[Federal Register Volume 69, Number 107 (Thursday, June 3, 2004)]
[Rules and Regulations]
[Pages 31460-31496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12435]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

  Federal Register / Vol. 69, No. 107 / Thursday, June 3, 2004 / Rules 
and Regulations  

[[Page 31460]]


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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: Final rule

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SUMMARY: We, the Fish and Wildlife Service (Service), designate 
critical habitat for Arabis perstellata (Braun's rock-cress) pursuant 
to the Endangered Species Act of 1973, as amended (Act). This 
endangered species is restricted to two counties (Rutherford and 
Wilson) in Tennessee and three counties (Franklin, Owen, and Henry) in 
Kentucky. We are designating 22 specific geographic areas (units) in 
Kentucky (17 units) and Tennessee (5 units) as critical habitat for 
Arabis perstellata. These units encompass approximately 648 hectares 
(ha) (1,600 acres (ac)) of upland habitat. Kentucky has approximately 
328 ha (810 ac) and Tennessee has approximately 320 ha (790 ac) 
designated as critical habitat for Arabis perstellata.
    In the development of this final rule, we solicited and considered 
data and comments from the public on all aspects of this designation, 
including data on economic and other impacts of the designation. This 
publication also provides notice of the availability of the final 
economic analysis for this designation.

DATES: This rule becomes effective on July 6, 2004.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in preparation of this final rule, are available for 
public inspection, by appointment, during normal business hours at the 
Tennessee Field Office, U.S. Fish and Wildlife Service, 446 Neal 
Street, Cookeville, Tennessee 38501.
    You may obtain copies of the final rule or the economic analysis 
from the field office address above, by calling (931) 528-6481, or from 
our Internet site at http://cookeville.fws.gov.
    If you would like copies of the regulations on listed wildlife or 
have questions about prohibitions and permits, please contact the 
appropriate State Ecological Services Field Office: Tennessee Field 
Office, (ADDRESSES above), or the Kentucky Field Office, U.S. Fish and 
Wildlife Service, 3761 Georgetown Road, Frankfort, KY 40601.

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

SUPPLEMENTARY INFORMATION: 

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's 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 and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return 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) 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 36 percent (445 species) 
of the 1,244 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat. We address the habitat needs 
of all 1,244 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. The Service believes it is these measures that may make 
the difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service 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 the 
Service with little ability to prioritize its 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, the Service's own proposals to list 
critically imperiled species and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to 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.
    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 the 
National Environmental Policy Act (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.

Background

    Arabis perstellata (Braun's rock-cress) is a perennial herb of the 
mustard

[[Page 31461]]

family (Brassicaceae). It was originally described by E. Lucy Braun 
(1940) from specimens collected between 1936 and 1939 in Franklin 
County, Kentucky (see the proposed rule at 69 FR 4274, January 9, 2004, 
for complete information on characteristics, life history, and forest 
associates). 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.
    Two non-native species (Alliaria petiolata (European garlic 
mustard) and Lonicera maackii (amur honeysuckle) compete directly with 
Arabis perstellata for areas of natural disturbance once it has become 
established in a forest. Management schemes for the control of these 
species are being tested, but these nonnative plant species continue to 
spread into natural areas. The presence of these species and 
competition for available habitat and resources poses a severe threat 
to Arabis perstellata. Native plant species may also be an invasive 
threat to Arabis perstellata, particularly Toxicodendron radicans 
(poison ivy), Parthenocissus quinquefolia (Virginia creeper), and 
Galium aparine (bedstraw or cleavers). These species may spread rapidly 
in response to habitat changes and compete with Arabis perstellata (D. 
Lincicome, pers. comm. 2004).
    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.
    Arabis perstellata occurs on slopes composed of calcium carbonate, 
calcium, or limestone in moderately moist to almost dry forests (see 
proposed rule 69 FR 4274 for further information on habitat 
requirements). The soils at Arabis perstellata sites are limestone-
derived, and a rock outcrop component is usually present in the soil 
complex (see proposed rule, 69 FR 4274, for more information on soil 
requirements). Arabis perstellata is presently known from 42 
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 Rutherford and Wilson counties, 
principally along the Stones River.
    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 of this formation. The 
exception is the population in Henry County, Kentucky, occurring on 
what is mapped as Kope and Clays Ferry members, which have a higher 
shale component (Service 1997). However, the plants actually occur on 
limestone outcrops at this site similar to 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 limestone. The primary rocks of the Arabis perstellata 
populations in Rutherford and Wilson Counties are Leipers and Catheys 
Limestone, as well as Bigby-Cannon Limestone (Wilson 1965, 1966a, 
1966b).
    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 publicly 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 from Kentucky and six in Tennessee. The full range of this 
species in Kentucky is an approximately 518-square-kilometer (200-
square-mile) area, with six 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 1996 (KSNPC 1996a). Four previously known populations 
in Tennessee are presumed extirpated (Jones 1991; Tennessee Department 
of Environment and Conservation 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.). On January 3, 1995, (60 FR 56), we published our final rule to 
list Arabis perstellata as endangered. Please refer to the final 
listing rule for a complete description of Federal actions concerning 
this species between the inception of the Act and publication of the 
final listing determination. In the final 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, if 
appropriate, proposed critical habitat designation for Arabis 
perstellata to the Federal Register no later than May 26, 2003, and a 
final decision not less than 12 months after the new prudency 
determination.
    On June 3, 2003, we published a proposed rule in the Federal 
Register (68 FR 33058) which included a finding that critical habitat 
designation was prudent for Arabis perstellata. We

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proposed 20 specific geographic areas (units) in Kentucky (17 units) 
and Tennessee (3 units) as critical habitat for Arabis perstellata. 
These units encompassed approximately 408 ha (1,008 ac). Kentucky had 
approximately 328 ha (810 ac) and Tennessee had approximately 80 ha 
(198 ac) proposed. During the comment period, which ended on August 4, 
2003, we received comments from the Tennessee Division of Natural 
Heritage (TDNH) providing new information regarding the Tennessee 
populations of Arabis perstellata. During a survey conducted by TDNH 
staff in the spring and early summer of 2003, the distribution of 
Arabis perstellata was found to be more widespread at the three extant 
populations (Units 18, 19, and 20) and two new populations were 
documented (Grandfather Mountain and Versailles Knob). As a result of 
this information, we revised our critical habitat designation in 
Tennessee to include the additional areas. A revised proposed rule was 
published in the Federal Register (69 FR 4274) on January 29, 2004. In 
this supplemental proposed rule, we increased the designated critical 
habitat acreage in Tennessee from 80 ha (198 ac) to 320 ha (790 ac). We 
accepted public comments on the revised proposed rule and the revised 
draft economic analysis until March 1, 2004.

