Federal Register, Volume 87 Issue 119 (Wednesday, June 22, 2022)

[Federal Register Volume 87, Number 119 (Wednesday, June 22, 2022)]
[Proposed Rules]
[Pages 37378-37428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12824]

[[Page 37377]]

Vol. 87

Wednesday,

No. 119

June 22, 2022

Part II

Department of the Interior

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Fish and Wildlife Service

50 CFR Part 17

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Endangered and Threatened Wildlife and Plants; Threatened Species
Status With a Section 4(d) Rule for Ocmulgee Skullcap and Designation
of Critical Habitat; Proposed Rule

Federal Register / Vol. 87 , No. 119 / Wednesday, June 22, 2022 /
Proposed Rules

[[Page 37378]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2021-0059; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE01

Endangered and Threatened Wildlife and Plants; Threatened Species
Status With a Section 4(d) Rule for Ocmulgee Skullcap and Designation
of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Ocmulgee skullcap (Scutellaria ocmulgee), a plant species from
Georgia and South Carolina, as a threatened species and designate
critical habitat under the Endangered Species Act of 1973, as amended
(Act). This determination also serves as our 12-month finding on a
petition to list the Ocmulgee skullcap. After a review of the best
available scientific and commercial information, we find that listing
the species is warranted. Accordingly, we propose to list the Ocmulgee
skullcap as a threatened species with a rule issued under section 4(d)
of the Act (``4(d) rule''). If we finalize this rule as proposed, it
will add this species to the List of Endangered and Threatened Plants
and extend the Act's protections to the species. We also propose to
designate critical habitat for the Ocmulgee skullcap under the Act. In
total, approximately 6,577 acres (ac) (2,662 hectares (ha)) in Bibb,
Bleckley, Burke, Columbia, Houston, Monroe, Pulaski, Richmond, Screven,
and Twiggs counties, Georgia, and Aiken and Edgefield counties, South
Carolina, fall within the boundaries of the proposed critical habitat
designation. We also announce the availability of a draft economic
analysis (DEA) of the proposed designation of critical habitat for the
Ocmulgee skullcap.

DATES: We will accept comments received or postmarked on or before
August 22, 2022. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. Eastern Time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by August 8, 2022.

ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter the docket number or RIN
for this rulemaking (presented above in the document headings). For
best results, do not copy and paste either number; instead, type the
docket number or RIN into the Search box using hyphens. Then, click on
the Search button. On the resulting page, in the panel on the left side
of the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2021-0059, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the critical habitat
designation, the coordinates or plot points or both from which the maps
are generated are included in the decision file and are available at
https://www.regulations.gov under Docket No. FWS-R4-ES-2021-0059 and on
the Service's website, at https://www.fws.gov/office/georgia-ecological-services/library. Additional supporting information that we
developed for this critical habitat designation will also be available
on the Service's website, at https://www.regulations.gov, or both.

FOR FURTHER INFORMATION CONTACT: Peter Maholland, Acting Field
Supervisor, U.S. Fish and Wildlife Service, Georgia Ecological Services
Field Office, 355 East Hancock Avenue, Room 320, Athens, Georgia 30601;
telephone 706-613-6059. Individuals in the United States who are deaf,
deafblind, hard of hearing, or have a speech disability may dial 711
(TTY, TDD, or TeleBraille) to access telecommunications relay services.
Individuals outside the United States should use the relay services
offered within their country to make international calls to the point-
of-contact in the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered in the foreseeable
future throughout all or a significant portion of its range). We have
determined that the Ocmulgee skullcap meets the definition of a
threatened species; therefore, we are proposing to list it as such and
proposing a designation of its critical habitat. Both listing a species
as an endangered or threatened species and designating critical habitat
can be completed only by issuing a rule through the Administrative
Procedure Act rulemaking process.
What this document does. We propose to list the Ocmulgee skullcap
as a threatened species, provide measures under section 4(d) of the Act
that are tailored to our current understanding of the conservation
needs of the species, and propose the designation of critical habitat
for the species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that the primary threats to the
Ocmulgee skullcap's current and future condition are habitat loss and
fragmentation due to development and urbanization (Factor A),
competition and encroachment from nonnative invasive species (Factor A
and E), and herbivory from white-tailed deer (Odocoileus virginianus)
(Factor C).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data

[[Page 37379]]

available and after taking into consideration the economic impact, the
impact on national security, and any other relevant impacts of
specifying any particular area as critical habitat.

