451250.69, 265879.07.
    (17) Unit 13: Saufley, Franklin County, Kentucky.
    (i) From USGS 1:24,000 quadrangle Switzer, Kentucky; land bounded 
by the following Kentucky State Plane North/NAD83 (feet) coordinates: 
1476234.26, 281055.05; 1476538.92, 281115.98; 1476924.83, 280171.52; 
1477848.97, 279612.98; 1476538.92, 279887.17.
    (ii) Map 5, Units 12 and 13, Critical Habitat Proposed for Braun's 
Rock-cress, Kentucky, follows:

[[Page 33080]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.022

    (18) Unit 14: Clements Bluff, Owen County, Kentucky.
    (i) From USGS 1:24,000 quadrangle Gratz, Kentucky; land bounded by 
the following Kentucky State Plane North/NAD83 (feet) coordinates: 
1451615.01,

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349295.36; 1452022.39, 349505.61; 1452910.30, 347908.24; 1452180.35, 
347473.85.
    (19) Unit 15: Monterey U.S. 127, Owen County, Kentucky.
    (i) From USGS 1:24,000 quadrangle Monterey, Kentucky; land bounded 
by the following Kentucky State Plane North/NAD83 (feet) coordinates: 
1462791.17, 342357.03; 1463347.35, 341639.38; 1462109.41, 340778.21; 
1461660.88, 341370.27.
    (20) Unit 16: Craddock Bottom, Owen County, Kentucky.
    (i) From USGS 1:24,000 quadrangles Frankfort East and West, 
Kentucky; land bounded by the following Kentucky State Plane North/
NAD83 (feet) coordinates: 1463039.86, 332602.65; 1463575.00, 332555.43; 
1464377.71, 331784.20; 1464377.71, 329218.68; 1463748.13, 329202.94; 
1463716.65, 330918.53.
    (ii) Map 6, Units 14, 15, and 16, Critical Habitat Proposed for 
Braun's Rock-cress, Kentucky, follows:

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[GRAPHIC] [TIFF OMITTED] TP03JN03.023

    (21) Unit 17: Backbone North, Franklin County, Kentucky.
    (i) From USGS 1:24,000 quadrangle Frankfort East, Kentucky; land 
bounded by the following Kentucky State Plane North/NAD83 (feet) 
coordinates:

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1470487.13, 273240.06; 1471988.00, 273697.42; 1472199.59, 273279.29; 
1471168.97, 272953.00; 1470516.94, 272031.81; 1470339.01, 272116.74.
    (ii) Map 7, Unit 17, Critical Habitat Proposed for Braun's Rock-
cress, Kentucky, follows:

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[GRAPHIC] [TIFF OMITTED] TP03JN03.024

    (21) Index map for Tennessee.
    (i) Data layers defining map unit were created on a base of USGS 
7.5[sec] quadrangles and proposed critical habitat units were then 
mapped in feet

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using Tennessee State Plane, NAD 83, coordinates.
    (ii) Map 8, Index of Critical Habitat Proposed for Braun's Rock-
cress, Tennessee, follows:

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[GRAPHIC] [TIFF OMITTED] TP03JN03.025

    (22) Unit 18: Scales Mountain, Rutherford County, Tennessee.
    (i) From USGS 1:24,000 quadrangle Rockvale, Tennessee; land bounded 
by the following Tennessee State Plane/NAD83 (feet) coordinates (E,N):

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1797871.97, 548892.57; 1800101.59, 549457.83; 1800070.19, 547856.27; 
1797934.77, 547071.19.
    (23) Unit 19: Sophie Hill, Rutherford County, Tennessee.
    (i) From USGS 1:24,000 quadrangle Rockvale, Tennessee; land bounded 
by the following Tennessee State Plane/NAD83 (feet) coordinates (E,N): 
1804270.37, 539691.44; 1805958.29, 539809.20; 1806076.05, 538867.10; 
1804427.38, 538631.58.
    (24) Unit 20: Indian Mountain, Rutherford County, Tennessee.
    (i) From USGS 1:24,000 quadrangle Rockvale, Tennessee; land bounded 
by the following Tennessee State Plane/NAD83 (feet) coordinates (E,N): 
1800305.71, 546168.35; 1802111.40, 546443.12; 1802543.19, 544794.46; 
1800423.48, 544676.69.
    (ii) Map 9, Units 18, 19, and 20, Critical Habitat for the Braun's 
Rock-cress, Tennessee, follows:

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[GRAPHIC] [TIFF OMITTED] TP03JN03.026



[[Page 33089]]


    Dated: May 23, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-13509 Filed 6-2-03; 8:45 am]
BILLING CODE 4310-55-P