Summary of Comments and Recommendations

    In the June 3, 2003, proposed rule and notice of document 
availability (68 FR 33058), we requested that all interested parties 
submit comments or information concerning the designation of critical 
habitat and/or the draft economic analysis for Arabis perstellata. We 
contacted appropriate Federal, State, and local agencies, county 
government, elected officials, scientific organizations, and other 
interested parties and invited them to comment on the proposed critical 
habitat for Arabis perstellata. We provided notification of these 
documents through e-mail, telephone calls, letters, and news releases 
faxed and/or mailed to affected elected officials, media outlets, local 
jurisdictions, and interest groups. We sent press releases to the 
following newspapers on March 29, 2004: The Tennessean, Nashville, 
Tennessee; State Journal, Frankfort, Kentucky; The Daily News Journal, 
Murfreesboro, Tennessee; and the Owenton News Herald, Owenton, 
Kentucky. We posted copies of the proposed critical habitat and draft 
economic analysis on the Service's Tennessee Field Office Internet site 
following their release.
    Based on substantial new information received during the first 
public comment period, we revised the proposed critical habitat in 
Tennessee to include two additional areas determined to be essential to 
the conservation of Arabis perstellata and expand the extent of three 
additional areas that had been already proposed. These revisions to 
proposed critical habitat, reopening of comment period, and notice of 
availability of revised draft economic analysis were published in the 
Federal Register on January 29, 2004 (69 FR 4274). We requested that 
all interested parties submit comments or information concerning the 
revised designation of critical habitat and/or the revised draft 
economic analysis for Arabis perstellata by March 1, 2004. We again 
contacted appropriate Federal, State, and local agencies, county 
governments, elected officials, scientific organizations, and other 
interested parties and invited them to comment on the revised proposed 
critical habitat and/or revised draft economic analysis for Arabis 
perstellata. We also provided notification of these documents through 
e-mail, telephone calls, letters, and news releases faxed and/or mailed 
to affected elected officials, media outlets, local jurisdictions, and 
interest groups. We additionally posted the revised proposed rule and 
economic analysis on the Service's Tennessee Field Office Internet site 
following their release.
    During the first public comment period, we received comments from 
five parties, which included one Federal agency, two State agencies, 
one non-profit agency, and one individual. Of the five parties 
responding, one supported the proposed designation, three were neutral, 
and two wanted additional areas added to the critical habitat proposal. 
None were opposed. Four additional comments were received during the 
second public comment period. One was from a State agency, two were 
from non-profit agencies, and one from an individual. Three supported 
the proposed designation and one was neutral.
    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited independent opinions from four 
knowledgeable individuals who have expertise with the species, with the 
geographic region where the species occurs, and/or familiarity with the 
principles of conservation biology. We received comments from three of 
the four peer reviewers. These are included in the summary below and 
incorporated into this final rule.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat and the draft economic analysis. Substantive comments received 
during the two comment periods have either been addressed below or 
incorporated directly into this final rule. The comments were grouped 
according to peer review or public comments. For readers' convenience, 
we have assigned comments to major issue categories, and we have 
combined similar comments into single comments and responses.

Peer Review Comments

    (1) Comment: The Tennessee Department of Environment and 
Conservation (TDEC) provided additional information concerning four 
plant species that may invade Arabis perstellata habitat and compete 
with Arabis perstellata for habitat and resources. These plant species 
include one additional non-native plant, Lonicera maackii (amur 
honeysuckle) and three native plants, Toxicodendron radicans (poison 
ivy), Parthenocissus quinquefolia (Virginia creeper), and Galium 
aparine (bedstraw or cleavers).
    Our Response: We acknowledge that these additional native and non-
native plants can invade Arabis perstallata habitat particularly when 
the habitat is disturbed due to natural or man-made reasons. We have 
included a discussion of these additional potentially invasive plant 
species in the Background section of this rule and their potential 
threat to Arabis perstallata.
    (2) Comment: The fourth occurrence of Arabis perstallata in 
Tennessee at the Shelby Bottoms Greenway site along the Cumberland 
River in Davidson County has recently been identified and verified as 
Arabis shortii (Short's rock-cress).
    Our Response: The Shelby Bottoms Greenway site along the Cumberland 
River in Davidson County was not included in our initial proposed 
critical habitat designation on June 3, 2003, (68 FR 33058) because the 
area where the population occurred did not contain one or more of the 
primary constituent elements and was not considered to be essential to 
the conservation of Arabis perstallata. Since this information was 
received during our first public comment period, we included a 
discussion of it and its relevance to this designation in our revisions 
to proposed critical habitat on January 29, 2004, (69 FR 4274).
    (3) Comment: A survey for Arabis perstallata, unrelated to this 
critical habitat designation, was conducted in the spring and early 
summer of 2003 by the TDEC personnel. During this survey, the 
documented extent of the distribution and abundance of Arabis

[[Page 31463]]

perstallata was expanded at three occurrences in Tennessee. 
Additionally, two new populations of Arabis perstallata were documented 
in Rutherford and Wilson Counties, Tennessee. As a result of this new 
information, the critical habitat designation in Tennessee does not 
include all of the areas essential to the conservation of Arabis 
perstallata.
    Our Response: We acknowledged in the June 3, 2003, proposal (68 FR 
33058) that we had received new information from TDEC regarding two new 
populations of Arabis perstellata, but due to time and budget 
constraints, we were unable to adequately and formally analyze them for 
inclusion as proposed critical habitat in that document. We stated that 
we would conduct the required analysis of these two sites to determine 
if the areas are essential to the conservation of Arabis perstellata. 
If the areas were found to be essential, our intent was to include them 
in the final designation. We found during the original public comment 
period that all the existing sites in Tennessee had additional unknown 
plants, and that a new site was also discovered in Rutherford County. 
Upon receiving this information, we analyzed all five sites (additions 
to three extant sites plus the two new sites) and determined that they 
are all essential to the conservation of Arabis perstallata. We then 
proposed revisions to the original proposed critical habitat 
designation that included the additional sites that have been 
documented in Tennessee. These revisions were published in the Federal 
Register on January 29, 2004 (69 FR 4274), along with the reopening of 
the comment period (30 days) and the notice of availability of the 
revised draft economic analysis. We believe that, based on the best 
available information, we have designated as critical habitat the areas 
essential to the conservation of Arabis perstallata.
    (4) Comment: The Kentucky State Nature Preserves Commission (KSNPC) 
provided updated information for the site identified as critical 
habitat Unit 12 and for a new population of Arabis perstallata located 
geographically between critical habitat Unit 6 and Unit 8 on the west 
side of the Kentucky River. They believed that this new information 
should be taken into consideration during the development of the final 
designation.
    Our Response: We greatly appreciate the new information concerning 
Arabis perstallata provided by KSNPC. Following a review of this 
information we determined that these areas are not essential to the 
conservation of the species. The criteria used for selecting essential 
sites can be found in the June 3, 2003, proposed designation of 
critical habitat for Arabis perstallata (please refer to the Critical 
Habitat section of the proposed rule (68 FR 33058) and this final 
rule), but generally included a combination of the recovery plan 
objectives and criteria, and the four primary constituent elements. 
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. At this time, we 
believe the areas we have designated as critical habitat in Kentucky 
and Tennessee are adequate to provide for the conservation of the 
species.