Information Requested

We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned governmental agencies,
Native American Tribes, the scientific community, industry, or any
other interested parties concerning this proposed rule.
We particularly seek comments concerning:
(1) Ocmulgee skullcap's biology, range, and population trends,
including:
(a) Biological or ecological requirements of the species, including
habitat requirements for growing and reproducing;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Factors that may affect the continued existence of the species,
which may include habitat modification or destruction, overutilization,
disease, predation, the inadequacy of existing regulatory mechanisms,
or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of this species,
including the locations of any additional populations of this species.
(5) Information on regulations that are necessary and advisable to
provide for the conservation of the Ocmulgee skullcap and that we can
consider in developing a 4(d) rule for the species. In particular,
information concerning the extent to which we should include any of the
section 9 prohibitions in the 4(d) rule or whether we should consider
any additional exceptions from the prohibitions in the 4(d) rule.
(6) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors that the
regulations identify as reasons why designation of critical habitat may
be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(7) Specific information on:
(a) The amount and distribution of Ocmulgee skullcap habitat;
(b) What areas, that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of the species, should be included in the designation and
why;
(c) Any additional areas occurring within the range of the species,
(i.e., Georgia and South Carolina), that should be included in the
designation because they (1) are occupied at the time of listing and
contain the physical or biological features that are essential to the
conservation of the species and that may require special management
considerations, or (2) are unoccupied at the time of listing and are
essential for the conservation of the species;
(d) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(e) What areas not occupied at the time of listing are essential
for the conservation of the species. We particularly seek comments:
(i) Regarding whether occupied areas are adequate for the
conservation of the species; and
(ii) Providing specific information regarding whether or not
unoccupied areas would, with reasonable certainty, contribute to the
conservation of the species and contain at least one physical or
biological feature essential to the conservation of the species,
particularly areas in the Savannah River watershed (Unit 1); and
(iii) Explaining whether or not unoccupied areas fall within the
definition of ``habitat'' at 50 CFR 424.02 and why.
(8) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(9) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(10) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts.
(11) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide credible information regarding the
existence of a meaningful economic or other relevant impact supporting
a benefit of exclusion.
(12) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or a
threatened species must be made ``solely on the basis of the best
scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document

[[Page 37380]]

that we withhold this information from public review. However, we
cannot guarantee that we will be able to do so. We will post all
hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the species is
endangered instead of threatened, or we may conclude that the species
does not warrant listing as either an endangered species or a
threatened species. For critical habitat, our final designation may not
include all areas proposed, may include some additional areas that meet
the definition of critical habitat, and may exclude some areas if we
find the benefits of exclusion outweigh the benefits of inclusion. In
addition, we may change the parameters of the prohibitions or the
exceptions to those prohibitions in the 4(d) rule if we conclude it is
appropriate in light of comments and new information received. For
example, we may expand the prohibitions to include prohibiting
additional activities if we conclude that those additional activities
are not compatible with conservation of the species. Conversely, we may
establish additional exceptions to the prohibitions in the final rule
if we conclude that the activities would facilitate or are compatible
with the conservation and recovery of the species.

Public Hearing

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

Previous Federal Actions

On April 20, 2010, we were petitioned by the Center for Biological
Diversity and others to list 404 riparian and wetland species in the
southeastern United States, including Ocmulgee skullcap, under the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1543; Act)
and designate critical habitat (CBD 2010, entire). In response to the
petition, we completed a partial 90-day finding on September 27, 2011,
in which we announced our finding that the petition contained
substantial information indicating the Ocmulgee skullcap may warrant
listing (76 FR 59836).

Supporting Documents

A species status assessment (SSA) team prepared an SSA report for
the Ocmulgee skullcap. The SSA team was composed of Service biologists,
in consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species. In accordance with our joint policy on peer review
published in the Federal Register on July 1, 1994 (59 FR 34270), and
our August 22, 2016, memorandum updating and clarifying the role of
peer review of listing actions under the Act, we sought the expert
opinions of 3 appropriate specialists regarding the SSA. We received 1
response. We also sent the SSA report to 2 partners, including
scientists with expertise in biology, habitat, and threats to the
species, for review. We received review from 2 partners (State
agencies). The SSA report and other materials relating to this proposal
can be found at https://www.regulations.gov under Docket No. FWS-R4-ES-
2021-0059.

I. Proposed Listing Determination

Background

A thorough review of the taxonomy, life history, and ecology of the
Ocmulgee skullcap (Scutellaria ocmulgee) is presented in the SSA report
(version 1.2; Service 2020, pp. 4-11). Ocmulgee skullcap is a perennial
herb in the Lamiaceae (mint) family with 4-sided stems that grows up to
16 to 32 inches (in) (40 to 80 centimeters (cm)) tall. It bears blue-
violet colored and faintly fragrant flowers in July. Although taxonomy
for Ocmulgee skullcap has been consistent through time, identification
of the species is difficult; as a result, some occurrences of the
congeneric S. mellichampii were misidentified as Ocmulgee skullcap
prior to 2018.
Ocmulgee skullcap is restricted to the moist, calcareous (calcium
rich) north-facing slopes along the Ocmulgee and Savannah River
watersheds in Georgia and South Carolina. In these isolated bluff and
slope areas, the forest structure is composed of a mixed-hardwood
species of trees with a partially open canopy to allow the plants to
reach maturity and produce viable seed. The mature, mixed-level canopy
provides the mottled shade required by Ocmulgee skullcap. The river
bluffs and steep slopes experience localized disturbances including
water runoff that limit the accumulation of leaf litter and limit
competition from other plants in the shaded, steep forest environment.
The lifespan of Ocmulgee skullcap is estimated to be 5-8 years with
3-6 years of potential viable seed production. The species matures to
produce seed in either the first or second year following spring
germination. Ocmulgee skullcap reproduces sexually and is pollinated by
over 35 different pollinator species including bees, moths,
butterflies, and sometimes flies and wasps (Adams et al. 2010, p. 53,
Cruzan 2001, pp. 1577-1578).
Ocmulgee skullcap seeds release from the plant in response to
disturbance of the stem by wind, rain, animal activity, or other means.
The seeds require this dislodging and bare soil rich in calcium under
partial shade in order to germinate. Juvenile Ocmulgee skullcap
individuals require sufficient amounts of sunlight, moisture, and
calcium, presence of pollinators and stable soil conditions to reach
maturity and produce seed. In addition, juvenile plants are sensitive
to competition for needed resources. Mature Ocmulgee skullcap plants
require the same resources as juvenile plants including sufficient time
without herbivory or other removal of the seed calyx in order disperse
seed.