Public Comments

    (5) Comment: The Natural Resources Conservation Service (NRCS) in 
Tennessee addressed the issue of whether the proposed critical habitat 
would impact the Wildlife Habitat Incentives Program and/or the 
Environmental Quality Incentives Program that they administer. Based on 
the allowable practices under each program and the type of habitat 
(i.e., steep, rocky terrain) proposed as critical habitat for Arabis 
perstellata, NRCS projected very few informal consultations under 
section 7 of the Act would be required as a result of the designation 
of critical habitat. They further indicated that they should not 
experience a significant economic impact as a result of the 
designation.
    Our Response: We concur with NRCS's findings that the critical 
habitat designation in Tennessee would result in few, if any, section 7 
consultations on the Wildlife Habitat Incentives and/or the 
Environmental Quality Incentives Programs. We also do not believe NRCS 
would experience a significant economic impact from the designation of 
critical habitat in Tennessee. This assertion is further supported by 
the information contained within our economic analysis of the 
designation of critical habitat for Arabis perstallata.
    (6) Comment: One commenter asked whether we just designated 
everything as critical without an analysis of how much habitat an 
evolutionarily significant unit needs.
    Our Response: In section 3(5)(A) of the Act, critical habitat is 
defined as ``(i) the specific areas within the geographical area 
occupied by the species * * * on which are found those physical and 
biological features (I) essential to the conservation of the species 
and (II) which may require special management considerations or 
protection; and (ii) specific areas outside of the geographical area 
occupied by the species * * * [that] are essential to the conservation 
of the species''. Pursuant to the Act and our implementing regulations, 
we must determine whether the designation of critical habitat for a 
given species is prudent and determinable. If it is both, then we 
conduct a focused analysis to determine and delineate the specific 
areas, within the geographical area occupied by the species, that 
contain the physical and biological features essential to the 
conservation of the species. Once these areas are defined, a 
determination is then made as to whether additional specific areas 
outside of the geographical area occupied by the species are required 
for the conservation of the species. In conducting our analyses, we use 
the best available scientific and commercial data available. Our 
analyses take into consideration specific parameters including (1) 
space for individual and population growth and normal behavior; (2) 
food, water, air, light, minerals or other nutritional or physiological 
requirements; (3) cover or shelter; (4) sites for breeding, 
reproductions, rearing of offspring, germination or seed dispersal; and 
(5) habitats that are protected from disturbance or are representative 
of the historical or ecological distribution of the species (50 CFR 
424.12(b)). Consequently, we do take into consideration all available 
information concerning a species, its habitat, ecology, and threats and 
conduct an analysis to determine which specific areas are essential to 
its conservation. This final designation of critical habitat for Arabis 
perstellata has been developed using the approach discussed above and 
constitutes our best assessment of the areas essential to its 
conservation.
    Further, the phrase, ``evolutionarily significant unit'' is used by 
the National Marine Fisheries to distinguish distinct populations or 
evolutionary segments of anadromous salmon species. It reflects that 
authority under the Act to consider distinct population segments of 
vertebrate species for addition to the lists of threatened and 
endangered species. However, the Act only allows listing of plants at 
the species and subspecies level, so the ``evolutionarily significant 
unit'' concept cannot be applied to federally listed plant species 
under our jurisdiction.
    (7) Comment: The proposed rule to designate critical habitat for 
Arabis

[[Page 31464]]

perstellata did not discuss the extent of private lands encompassed 
within the boundaries of the proposal.
    Our Response: On page 33064 of our proposed rule (June 3, 2003, 68 
FR 33058) we have included a table, Table 1--Approximate Area (Hectares 
and Acres) of Proposed Critical Habitat by Unit for Arabis perstellata, 
that clearly identifies the extent of private land in the proposal by 
critical habitat unit. This table is similarly included in this final 
rule and has been updated to incorporate the revisions to critical 
habitat identified in our January 29, 2004, notice (69 FR 4274). 
Additionally, in the June 3, 2003, proposed critical habitat rule, the 
January 29, 2004, notice, and this final rule, landownership is 
discussed in the textual descriptions for each critical habitat unit 
under the section titled ``Critical Habitat Unit Descriptions''.
    (8) Comment: The agency's approach to critical habitat must be 
improved by banning hunting, trapping, grazing, logging, mining, 
snowmobile use, ATV (all terrain vehicles) use, and Jet Ski use in 
these areas immediately. Such uses cause pollution and are anti-
environmental and must be banned to preserve endangered plants and 
animals.
    Our Response: Activities such as mining, snowmobile use, and Jet 
Ski use are not known to occur in areas being designated as critical 
habitat for Arabis perstellata since the proper landscape and/or use 
areas for such activities do not exist within any of the critical 
habitat units. Additionally, activities such as hunting, trapping, and 
ATV use are unlikely to occur in areas being designated as critical 
habitat for Arabis perstellata due to the steep, rocky slopes this 
plant occupies. We have no records of any adverse impact to Arabis 
perstellata or its habitat from these three uses. We acknowledged in 
the June 3, 2003, proposed critical habitat rule that grazing and 
timber harvesting (logging) are potential threats to the species. This 
critical habitat designation will serve to control those potential 
threats only to the extent that they are part of a Federal action 
subject to a consultation under section 7 of the Act. We are committed 
to working with the private and public landowners regarding the 
conservation of Arabis perstellata and the need to protect the species 
and its habitat.
    (9) Comment: One commenter stated the belief that the text in the 
sections, Designation of Critical Habitat Provides Little Additional 
Protection to Species, Role of Critical Habitat in Actual Practice of 
Administering and Implementing the Act, and Procedural and Resource 
Difficulties in Designating Critical Habitat, of the proposed rule is 
factually inaccurate on three specific topics: (1) That critical 
habitat provides little additional protection to species, (2) that 
there are insufficient budgetary resources and time to designate 
critical habitat for listed species, and (3) that the statement, 
``these measures * * * may make the difference between extinction and 
survival for many species'' applies a standard of survival which is 
different than the standard of conservation that is mandated by the 
Act.
    Our Response: While we understand and appreciate the concerns 
raised by the commenter, we respectfully disagree.
    As discussed in the sections, Designation of Critical Habitat 
Provides Little Additional Protection to Species, Role of Critical 
Habitat in Actual Practice of Administering and Implementing the Act, 
and Procedural and Resource Difficulties in Designating Critical 
Habitat and other sections of this and other critical habitat 
designations, we believe that, in most cases, conservation mechanisms 
provided through section 7 consultations, the section 4 recovery 
planning process, the section 9 protective prohibitions of unauthorized 
take, section 6 funding to the States, the section 10 incidental take 
permit process, and cooperative programs with private and public 
landholders and tribal nations provide greater incentives and 
conservation benefits than does the designation of critical habitat.
    As iterated in the sections, Designation of Critical Habitat 
Provides Little Additional Protection to Species, Role of Critical 
Habitat in Actual Practice of Administering and Implementing the Act, 
and Procedural and Resource Difficulties in Designating Critical 
Habitat, we have been inundated with lawsuits for our failure to 
designate critical habitat, and we face a growing number of lawsuits 
challenging critical habitat determinations once they are made. These 
lawsuits have subjected the Service 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 the Service 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. As an example, in 
FY 2003, the Service estimated that there was a gap of $1,995,757 
between our FY 2003 appropriation and the total cost of complying with 
court orders and settlement agreements in FY 2003. This funding 
shortfall was caused by several circumstances. A number of court orders 
that were issued after the Service compiled its budget request 
dramatically increased the amount of funding needed for judicially-
mandated critical habitat work. In addition, before the critical 
habitat work required by the courts had exceeded the amount of the FY 
2003 budget request, the Service entered into a number of court-
approved settlements requiring us to perform further critical habitat 
work in FY 2003. Several critical habitat actions also required a 
greater expenditure of resources than the Service anticipated. With the 
$6,000,000 of critical habitat funding that was available in FY 2003, 
we completed 32 critical habitat designations pursuant to court orders 
and settlement agreements. However, we were not able to complete work 
on 21 critical habitat actions for 30 species, which had court-ordered 
deadlines requiring critical habitat actions to be completed after July 
28, 2003, due to insufficient resources.
    (10) Comment: The critical habitat proposal does not go far enough 
to protect habitat for the species' recovery. The commentor urges the 
Service to include areas historically occupied by Arabis perstellata.
    Our Response: The delisting criteria identified in the recovery 
plan for Arabis perstellata requires 20 geographically distinct, self-
sustaining populations, consisting of 50 or more plants each, protected 
in Kentucky and Tennessee. Additionally, those populations must be 
stable or increasing after five years of monitoring following 
reclassification to threatened status. Because critical habitat is 
defined as those specific areas essential to the conservation of the 
species, and since the Act defines conservation similarly to recovery, 
we have based the designation of critical habitat for Arabis 
perstellata on the criteria necessary to delist or recover the species. 
Consequently, we have designated units containing 22 (17 in Kentucky 
and 5 in Tennessee) populations that will meet the criteria for being 
geographically distinct, self-sustaining, and consisting of 50 or more 
plants. Therefore, we believe that we have adequately identified and 
designated as critical habitat those areas essential to the 
conservation of Arabis perstellata. We do not believe that designating 
additional historically occupied habitat is essential to the 
conservation of this species. Please refer to the Criteria Used to 
Identify Critical Habitat section of this final rule for further 
discussion of the criteria used in