Regulatory and Analytical Framework

Regulatory Framework

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species is an endangered species or a threatened species. The
Act defines an ``endangered species'' as a species that is in danger of
extinction throughout all or a significant portion of its range, and a
``threatened species'' as a species that is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of

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its range. The Act requires that we determine whether any species is an
endangered species or a threatened species because of any of the
following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
and the effects of the threats--in light of those actions and
conditions that will ameliorate the threats--on an individual,
population, and species level. We evaluate each threat and its expected
effects on the species, then analyze the cumulative effect of all the
threats on the species as a whole. We also consider the cumulative
effect of the threats in light of those actions and conditions that
will have positive effects on the species, such as any existing
regulatory mechanisms or conservation efforts. The Secretary determines
whether the species meets the definition of an ``endangered species''
or a ``threatened species'' only after conducting this cumulative
analysis and describing the expected effect on the species now and in
the foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as the
Service can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define foreseeable future
as a particular number of years. Analysis of the foreseeable future
uses the best scientific and commercial data available and should
consider the timeframes applicable to the relevant threats and to the
species' likely responses to those threats in view of its life-history
characteristics. Data that are typically relevant to assessing the
species' biological response include species-specific factors such as
lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.

Analytical Framework

The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent a decision by
the Service on whether the species should be proposed for listing as an
endangered or threatened species under the Act. However, it does
provide the scientific basis that informs our regulatory decisions,
which involve the further application of standards within the Act and
its implementing regulations and policies. The following is a summary
of the key results and conclusions from the SSA report; the full SSA
report can be found at Docket No. FWS-R4-ES-2021-0059 on https://www.regulations.gov.
To assess Ocmulgee skullcap viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency supports the ability of the species to withstand
environmental and demographic stochasticity (for example, wet or dry,
warm or cold years), redundancy supports the ability of the species to
withstand catastrophic events (for example, droughts, large pollution
events), and representation supports the ability of the species to
adapt over time to long-term changes in the environment (for example,
climate changes). In general, the more resilient and redundant a
species is and the more representation it has, the more likely it is to
sustain populations over time, even under changing environmental
conditions. Using these principles, we identified the species'
ecological requirements for survival and reproduction at the
individual, population, and species levels, and described the
beneficial and risk factors influencing the species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.

Summary of Biological Status and Threats

In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability. For Ocmulgee skullcap
populations to be sufficiently resilient, the needs of individuals
(calcium-rich soil, shade or partial shade from canopy cover, adequate
precipitation, reduced competition, pollinators) must be met at a large
scale. Areas of suitable habitat must be large enough to support
pollinators needed for Ocmulgee skullcap reproduction and must include
a spatial buffer that acts to prevent or delay encroachment by
nonnative invasive species. At the species level, the Ocmulgee skullcap
needs a sufficient number and distribution of healthy populations to
withstand environmental stochasticity (resiliency) and catastrophes
(redundancy) and to adapt to biological and physical changes in its
environment (representation).

[[Page 37382]]

Influences on Ocmulgee Skullcap Viability

In the SSA analysis, we reviewed and summarized the factors that
may influence the viability of Ocmulgee skullcap. Potential threats to
Ocmulgee skullcap's viability include the following factors: (1)
habitat destruction and modification; (2) competition from other
species (e.g., Chinese privet, autumn and thorny olive, Japanese
honeysuckle, kudzu, etc.); (3) collection and harvest; (4) herbivory;
(5) climate change, and (6) pollinator visitation and reproduction
(Service 2020, pp. 12-17). We found the primary factors driving the
species' current and future conditions are habitat loss and
fragmentation due to development and urbanization (Factor A),
competition and encroachment from nonnative invasive species (Factors A
and E), and herbivory from white-tailed deer (Factor C). Although
medicinal properties of other Scutellaria species have been
investigated (Service 2020, p. 13), there is no evidence that
overutilization (Factor B) has impacted Ocmulgee skullcap. In addition,
conditions across the species' range are likely to be hotter and
subject to variable precipitation including extreme weather events.
Although we do not have specific information regarding the species
likely response to these effects of climate change, we expect that the
effects of climate change will negatively affect Ocmulgee skullcap by
reducing available resources such as water and limited competition. We
do not consider climate change (Factor E) to be a primary risk factor
for the species at this time; however, the effects of climate change,
including drought and changes in rainfall patterns may affect the
species in the future as changes become more extreme. We also reviewed
the conservation efforts being undertaken for the habitat where
Ocmulgee skullcap occurs. A brief summary of relevant stressors is
presented below; for a more detailed discussion of our evaluation of
the biological status of Ocmulgee skullcap and the influences that may
affect its continued existence, refer to chapter 3 of the SSA report
(Service 2020, pp. 12-20).

Urbanization and Land Conversion

Population growth and associated urbanization and development has
increased in the Southeast at a rate 40% greater than the rest of the
United States over the last 60 years. Much of this growth is in
sprawling low-density, suburban areas encompassing large areas of
single-family housing and infrastructure (Terando et al. 2014, p.
e102261). Land conversion for residential and commercial development,
infrastructure, and pine plantation is associated with an increase in
population. Two Ocmulgee skullcap populations occur near the city of
Macon, Georgia and another population occurs near the city of Augusta,
Georgia. Urbanization and land conversion can directly and indirectly
impact Ocmulgee skullcap (Morris et al. 2000, pp. 31-32). Urbanization
can result in the direct loss of individuals or a population. For
example, one occurrence in the Savannah River watershed has been
extirpated due to land conversion to pine plantation (Bradley 2019, p.
30), resulting in the loss of the species and its habitat from this
location. In addition, urbanization of surrounding or adjacent areas
can indirectly impact Ocmulgee skullcap, and two other known
occurrences have experienced altered conditions, such as parking lot
expansion and erosion on the bluff due to nearby residential
development, due to surrounding areas being developed (i.e.,
urbanization) (Bradley 2019, pp. 27-29).
Further, land use patterns and urbanization near Ocmulgee skullcap
occurrences can impact population resiliency. Urbanization modifies
surrounding and nearby habitat conditions required by Ocmulgee skullcap
by fostering the introduction of nonnative invasive species and
increasing the amount and velocity of water runoff during precipitation
events due to an increase of impervious surfaces. As further discussed
below, nonnative invasive species compete with Ocmulgee skullcap for
required resources. Increased runoff reduces the availability of
nutrients and soil conditions required for successful reproduction,
affecting Ocmulgee skullcap recruitment and resiliency. Because
Ocmulgee skullcap grows along steep slopes, when the tops of bluffs are
logged or cleared for other land uses, runoff and erosion are
increased. Increased water flows containing sediments or other
pollutants wash downslope and negatively affect the species' habitat by
depositing sediments or pollutants in low gradient areas. In addition,
erosion caused by logging and timber harvest activities as well as
clearing of forested areas for development increases water runoff along
the steep slopes where the species occurs and may remove or damage
Ocmulgee skullcap plants (Morris 1999, p. 3). Historical and recent
(since 1999) logging on bluffs and resulting erosion occur near five
Ocmulgee skullcap occurrences (Morris 1999, entire; Bradley 2019, p. 1-
40, 73-78).

Herbivory

Over the last century, white-tailed deer abundance has increased
substantially (Horsely et al. 2003, p. 1). White-tailed deer result in
herbivory (including preferential browsing of native plants) and
trampling, resulting in impacts to plant development and species
density, diversity, and composition (Miller et al. 1992, entire;
Horsely et al. 2003, p. 113; Averill et al. 2017, p. 2). For many
Scutellaria species, including Ocmulgee skullcap, immature stems are
often browsed by deer; this herbivory can prevent reproduction of that
stem for the year if the plant does not flower (Bradley 2019, p. 77).
In addition, individual plants may be pulled from the ground during
browsing. In contrast, deer herbivory was found to have a potential
positive influence on the Scutellaria montana (large-flowered
skullcap), where deer browsed on all vegetation and large-flowered
skullcap individuals benefited from the reduction in competing
vegetation (Benson and Boyd 2014, p. 89). However, in 2018, deer
herbivory was observed in every Ocmulgee skullcap population surveyed,
with severe impacts on reproduction documented at some sites (Bradley
2019, entire). In previous surveys for the species, deer herbivory was
documented (Morris 1999, p. 3; Snow 1999, p. 8); therefore, we conclude
that deer herbivory continues to be an ongoing threat to Ocmulgee
skullcap.
The direct impacts from white-tailed deer are widely noted across
the range of the Ocmulgee skullcap with herbivory documented at various
levels at numerous sites (Bradley 2019, entire). Survey reports note
the presence of herbivory in over 75 percent of occurrences and point
to herbivory by deer as a limiting factor for Ocmulgee skullcap
populations (Cammack and Genachte 1999, entire; Morris 1999, entire;
Snow 1999, entire; Morris et al. 2000; Snow 2001, entire; Bradley 2019,
entire). When immature stems of Ocmulgee skullcap are browsed by deer,
the plant cannot flower and set seed, thus preventing reproduction of
that stem for the year (Bradley 2019, p. 77).
In addition to direct impacts, deer browse affects the vegetative
community through facilitation of browse-resilient species and
potential increases in species that compete with Ocmulgee skullcap for
resources (Horsely et al. 2003, p. 114-115). Encroaching development
has decreased the amount and quality of forage and habitat for white-
tailed deer, which can increase