[[Page 31465]]

the development of this final designation.
    (11) Comment: We received some general comments on population 
viability analysis (PVA) and how it can be used to suggest where 
habitat restoration can make a significant contribution to species 
survival.
    Our Response: While PVAs can be useful scientific and conservation 
tools in certain situations, we did not believe, in this case, a PVA 
was necessary to determine the physical and biological features, and 
therefore, the specific areas, that are essential to the conservation 
of Arabis perstellata. We believe that the biological and scientific 
analyses conducted during the development of the recovery plan for this 
species was sufficient to identify the amount of habitat and number of 
populations, including specific habitat and population criteria, to 
recover the species. As previously discussed, we based this critical 
habitat designation on those criteria established for the recovery 
plan, and believe them to be adequate to conserve the species.
    (12) Comment: The commentor noted that our maps of proposed 
critical habitat contained in the June 3, 2003, Federal Register (68 FR 
33072 and 33086) are textbook designs of fragmentation. The commentor 
requested that where possible, we should establish habitat connectivity 
to prevent genetic isolation of the existing populations.
    Our Response: We acknowledge that our understanding of the genetic 
exchange between populations of Arabis perstellata is limited. We 
believe, and the experts agree, that Arabis perstellata is most likely 
pollinated by insects, but we do not know whether it 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. Also, the species requires specialized habitat and appears 
to show some inability to expand into available or similar habitats. 
This inability to compete has likely limited its distribution and 
abundance. Therefore, habitat connectivity does not appear to be a 
limiting factor since 17 populations in two counties in Kentucky and 5 
populations in two counties in Tennessee are thriving under present 
conditions. We believe that our present critical habitat designations 
contain habitat that is essential to the conservation of this species.
    (13) Comment: We received a comment that the limestone soils that 
Arabis perstellata needs are a perfect example of habitat 
specialization and, therefore, these specialized areas must be 
protected.
    Our Response: We are designating those specific areas that are 
defined by the physical and biological features essential to the 
conservation of Arabis perstellata based on the criteria for delisting 
identified in the recovery plan. As discussed in the Primary 
Constituent Elements section of the final rule and the previous 
proposal, limestone substrates are identified as a primary constituent 
element for Arabis perstellata. Therefore, lands containing limestone 
substrates that also contain self-sustaining populations of 50 or more 
plants of Arabis perstellata are being designated as critical habitat 
and afforded the protections thereof.
    (14) Comment: Stones River National Battlefield in Rutherford 
County, Tennessee, has been identified as having viable populations of 
Arabis perstellata. The commentor requests that we designate critical 
habitat at Stones River National Battlefield and any other areas on 
public lands where the species could be reintroduced.
    Our Response: Based on our current information regarding this 
species, it is not known to occur at Stones River National Battlefield 
nor does this public land have suitable habitat for the reintroduction 
of Arabis perstellata. Additionally, we are not aware of any public 
lands that have suitable habitat for the reintroduction of this species 
in Kentucky or Tennessee. However, we welcome any additional specific 
information concerning locations of Arabis perstellata and habitat 
defined by the primary constituent elements as being essential to its 
conservation.
    (15) Comment: In conducting our economic analyses of critical 
habitat designations pursuant to section 4(b)(2) of the Act, we must 
solicit data regarding all economic impacts associated with a listing 
as part of the critical habitat designation, including sections 9 and 
10 of the Act.
    Our Response: We are not required by statute or implementing 
regulation to collect information pertaining to and consider economic 
impacts associated with the listing of a species, even while conducting 
the required economic impact analyses for critical habitat pursuant to 
section 4(b)(2) of the Act. However, because it may be difficult to 
distinguish potential economic effects resulting from a species being 
listed as endangered or threatened relative to those potential economic 
effects resulting from designating critical habitat for a species, we 
often collect economic data associated with the species being listed to 
provide for a better understanding of the current economic baseline 
from which to make more informed decisions as we conduct our required 
analyses under section 4(b)(2) of the Act. This approach is consistent 
with the ruling of the 10th Circuit Court of Appeals in N.M. Cattle 
Growers Ass'n v. USFWS, 248 F.3d 1277 (2001).
    (16) Comment: The final rule designating critical habitat for 
Arabis perstellata must include an explanation of the cost/benefit 
analysis for both why an area was included and why an area was 
excluded.
    Our Response: Pursuant to section 4(b)(2) of the Act, we are 
required to take into consideration the economic impact, national 
security, and any other relevant impact of specifying any particular 
area as critical habitat. We also may exclude any area from critical 
habitat if we determine that the benefits of such exclusion outweigh 
the benefits of specifying such area as part of the critical habitat, 
providing that the failure to designate such area will not result in 
the extinction of the species. We use information from our economic 
analysis, or other sources such as public comments, management plans, 
etc., to conduct this analysis. For us to consider excluding an area 
from the designation, we are required to determine that the benefits of 
the exclusion outweigh the benefits (i.e., biological or conservation 
benefits) of including the specific area in the designation. This is 
not simply a monetary cost/benefit analysis, however. This is a policy 
analysis, and can include consideration of the impacts of the 
designation, the benefits to the species from the designation, as well 
as policy considerations such as national security, tribal 
relationships, impacts on conservation partnerships and other public 
policy concerns. This evaluation is done on a case-by-case basis for 
particular areas based on the best available scientific and commercial 
data. A decision to exclude an area is discretionary with the 
Secretary. There is no requirement that we conduct a cost/benefit 
analysis for including areas within critical habitat, or that we must 
exclude an area based on our analysis of costs and benefits.
    (17) Comment: The final rule must clearly explain why specific 
areas with the essential features may be in need of special management 
considerations or protection.
    Our Response: Please refer to the Background, Primary Constituent 
Elements, Need for Special Management Consideration or Protection 
sections,

[[Page 31466]]

and Critical Habitat Unit Descriptions sections of this rule for a more 
detailed discussion of needs for special management and protections. 
However, at this time we are not aware of any special management or 
protections afforded the physical and biological features defined by 
the critical habitat units.
    (18) Comment: As currently drafted, the proposed rule evidences 
major analytical gaps, resulting in many miles of water crossing four 
States being ``critical habitat'' (and triggering the concomitant 
regulatory burdens such designations impose) without the adequate data 
or analysis to support such a decision.
    Our Response: Critical habitat for Arabis perstellata is only being 
designated in Kentucky and Tennessee and encompasses only upland 
habitat. We have conducted the required analysis (see ``Criteria Used 
to Identify Critical Habitat'' above and the final Economic Analysis) 
and determined that out of the 42 known Arabis perstellata sites, only 
22 sites are essential for the conservation of this species.