[[Page 37383]]

the probability of herbivory within Ocmulgee skullcap suitable habitat.
Further, as development increases, restrictions on deer harvest in
proximity to residential areas may lead to an increase in deer
populations and associated herbivory of Ocmulgee skullcap.
Extirpation of the Ocmulgee skullcap occurrence at the Savannah
River Bluffs Heritage Preserve in Aiken County, South Carolina, is
attributed to severe herbivory by deer (Bradley 2019, p. 24). The
preserve is the site of intense public recreation; therefore, deer
harvest is not permitted within the preserve for public safety reasons.
In addition, residents in housing developments adjacent to the preserve
feed the deer and may maintain large piles of ``deer corn'' (Bradley
2019, p. 24). This abundance of food and lack of hunting pressure has
resulted in an unnaturally dense deer population surrounding this
occurrence. The habitat at this site is now a depauperate, almost
barren herbaceous layer.

Nonnative Invasive Species

Invasive plant species limit the available resources (nutrients,
space, sunlight, pollinators) necessary for Ocmulgee skullcap
germination, growth, and reproduction. The introduction and spread of
nonnative invasive species often occur with development (McKinney 2002,
p. 888). However, nonnative invasive species can also be introduced
from other types of adjacent land uses, such as agriculture and
silviculture. This introduction occurs through the creation of areas of
transition between natural and anthropogenic affected habitat types and
associated edge effects (Brown and Boutin 2009, p. 1654; Honu et al.
2009, p. 182). Nonnative invasive plant species have been documented at
8 of the 32 current Ocmulgee skullcap occurrences (Bradley 2019,
entire; Morris 1999, entire).
Nonnative invasive species known to affect multiple Ocmulgee
skullcap populations include: Elaeagnus pungens (thorny olive), E.
umbellate (autumn olive), Ligustrum sinense (Chinese privet), Lonicera
japonica (Japanese honeysuckle), and Microstegium vimineum (Japanese
stiltgrass) (Morris et al. 2000, p. 31, Bradley 2019, p.77). On some
sites, other nonnative invasive species, including Pueraria montana
var. lobate (kudzu), Vinca minor (periwinkle), Citrus trifoliata (hardy
orange), and Pyrus communis (common pear) pose localized threats to
occurrences and/or populations (Bradley 2019, p. 77). These nonnative
invasive species, when present, compete with Ocmulgee skullcap plants
for required resources including sunlight, water, and space.
Intact forested habitat with a mature canopy and discrete
disturbances provides an important buffer of suitable habitat for
Ocmulgee skullcap populations to decrease encroachment of competing
nonnative invasive plants. Competition with other native species and
nonnative invasive species can restrict seedlings, vegetative plants,
and flowering plants from obtaining the three key resources (water,
sunlight, and soil) needed to grow and reproduce; therefore, healthy
Ocmulgee skullcap individuals and populations need reduced competition.

Climate Change

In the southeast United States, several climate change models have
projected more frequent drought, more extreme air temperatures,
increased heavy precipitation events (e.g., flooding), and more intense
storms (e.g., frequency of major hurricanes increases) (Burkett and
Kusler 2000, p. 314; Klos et al. 2009, p. 699; IPCC 2013, pp. 3-29).
When taking into account future climate projections for temperature and
precipitation where Ocmulgee skullcap occurs, warming is expected to be
greatest in the summer, which is predicted to increase drought
frequency. Additionally, annual mean precipitation is expected to
increase, but only slightly, and thus, leading to a slight increase in
flooding events (Alder and Hostetler 2013, unpaginated; IPCC 2013,
entire; USGS 2020, unpaginated).
To understand how climate change is projected to change where
Ocmulgee skullcap occurs, we used the National Climate Change Viewer
(NCCV), a climate-visualization tool developed by the U.S. Geological
Survey (USGS), to generate future climate projections across the range
of the species. The NCCV is a web-based tool for visualizing projected
changes in climate and water balance at watershed, state, and county
scales (USGS 2020, unpaginated). To evaluate the effects of climate
change in the future, we used projections from Representative
Concentration Pathway (RCP) 4.5 and RCP8.5 to characterize projected
future changes in climate and water resources, averaged for the State
of Georgia encompassing the majority of the range of the Ocmulgee
skullcap. The projections estimate change in mean annual values for
maximum air temperature, minimum air temperature, monthly
precipitation, and monthly runoff, among other factors, from historical
(1950-2005) to future (2040-2060) time series.
Within the range of the Ocmulgee skullcap, the NCCV projects that
under the RCP4.5 scenario, maximum air temperature will increase by 3.4
[deg]F ([deg]F) (1.9 [deg]Celsius ([deg]C), minimum air temperature
will increase by 3.2 [deg]F (1.8 [deg]C), precipitation will increase
by 0.2 in (5.36 millimeters (mm)) per month, and runoff will remain the
same in the 2040-2060 time period (USGS 2020, unpaginated). Under the
more extreme RCP8.5 emissions scenario, the NCCV projects that maximum
air temperature will increase by 5.0 [deg]F (2.8 [deg]C), minimum air
temperature will increase by 4.9 [deg]F (2.7 [deg]C), precipitation
will increase by 0.2 in (5.36 mm) per month, and runoff will remain the
same (USGS 2020, unpaginated). These estimates indicate that, despite
projected minimal increases in annual precipitation, anticipated
increases in maximum and minimum air temperatures will likely offset
those gains. Based on these projections, Ocmulgee skullcap will, on
average, be exposed to increased air temperatures across its range,
despite limited increases in precipitation in scenarios based on RCP4.5
and 8.5. The increase of maximum and minimum temperatures and
variability in precipitation is expected to result in an increased
probability of longer and more severe droughts in the future.
Within mixed hardwood forests where Ocmulgee skullcap occurs,
drought conditions due to higher temperatures and variable
precipitation could reduce the available resources required for plant
survival including water and reduced competition. Extreme rainfall
events may increase negative effects from flooding (pollutants) and
erosion on the steep slopes where the species occurs. Increased
competition from other species more tolerant of drought and extreme
rainfall events will also limit the ability of Ocmulgee skullcap to
produce viable seed and sustain populations in the wild over time. The
species occupies hardwood forests with mature overstory and midstory
canopy cover, and these more mesic, shaded habitats may provide a
buffer to changes induced by climate change (increased temperature). If
precipitation increases slightly, as predicted in some models, and
extreme rainfall events are infrequent, the effects to Ocmulgee
skullcap could even be beneficial, although this scenario is quite
uncertain and climate change is not expected to benefit the species
(Alder and Hostetler 2013, unpaginated).
The potential risks associated with long-term climate change as
described above will affect ecosystem processes in Ocmulgee skullcap
habitat, but there is

[[Page 37384]]

uncertainty in how the ecosystems and species will respond. Overall, we
do not expect the effects of climate change to be beneficial to the
species, but the extent of the negative effects cannot be estimated
with the available information on the species' responses to increased
temperature and variability in precipitation. Likewise, the threshold
or level at which changes in temperature (prolonged hot weather) and
rainfall (drought or extreme rainfall events) are expected to affect
Ocmulgee skullcap is not available for the species or its congeners. We
do not consider climate change to be a primary risk factor for the
species at this time; however, the effects of climate change, including
drought and changes in rainfall patterns may affect the species in the
future as changes become more extreme.

Small Population Size

Some plant species, such as Ocmulgee skullcap, are naturally
distributed as small and disjunct populations in heterogeneous
landscapes because of their requirements for specific habitat
conditions. The specific habitat requirement of Ocmulgee skullcap
(i.e., calcium rich soil on forested bluffs) are disjunct and therefore
populations are generally very small with 15 of 19 population
occurrences having 50 or fewer individuals and 9 populations having 10
or fewer. Only three populations have more than 100 individuals
(Service 2020, Appendix A). It is unknown whether Ocmulgee skullcap was
historically more abundant but given the magnitude and scope of past
habitat loss and modification, it is likely the species' numbers are
lower than in the past. In addition, small and isolated populations
offer limited nectar and pollen resources available to pollinators,
making visitation to these sites more energetically expensive. Small,
isolated populations of rare plant species often receive less
pollinator visitation in comparison with larger or more widespread
plant species (Ellstrand and Elam 1993, p. 227).
Small populations are vulnerable to habitat impacts and face a
higher risk of extinction (Matthies et al. 2004, p. 481). Small
population size may increase the extinction risk of individual
populations due to stochasticity of demographic (fluctuations in
population size) and genetic (fluctuations in gene expression)
characteristics, environmental stochasticity (spatiotemporal
fluctuations in environmental conditions), or impacts from catastrophic
events (e.g., hurricanes) (Lande 1993, entire). Within each population,
genetic, phenotypic, and demographic structure must have adequate
representation for populations to respond to environmental change over
time.
Genetic stochasticity due to small population size can contribute
to population extirpation, especially when population fragmentation
disrupts gene flow. Two genetic consequences of small population size
are increased genetic drift and inbreeding. Genetic drift is the random
change in allele frequency that occurs because gametes transmitted from
one generation to the next carry only a sample of the alleles present
in the parental generation. In large populations, changes due to chance
in allele frequency from drift are generally small. In contrast, in
small populations (e.g., fewer than 100 individuals), allele
frequencies may undergo large and unpredictable fluctuations due to
drift that can erode genetic variation (diversity) over time and may
decrease the potential for a species to persist in the face of
environmental change (Ellstrand and Elam 1993, pp. 219, 224).
Inbreeding, which can be caused by genetic drift, is the mating of
related individuals. Inbreeding can lead to increased homozygosity in a
population above levels expected under random mating (Barrett and Kohn
1991, p. 19). Small population size alone may not necessarily threaten
the long-term viability of a given population, as small populations of
some isolated endemic plant species are known to maintain stable
populations for at least 40 years (Abeli 2010, p. 6). However, the
synergistic effect of habitat fragmentation, reduced population size,
and inbreeding may lead to inbreeding depression and reduced fitness.