Summary of Changes From the Proposed Rule

    Other than minor clarifications and incorporation of additional 
information on the species' range in Tennessee, we made three 
substantive changes to our designation:
    (1) We modified one of the primary constituent elements to include 
Lonicera maackii as another nonnative species that is noted to have 
negatively impacted Arabis perstellata populations in Tennessee.
    (2) Critical units 18, 19, and 20 in Tennessee were increased in 
size and two new units were added in Tennessee upon obtaining new 
information from TDEC during the first comment period. The revised 
designation for Tennessee was increased from 80 ha (198 ac) to 320 ha 
(790 ac).
    (3) The location coordinates associated with Unit 2 and Unit 12 in 
Kentucky were discovered to be incorrect when we were making the 
reviews for this final rule. We have changed the coordinates for these 
two units and have verified the coordinates for all units to ensure 
that they are correct.

Critical Habitat

    Please refer to the proposed rule to designate critical habitat for 
the Arabis perstellata for a general discussion of sections 3, 4, and 7 
of the Act and our policy in relation to the designation of critical 
habitat (68 FR 33058; June 3, 2003).

A. Methods

    As required by section 4(b) of the Act and its implementing 
regulations (50 CFR 424.12), this proposal is based on the best 
scientific and commercial 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.

B. 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 
designate 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 rule and the previously published proposed rule (69 FR 
4274). The designated critical habitat is designed to provide 
sufficient habitat to maintain self-sustaining populations of Arabis 
perstellata throughout its range, and to provide those physical or 
biological features essential for the conservation of the species. 
These physical or biological features provide for the following--(1) 
Individual and population growth, including sites for germination, 
pollination, reproduction, pollen and seed dispersal, and seed dormancy 
(Constituent element 1, 2, 3, and 4.); (2) areas that provide basic 
requirements for growth, such as water, light, and minerals 
(Constituent element 1, 2, and 4); and (3) areas that support 
populations of pollinators and seed dispersers (Constituent element 1, 
2, and 4); and (4) habitats that are representative of the historic 
geographical and ecological distribution of the species (Constituent 
element 1, 2, 3, and 4). Based on the occurrence of this species and 
field data, all of these physical or biological features are essential 
to the conservation 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 designating 
as critical habitat provide some or all of the physical or biological 
features essential for the conservation of this species.
    Based on the best available information, primary constituent 
elements essential for the conservation of Arabis perstellata are:
    (1) Relatively undisturbed, closed canopy mesophytic and sub-xeric 
forest with large, mature trees (such as sugar maple (Acer saccharum), 
chinquapin oak (Quercus muhlenbergii), hackberry (Celtus occidentalis), 
or Ohio buckeye (Aesculus glabra)), and
    (2) Open forest floors with little herbaceous cover and leaf litter 
accumulation with natural disturbance to allow for Arabis perstellata 
germination and seedling germination, and
    (3) Areas with few introduced weed species such as Alliaria 
petiolata or Lonicera maackii, and
    (4) Rock outcrops on moderate to steep calcareous slopes defined 
by:
    (a) Ordovician limestone, in particular the Grier, Tanglewood, and 
Macedonia Bed Members of the Lexington Limestone in Kentucky and the 
Lebanon, Carters, Leipers, and Catheys, and Bigby-Cannon Limestones in 
Tennessee; and
    (b) Limestone soils such as the Fairmont Rock outcrop complexes in 
Kentucky and the Mimosa Rock outcrop complexes in Tennessee.

[[Page 31467]]

    Based on the specific requirements of this species, units contain 
many of the same physical and biological features. Management, 
therefore, will address both the maintenance of these features and the 
reduction of threats specific to each unit.

C. Criteria Used to Identify Critical Habitat

    We considered several factors in the selection 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 criteria identified in 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 species' range 
in order to decrease the probability of a catastrophic event impacting 
all the protected populations.
    Following the completion of the final recovery plan and during the 
development of the proposed critical habitat designation for Arabis 
perstellata, two additional populations were discovered in Tennessee. 
The discovery of these two populations was discussed in the proposed 
critical habitat rule, but due to the court-ordered date for completion 
of the proposed rule there was insufficient time to conduct the 
appropriate analysis to determine if these two populations were 
essential to the conservation of the species and should be included in 
the designation. We subsequently conducted an analysis of these 
populations based on the criteria identified in the final recovery plan 
and the physical and biological features essential to the conservation 
of the species (i.e., primary constituent elements) identified herein. 
On the basis of that analysis and the determination that the protection 
of the two additional sites in Tennessee, where there were previously 
only three populations (all meeting the recovery and critical habitat 
criteria), will provide for greater long-term survivability and 
conservation of the species, we determined that these two newly 
discovered populations are essential to the conservation of Arabis 
perstellata. As such, they were proposed to be included in the 
designation in a revised proposed rule published in the Federal 
Register (69 FR 4274) on January 29, 2004, and have been subsequently 
included in this final designation bringing the total number of sites 
to 22.
    Our approach to delineating specific critical habitat units, based 
on the 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.
    Based on information concerning historical occurrences of Arabis 
perstellata, there were historically a total of 56 populations, nine 
populations in Tennessee and 47 in Kentucky. Four of the populations in 
Tennessee and ten in Kentucky no longer have plants or the primary 
constituent elements (Jones 1991; Tennessee Department of Environment 
and Conservation 2000), and therefore, are not considered to be 
essential to the conservation of Arabis perstellata.
    Of the 42 remaining historic locations of Arabis perstellata in 
Kentucky (37) and Tennessee (5), we identified 20 as having fewer than 
50 plants and degraded habitat. These sites are, therefore, not 
considered to be essential to the conservation of Arabis perstellata. 
The 22 remaining locations contain populations of Arabis perstellata in 
which greater that 50 plants have been documented and the primary 
constituent elements for the species as defined in this rule. These 22 
locations are considered to be essential to the conservation of Arabis 
perstellata, and as such, are being designated as critical habitat.
    The 22 units in this designation include a considerable part, 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 critical habitat designation should not 
diminish their individual or cumulative importance to the species. 
Rather, it is our determination that the habitat contained within the 
22 units included in this final rule constitutes our best determination 
of areas essential for the conservation of Arabis perstellata. The 22 
units we are designating as critical habitat encompass approximately 
648 ha (1,600 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 revise critical habitat, or 
refine the boundaries of critical habitat as appropriate. Sites that 
are occupied by this plant that are not being designated 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).

D. Mapping

    Once we determined that 22 populations are essential to the 
conservation of Arabis perstellata, we used site-specific information 
to determine the extent of these populations. The designated critical 
habitat units were delineated by screen digitizing polygons (map units) 
using ArcView, a computer Geographic Information Systems (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 designated critical habitat in Kentucky and 
Tennessee State Plane/NAD83 coordinates to designate the boundaries of 
the designated critical habitat in Tennessee.

E. Need for Special Management Consideration or Protection

    An area designated as critical habitat contains one or more of the 
primary constituent elements that are essential to the conservation of 
the species (see ``Primary Constituent Elements'' section). When 
designating critical habitat, we assess whether the areas

[[Page 31468]]

determined to be essential for conservation may require special 
management considerations or protection. 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. Critical habitat designations apply only to Federal activities 
or those funded or authorized by a Federal agency.
    The primary threats to this species rangewide 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. Various activities in or 
adjacent to each of the critical habitat units described in this final 
rule may affect one or more of the primary constituent elements that 
are found in the unit. These activities include, but are not limited 
to, ground disturbances that destroy or degrade primary constituent 
elements of the plant, activities that directly or indirectly affect 
Arabis perstellata plants or underlying seed bank, activities that 
encourage the growth of Arabis perstellata competitors, and activities 
that significantly degrade or destroy Arabis perstellata pollinator 
populations.
    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 publicly 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.
    We have determined that the critical habitat units may require 
special management or protection, largely because no long-term 
protection or management plans exist for any of the units and due to 
the existing threats to this plant. Absent special management or 
protection, these 22 units are susceptible to existing threats and 
activities such as the ones listed in the ``Effects of Critical 
Habitat'' section, which could result in degradation and disappearance 
of the populations and their habitat.

F. Critical Habitat Designation

    Table 1 summarizes the location and extent of designated critical 
habitat. We provide general descriptions of the boundaries of 
designated critical habitat units below.

       Table 1. Approximate Area (Hectares and Acres) of 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. Trib to South Benson Ck..........  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 Hills...............  Franklin/Kentucky......  Private................           20           49
11. U.S. 127........................  Franklin/Kentucky......  Private................           11           27
12. Camp Pleasant Branch............  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................          103          255
19. Sophie Hill.....................  Rutherford/Tennessee...  Private................           53          132
20. Indian Mountain.................  Rutherford/Tennessee...  Private................           87          214
21. Grandfather Knob................  Wilson/Tennessee.......  Private................           43          106
22. Versailles Knob.................  Rutherford/Tennessee...  Private................           34           83
    Total...........................  .......................  .......................          648        1,600
----------------------------------------------------------------------------------------------------------------

G. Critical Habitat Unit Descriptions

    We are designating a total of 22 critical habitat units for Arabis 
perstellata in Kentucky and Tennessee--14 critical habitat units in 
Franklin County, Kentucky; three units in Owen County, Kentucky; four 
units in Rutherford County, Tennessee; and one unit in Wilson 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 and commercial 
information, we determined that the 22 critical habitat units contain 
the primary constituent elements essential to the conservation of 
Arabis perstellata. Additionally, these 22 sites 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 22 sites contain the highest-quality populations in 
terms of

[[Page 31469]]

size and habitat that are presently known. The remaining known 
populations (20) of Arabis perstellata do not meet these criteria, 
because each has fewer than 50 plants occurring on degraded sites, 
making their long-term viability questionable. As such, based on the 
best available information, we do not believe that these 20 sites are 
essential to the conservation of Arabis perstellata.
    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. Information on threats to specific units is provided 
where available.
    Based on the specific requirements of this species, units contain 
many of the same physical and biological features. Management, 
therefore, will address both the maintenance of these features and 
reduction of threats specific to each unit. Generally, Arabis 
perstellata requires relatively undisturbed, closed canopy mesophytic 
and sub-xeric forest with large, mature trees (e.g., sugar maple (Acer 
saccharum), chinquapin oak (Quercus muhlenbergii), hackberry (Celtus 
occidentalis), or Ohio buckeye (Aesculus glabra)). Removal of canopy 
trees may result in detrimental effects on Arabis perstellata. This 
species also requires open forest floors with little herbaceous cover 
and leaf litter accumulation with natural disturbance to allow for 
Arabis perstellata germination and seedling germination. Minimization 
of unnatural disturbance (e.g., trampling, grazing) may be managed 
through fencing or other access restrictions around features important 
to the species and existing populations. Areas with few introduced 
weeds such as Alliaria petiolata or Lonicera maackii are important 
because of the competition existing between the species. Arabis 
perstellata is a poor competitor with very specific habitat 
requirements. Therefore, removal of invasive species is already used in 
management for this species and will likely be used in future 
management.
    Arabis perstellata is found specifically on rock outcrops on 
moderate to steep calcareous slopes. Additionally, the plant appears to 
prefer Ordovician limestone, in particular the Grier, Tanglewood, and 
Macedonia Bed Members of the Lexington Limestone in Kentucky and the 
Lebanon, Carters, Leipers, and Catheys, and Bigby-Cannon Limestones in 
Tennessee; and Limestone soils such as the Fairmont Rock outcrop 
complexes in Kentucky and the Mimosa Rock outcrop complexes in 
Tennessee. Arabis perstellata has been documented on these specific 
soil series. While management measures may be limited, protection of 
these soils and rock outcrops in the range of this species is 
important.
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 over 
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 (Kentucky State Nature 
Preserves 2003).
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 (Kentucky State Nature 
Preserves 2003).
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. It 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 (Kentucky State Nature Preserves 
2003).
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 (Kentucky State Nature 
Preserves 2003).
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, 
hundreds of plants were found along the south-facing slope throughout 
the ravine system (Kentucky State Nature Preserves 2003).
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 (Kentucky State Nature Preserves 2003).
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, several hundred plants were 
found on the south-facing slope (Kentucky State Nature Preserves 2003).
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, hundreds 
of plants were found (Kentucky State Nature Preserves 2003).
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 is approximately 30 ha (74 ac) in this unit. In 1990, more than 
250 plants were found on the northeast,

[[Page 31470]]

southwest, and northwest-facing slopes (Kentucky State Nature Preserves 
2003).
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 (Kentucky State Nature 
Preserves 2003).
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. The site is privately owned. This unit 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 (Kentucky State Nature Preserves 2003).
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, over 100 plants were found along the lower northwest-facing 
slope. Plants at this site are threatened by competition from weeds 
(Kentucky State Nature Preserves 2003).
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 hundred plants were 
found along the top of the ridge on the northeast-facing slope 
(Kentucky State Nature Preserves 2003).
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 (Kentucky State Nature 
Preserves 2003).
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. It 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 
(Kentucky State Nature Preserves 2003).
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. The site 
contains approximately 23 ha (57 ac). In 1996, over 150 plants were 
found. In 1996, there was evidence of logging in the surrounding area 
(Kentucky State Nature Preserves 2003).
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 (Kentucky State Nature Preserves 2003).
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. This unit is 103 ha (255 ac) in size and consist of three knobs. 
Plants were first observed at this site in 1985 only on the easternmost 
knob. In 2003, the central and eastern knobs contained more than 200 
plants and the western knob contained more than 100 plants (Tennessee 
Department of Environment and Conservation 2003). 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 and 
Townsel Hills which lies between Newman and Coleman Hill Roads. The 
properties at these sites are privately owned. The unit is 
approximately 53 ha (132 ac) in size and consists of two hills. The 
first observance of Arabis perstellata on this site was in 1991 on 
Sophie Hill. In 2000, more than 200 plants were found on the northwest 
side of Sophie Hill. In 2003, in excess of 300 plants were documented 
on the adjacent Townsel Hill. Due to the physical proximity of the two 
locations, Sophie Hill and Townsel Hill, we believe that the 
occurrences of Arabis perstellata documented at these sites are one 
population, containing over 500 standing plants (Tennessee Department 
of Environment and Conservation 2003).
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 87 ha (214 ac) and 
consists of three knobs. In 2000, over 2,600 plants were found on the 
eastern and central knobs. In 2003, Arabis perstellata was documented 
at two locations on the western knob and consisted of more than 300 
plants. Because of the proximity of the occurrences, it is assumed that 
these occurrences constitute one population. This unit is the best site 
for Arabis perstellata in Tennessee. Logging is the biggest threat to 
this exceptional site (Tennessee Department of Environment and 
Conservation 2003).
Unit 21. Grandfather Knob in Wilson County, Tennessee
    This unit is located 1.8 km (1.1 miles) west of Cainesville between 
State Route 266 (Cainesville Road) and Spain Hill Road. This site is 
privately owned. The unit is 43 ha (106 ac) in size and consists of two 
sites that contain Arabis perstellata in excellent habitat. These 
plants were located in 2003 and represent the first documented 
occurrence of Arabis perstellata in Wilson County. More than 100 plants 
occur at the two sites, and due to their physical proximity, we believe 
that they comprise a single population. This population is 32 km (20 
miles) from the nearest extant Arabis perstellata population in 
Tennessee (Tennessee Department of Environment and Conservation 2003). 
This population is an important find because it could

[[Page 31471]]

reduce the likelihood of one catastrophic event destroying all 
populations in Tennessee (Units 18, 19, and 20 all occur within close 
proximity of each other).
Unit 22. Versailles Knob in Rutherford County, Tennessee
    Unit 22 is located 1.3 km (0.8 mile) south of Versailles between 
Versailles Road and Bowles Road. The property at this site is privately 
owned. The unit size is approximately 34 ha (83 ac). This population 
was first discovered in 2003 and contains more than 200 plants. This 
population is 18 km (11 miles) from the nearest extant Arabis 
perstellata population in Tennessee, making this, like Unit 21, 
important to the long-term persistence of the species in Tennessee 
(Tennessee Department of Environment and Conservation 2003).