Conservation Efforts

Ocmulgee skullcap is listed as threatened in Georgia (Patrick et
al. 1995, pp. 173-174) and is not listed or otherwise protected in
South Carolina. In Georgia, the Georgia Wildflower Preservation Act of
1973 protects Ocmulgee skullcap growing on State lands from cutting,
digging, pulling, or removing unless the Georgia Department of Natural
Resources has authorized such acts (Georgia Code 2015). The six
populations occurring on State owned or managed Wildlife Management
Areas receive the benefits of this Wildflower Preservation Act
protection.
Throughout the range of the species, portions of populations occur
on lands owned and managed by State and Federal entities that
prioritize conservation as a management objective. The Robins Air Force
Base Integrated Natural Resource Management Plan specifically considers
and manages for two Ocmulgee skullcap occurrences in hardwood bluff
areas on the installation and a third occurrence also on the base (see
Exemptions, below). The State conservation lands owned or leased and
managed by Georgia Department of Natural Resources where Ocmulgee
skullcap occurs include Yuchi Creek Wildlife Management Area (WMA),
Echeconnee Natural Area, Ocmulgee WMA, and the Oaky Woods WMA. It is
expected that the six Ocmulgee skullcap populations are positively
affected by protection from development on these State-owned and
managed lands and may also benefit when species-appropriate habitat
management occurs on Federal lands.

Synergistic and Cumulative Effects

We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the factors that may be
influencing the species, including threats and conservation efforts.
Because the SSA framework considers not just the presence of the
factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
In addition to factors impacting Ocmulgee skullcap individually, it
is likely that several of the above summarized threats are acting
synergistically or cumulatively on the species. The combined impacts of
multiple threats are likely more harmful than a single threat acting
alone. Development and urbanization may remove or degrade habitat where
Ocmulgee skullcap occurs and also bring an increase in encroaching
nonnative invasive species and white-tailed deer due to hunting
restrictions near inhabited areas. In addition, herbivory by white-
tailed deer may change the community structure to favor plants more
resistant to deer browse. The impacts of herbivory by white-tailed deer
and competition from nonnative invasive species were

[[Page 37385]]

recently noted in several populations (Bradley 2019, entire).

Methods To Assess Current Condition

To evaluate the biological status of Ocmulgee skullcap both
currently and into the future, we assessed a range of conditions to
consider the species' resiliency, redundancy, and representation. For
the purposes of our analysis, representative units (RUs) were
delineated to describe the breadth of known genetic, phenotypic, and
ecological diversity within the species. We divided the current
Ocmulgee skullcap range into two noncontiguous RUs, the Ocmulgee and
Savannah River watersheds. We used NatureServe's Habitat-based Plant
Element Occurrence Delineation Guidance (NatureServe 2020, entire) 2-km
separation distance rule to delineate populations. We delineated
populations of the Ocmulgee skullcap using occurrence data obtained
from peer-reviewed articles, unpublished survey reports, and survey
records (1961 to present) contained in agency and partner databases
(i.e., Georgia and South Carolina Natural Heritage databases).
Occurrences are defined as an individual or group of individuals in
close proximity in an area not widely separated from other individuals.
Rangewide, each of the 26 occurrences was buffered by a 2 kilometer
(km) (1.24 mile (mi)) radius circle and occurrences with overlapping
buffers were considered within the same population, resulting in 19
current Ocmulgee skullcap populations (13 in the Ocmulgee RU and 6 in
Savannah RU) (Table 1). Historical occurrence data are limited, but we
assumed that the current distribution of Ocmulgee skullcap populations
represents at least most of the historical range of the species within
the Ocmulgee and Savannah watersheds in Georgia and South Carolina.

Table 1--Populations Used To Assess Viability of the Ocmulgee Skullcap
in the Ocmulgee and Savannah Representative Units
------------------------------------------------------------------------
Savannah representative unit
Ocmulgee representative unit populations populations
------------------------------------------------------------------------
James Dykes Memorial...................... Burke South.
Robins Air Force Base..................... Burke North.
Savage Branch............................. Columbia Richmond.
Bolingbroke Rest Area..................... Barney Bluff.
Crooked Creek............................. Horse Creek.
Jordan Creek.............................. Prescott Lakes.
Shellstone Creek..........................
Dry Creek.................................
Oaky Woods Wildlife Management Area North.
Oaky Woods Wildlife Management Area South.
River North Bluff.........................
South Shellstone Creek....................
Tributary to Richland Creek...............
------------------------------------------------------------------------

The Ocmulgee skullcap needs multiple, sufficiently resilient
populations distributed across its range to maintain viability. A
sufficiently resilient population exhibits high or moderate resiliency
and is characterized by 60 or more individuals in stable or increasing
numbers of widespread occurrences with no or few invasive species and
no or minor change in habitat condition. A number of factors influence
whether Ocmulgee skullcap populations exhibit resiliency to stochastic
events. These factors include: (1) Number of individuals in all
occurrences within a population, (2) number of flowering individuals
(reproductive adults) within a population, (3) number of occurrences
(groups of individuals) within a population, (4) change in number of
occurrences within a population over time, and (5) condition of
habitat, which is directly related to growth, survival, and
reproductive success (Service 2020, p. 23). To capture important
aspects of the habitat condition, we used two factors, both of which
characterize the quality and quantity of native herbaceous ground
cover: (1) Presence of nonnative invasive plant species (competition)
and (2) presence of deer herbivory (browsing) (Service 2020, p. 23).
We assessed representation for the Ocmulgee skullcap based on the
potential adaptive capacity of the species as expressed in the number
of current populations across the historical range of the species and
within representative units. Finally, we assessed Ocmulgee skullcap
redundancy (the ability of a species to withstand catastrophic events)
by evaluating the number and distribution of sufficiently resilient
populations throughout the species' range.