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. Please refer to the proposed 
rule to designate critical habitat for Arabis perstellata for a 
detailed discussion of section 7 of the Act in relation to the 
designation of critical habitat (68 FR 33058; June 3, 2003).
    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, construction, 
road building, etc.);
    (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, road 
building, etc.);
    (3) Activities that encourage the growth of Arabis perstellata 
competitors (e.g., widespread fertilizer application, road building, 
clearing, logging, etc.); 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 Arabis perstellata was listed on January 3, 1995 (60 FR 56), 
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 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, 
and for inquiries regarding prohibitions and permits, please 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 impact, national security, and any 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 an analysis 
of the economic impacts of designating these areas as critical habitat. 
The economic analysis was 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, 248 F.3d 1277 (2001). It was available for public 
review and comment during the comment periods for the proposed rule. 
The final economic analysis is available from our Web site at http://cookeville.fws.gov or by contacting our Tennessee Field Office (see 
ADDRESSES).
    The largest single category of costs expected from this designation 
of critical habitat is attributable to technical assistance efforts 
(approximately 33 percent, or $91,000) involving consultation under 
section 7 of the Act. Forestry projects will be most

[[Page 31472]]

affected by the designation, with consultations comprising about 27 
percent of the total economic impact. In addition to forestry projects, 
activities potentially affected by the designation of critical habitat 
for Arabis perstellata are utilities, development, and road 
construction and maintenance. The total expected cost of this 
designation in present value terms is $47,000 to $209,000, or about 
$7,000 to $30,000 per year. This range reflects the range in estimates 
of the number of consultations for forestry and utilities activities, 
and the range in administrative consultation costs.
    Benefits arising from designation of critical habitat for Arabis 
perstellata may include preservation of the endangered species, 
increased support for conservation efforts, the education/information 
value of the designation, and reduced uncertainty regarding the extent 
of essential Arabis perstellata habitat.
    Pursuant to section 4(b)(2) of the Act, we must consider any other 
relevant impact of designating critical habitat for Arabis perstellata 
in addition to economic impacts. We determined that the lands within 
the designation of critical habitat for Arabis perstellata are not 
owned or managed by the Department of Defense, there are currently no 
habitat conservation plans for Arabis perstellata, and the designation 
does not include any Tribal lands or trust resources. There is 
currently one management plan in existence for the species. Strohmeiers 
Hills in Kentucky, is under a management agreement with the Kentucky 
Natural Heritage Program. The agreement is nonbinding and does not 
restrict the property owner's activities or property rights. We 
anticipate no impact to national security, Tribal lands, partnerships, 
or habitat conservation plans from this critical habitat designation.
    Based on the best available information including the prepared 
economic analysis, we believe that all of these units are essential for 
the conservation of this species. Our economic analysis indicates an 
overall low cost resulting from the designation. Therefore, we have 
found no areas for which the benefits of exclusion outweigh the 
benefits of inclusion, and so have not excluded any areas from this 
designation of critical habitat for Arabis perstellata based on 
economic impacts.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. As such, 
the Office of Management and Budget (OMB) has reviewed this rule. We 
prepared an economic analysis of this action to meet the requirement of 
section 4(b)(2) of the Endangered Species Act to determine the economic 
consequences of designating the specific areas as critical habitat. The 
draft economic analysis was made available for public comment and we 
considered those comments during the preparation of this rule. The 
economic analysis indicates that this rule 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.
    Under the Act, critical habitat may not be destroyed or adversely 
modified by a Federal agency action; the Act does not impose any 
restrictions related to critical habitat on non-Federal persons unless 
they are conducting activities funded or otherwise sponsored or 
permitted by a Federal agency. Because of the potential for impacts on 
other Federal agencies' activities, we reviewed this action for any 
inconsistencies with other Federal agency actions. Based on our 
economic analysis and information related to implementing the listing 
of the species such as conducting section 7 consultations, we believe 
that this designation will not create inconsistencies with other 
agencies' actions or otherwise interfere with an action taken or 
planned by another agency, nor will it materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients.

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 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 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, etc.). We applied 
the ``substantial number'' test

[[Page 31473]]

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.
    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 due to 
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 due to the requirement to reinitiate 
consultation for ongoing Federal activities. However, since Arabis 
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, sewer lines, and gas 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. Therefore, the requirement to reinitiate consultations 
for ongoing projects will not affect a substantial number of small 
entities.
    The economic analysis identified activities that are within, or 
will otherwise be affected by, section 7 of the Act for Arabis 
perstellata. These activities may lead to section 7 consultation with 
us, and in some cases specific projects may be modified in order to 
protect Arabis perstellata and/or its habitat. All of the projects that 
are potentially affected by section 7 implementation for Arabis 
perstellata are expected to involve either no project modifications, or 
minor project modifications or opportunity costs. The greatest share of 
the costs associated with the consultation process typically stems from 
project modifications (as opposed to the consultation itself). Indeed, 
costs associated with the consultation itself are relatively minor, 
with third party costs estimated to range from $1,200 to $4,100 per 
consultation, including the cost of technical assistance. The analysis 
predicted that the following agencies and activities will be the most 
impacted by section 7 consultation:
     Timber stand improvement plans (Natural Resources 
Conservation Service)
     Road construction and maintenance (Federal Highway 
Administration)
     Commercial development (Army Corps of Engineers)
     Utilities construction and maintenance (Tennessee Valley 
Authority)
    After excluding the previous set of action agencies and 
consultations noted above from the total universe of impacts identified 
in the body of the economic analysis, there are no remaining action 
agencies or consultations that may produce significant impacts on small 
entities. Thus, the economic analysis indicated that small businesses 
participating in consultations involving the above-listed activities 
and corresponding action agencies will not be significantly affected as 
a result of section 7 implementation.
    In summary, we have considered whether this 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. Therefore, we are certifying that the designation of 
critical habitat for Arabis perstellata will not have a significant 
economic impact on a substantial number of small entities, and a final 
regulatory flexibility analysis is not required.

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

    Under the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C 801 et seq.), this designation of critical habitat for Arabis 
perstellata is not considered to be a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in our analysis, 
we believe that this rule will not have an effect on the economy of 
$100 million or more, will not cause a major increase in costs or 
prices for consumers, and will not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises, nor will the rule have a significant economic impact on a 
substantial number of small entities. Refer to the final 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 purpose of this 
requirement is to ensure that all Federal agencies ``appropriately 
weigh and consider the effects of the Federal Government's regulations 
on the supply, distribution, and use of energy. The OMB has provided 
guidance for implementing this executive order that outlines nine 
outcomes that may constitute ``a significant adverse effect'' when 
compared without the regulatory action under consideration. One of 
these criteria is relevant to this analysis--increases in the cost of 
energy distribution in excess of one percent. Based on our economic 
analysis of this designation of critical habitat for Arabis 
perstellata, Tennessee Valley Authority (TVA) consultations on 
transmission line construction and maintenance resulting from Arabis 
perstellata being listed and critical habitat being designated are 
expected to have project modification costs of $4,000 to $15,000, and 
administrative costs of $5,000 to $36,000. Thus, the total costs 
incurred by TVA as a result of section 7 implementation range from 
$9,000 to $51,000. Total operation expenses for TVA in 2002 were $5.2 
billion. The total costs incurred as a result of section 7 are less 
than one thousandth of one percent of TVA's operating expenses, so the 
impact to energy distribution is not anticipated to exceed the one 
percent threshold. Therefore, this action is not a significant energy 
action 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),

[[Page 31474]]

the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments. This determination is based on the economic 
analysis conducted for this designation of critical habitat for Arabis 
perstellata. As such, a Small Government Agency Plan is not required.

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 
designating approximately 648 ha (1600 ac) of lands in Franklin, Owen, 
and Henry counties, Kentucky, and Rutherford and Wilson counties, 
Tennessee, as critical habitat for Arabis perstellata in a takings 
implication assessment. The takings implications assessment concludes 
that this final designation of critical habitat for Arabis perstellata 
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, the 
Service requested information from, and coordinated development of this 
critical habitat designation with, appropriate State resource agencies 
in Kentucky and Tennessee, as well as during the listing process. The 
impact of the designation on State and local governments and their 
activities was fully considered in the Economic Analysis. As discussed 
above, the designation of critical habitat in areas currently occupied 
by Arabis perstellata would have little incremental impact on State and 
local governments and their activities. The designations may have some 
benefit to these governments in that the areas essential to the 
conservation of these species are more clearly defined, and the primary 
constituent elements of the habitat necessary to the survival of the 
species are 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 waiting for case-by-case section 7 consultation 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 meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We are designating 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 
designated 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 rule does not contain new or revised information collection 
for which Office of Management and Budget 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 critical habitat for Arabis perstellata does not contain 
any Tribal lands or lands that we have identified as impacting Tribal 
trust resources.

References Cited

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

[[Page 31475]]

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.

Regulation Promulgation

0
For the reasons outlined in the preamble, we amend part 17, subchapter 
B of chapter I, title 50 of the Code of Federal Regulations, as 
follows:

PART 17--[AMENDED]

0
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.


0
2. In section 17.12(h), revise the entry for ``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     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Arabis perstellata...............  Braun's Rock-cress..  U.S.A. (KY, TN)....  Brassicaceae.......  E                       570     17.96(a)           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In 17.96, amend paragraph (a) by adding an entry for Arabis 
perstellata in alphabetical order under Family Brassicaceae 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, Henry, and 
Owen counties, Kentucky, and Rutherford and Wilson counties, Tennessee, 
on the maps below.
    (2) Based on the best available information, primary constituent 
elements essential for the conservation of Arabis perstellata are:
    (i) Relatively undisturbed, closed canopy mesophytic and sub-xeric 
forest with large, mature trees (such as sugar maple (Acer saccharum), 
chinquapin oak (Quercus muhlenbergii), hackberry (Celtus occidentalis), 
or Ohio buckeye (Aesculus glabra)), and
    (ii) Open forest floors with little herbaceous cover and leaf 
litter accumulation with natural disturbance to allow for Arabis 
perstellata germination and seedling germination, and
    (iii) Areas with few introduced weed species such as Alliaria 
petiolata or Lonicera maackii, and
    (iv) Rock outcrops on moderate to steep calcareous slopes defined 
by:
    (A) Ordovician limestone, in particular the Grier, Tanglewood, and 
Macedonia Bed Members of the Lexington Limestone in Kentucky and the 
Lebanon, Carters, Leipers, and Catheys, and Bigby-Cannon Limestones in 
Tennessee; and
    (B) 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 for Kentucky.
    (i) Data layers defining map units were created on a base of USGS 
7.5' quadrangles and 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 map of Critical Habitat for Braun's Rock-cress, 
Kentucky, follows:
BILLING CODE 4310-55-P

[[Page 31476]]

[GRAPHIC] [TIFF OMITTED] TR03JN04.006

    (5) Unit 1: Sky View Drive, 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)

[[Page 31477]]

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: 1450864.02, 256869.46; 1453925.25, 260160.79; 1454705.56, 
258980.31; 1451054.09, 256519.32.
    (7) Unit 3: Red Bridge Road, Franklin County, Kentucky.
    (i) From USGS 1:24,0000 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, follows:

[[Page 31478]]

[GRAPHIC] [TIFF OMITTED] TR03JN04.007


[[Page 31479]]


    (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: 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 1:24,0000 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 1:24,0000 quadrangle Frankfort West, Kentucky; land 
bounded by the following Kentucky State Plane North / NAD83 (Feet) 
coordinates: 1479208.72, 296984.32; 1480548.19, 297074.83; 1480548.19, 
296260.28; 1479407.83, 295690.11; 1479177.04, 295694.63.
    (13) Unit 9: Longs Ravine Site, Franklin County, Kentucky.
    (i) From USGS 1:24,0000 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, follows:

[[Page 31480]]

[GRAPHIC] [TIFF OMITTED] TR03JN04.008


[[Page 31481]]


    (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, 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; land 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, follows:

[[Page 31482]]

[GRAPHIC] [TIFF OMITTED] TR03JN04.009


[[Page 31483]]


    (16) Unit 12: Camp Pleasant Branch Woods, 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, 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, follows:

[[Page 31484]]

[GRAPHIC] [TIFF OMITTED] TR03JN04.010


[[Page 31485]]


    (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, 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, follows:

[[Page 31486]]

[GRAPHIC] [TIFF OMITTED] TR03JN04.011


[[Page 31487]]


    (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: 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, follows:

[[Page 31488]]

[GRAPHIC] [TIFF OMITTED] TR03JN04.012

    (21) Critical Habitat Map Units for Tennessee.
    (i) Data layers defining map unit were created on a base of USGS 
7.5' quadrangles and proposed critical habitat units were then mapped 
in feet

[[Page 31489]]

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

[[Page 31490]]

[GRAPHIC] [TIFF OMITTED] TR03JN04.013

    (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):

[[Page 31491]]

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, follows:

[[Page 31492]]

[GRAPHIC] [TIFF OMITTED] TR03JN04.014

    (25) Unit 21: Grandfather Knob, Wilson County, Tennessee.
    (i) From USGS 1:24,000 quadrangle Lascassas, Tennessee; land 
bounded by the following Tennessee State Plane / NAD83 (Feet) 
coordinates (E,N):

[[Page 31493]]

1888463.64, 602182.29; 1890759.35, 602182.29; 1890842.07, 601189.55; 
1889518.42, 599969.31; 1888877.28, 599638.40; 188670.46, 599638.40; 
1888401.59, 600300.23.
    (ii) Map 10--Unit 21, follows:

[[Page 31494]]

[GRAPHIC] [TIFF OMITTED] TR03JN04.015

    (26) Unit 22: Versailles Knob, Rutherford County, Tennessee.
    (i) From USGS 1:24,000 quadrangle Rover, Tennessee; land bounded by 
the following Tennessee State Plane / NAD83 (Feet) coordinates (E,N):

[[Page 31495]]

1806361.65, 504515.38; 1808616.22, 505711.83; 1809308.27, 504327.51; 
1808517.23, 503872.66; 1807034.03, 503477.14.
    (ii) Map 11--Unit 22, follows:
    [GRAPHIC] [TIFF OMITTED] TR03JN04.016
    


[[Page 31496]]


    Dated: May 26, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-12435 Filed 6-2-04; 8:45 am]
BILLING CODE 4310-55-C