Current Conditions of Ocmulgee Skullcap

As described above, we delineated the range of Ocmulgee skullcap
into two representative units and 19 populations for our analyses.
Having a greater number of self-sustaining populations distributed
across the known range of the species is associated with an overall
higher viability of the species into the future. We determined four
condition classes for Ocmulgee skullcap resiliency: very low, low,
moderate, and high. A population exhibiting high resiliency is
characterized by 100 or more individuals, with multiple, widespread
clusters of individuals, an increasing trend in the number of
occurrences, few or no nonnative invasive plant species, no evident
deer browse impacts, and no substantial change in habitat condition.
Moderate resiliency populations are characterized by 60-100
individuals, with a few, somewhat widespread clusters of individuals,
stable number of occurrences, few or no nonnative invasive plant
species, evident deer browse impacts, and only minor changes in habitat
condition. A population in low resiliency is characterized by 40-59
individuals, with two clusters of individuals, a decreasing trend in
the number of occurrences, presence of nonnative invasive plant species
and deer browse impacts, and moderate change in habitat condition. A
very low resiliency population is characterized by <40 individuals in a
single, isolated site with evidence of nonnative invasive plant species
and deer browse, and substantial change in habitat condition.
Resiliency categories are further described in the SSA report (Service
2020, p. 24. Table 4-1).
Currently, 16 of 19 populations within the species' range exhibit
low or very low resiliency (see Table 2, below). One population within
the Ocmulgee RU exhibits moderate resiliency, and two populations
within the Savannah RU exhibit moderate or high resiliency (Table 2).
The majority of Ocmulgee skullcap populations of the Ocmulgee skullcap
have generally low resilience to stochastic events. Two occurrences
within extant populations in the Savannah RU have been extirpated
because of deer browsing and land conversion to pine plantation;
currently, there are no known extirpated populations.
The Ocmulgee skullcap is found in two non-contiguous RUs
(watersheds); and currently occupies the known historical range of the
species. Only two occurrences within two populations have been
extirpated, but those populations are still extant. Thus,
representation may be slightly reduced from the species' historical
condition. Based on available information, we determined the Ocmulgee
skullcap has adaptive capacity or ability to adapt to changing
environmental conditions, given that 19 populations occur in two

[[Page 37386]]

watersheds in two states and no populations have been lost from the
known historical range. Sixteen of 19 known populations currently
exhibit low to very low resiliency across the range, but these
populations are distributed across two watersheds in two states across
the historical range. Overall, the Ocmulgee skullcap current condition
is characterized by low or reduced resiliency, moderate representation
and multiple redundant populations.

Table 2--Current Resiliency Category of Each Ocmulgee Skullcap
Population
[Service 2020]
------------------------------------------------------------------------
Number of Overall resiliency
Population name individuals category *
------------------------------------------------------------------------
Ocmulgee Representative Unit (Ocmulgee River watershed)
------------------------------------------------------------------------
James Dykes Memorial........... 54 Moderate.
Robins Air Force Base.......... 3 Low.
Savage Branch.................. 50 Low.
Bolingbroke Rest Area.......... 8 Low.
Crooked Creek.................. 31 Low.
Jordan Creek................... 50 Low.
Shellstone Creek............... 46 Low.
Dry Creek...................... 10 Very low.
Oaky Woods WMA North........... 1 Very low.
Oaky Woods WMA South........... 1 Very low
River North Bluff.............. 1 Very low.
South Shellstone Creek......... 15 Very low.
Tributary to Richland Creek.... 6 Very low.
------------------------------------------------------------------------
Savannah Representative Unit (Savannah River watershed)
------------------------------------------------------------------------
Burke South.................... 319 High.
Burke North.................... 112 Moderate.
Columbia Richmond.............. 450 Low.
Barney Bluff................... 50 Low.
Horse Creek.................... 1 Very low.
Prescott Lakes................. 0 Very low.
------------------------------------------------------------------------
* Overall resiliency category includes the demographic metrics of the
number of individuals, number of occurrences, and change in number of
occurrences, and the habitat metric assessment of native herbaceous
groundcover/habitat condition.

Future Scenarios

Given the current conditions of Ocmulgee skullcap and the expected
influences on viability, we projected the resiliency, redundancy, and
representation of Ocmulgee skullcap under three plausible future
scenarios. Our projections incorporate the effects of development
(urbanization) and habitat management actions that reduce nonnative
invasive species and herbivory from white-tailed deer. We developed
three plausible scenarios to assess the future viability of Ocmulgee
skullcap populations and predicted how those scenarios affect to future
populations' resiliency, representation, and redundancy. Future
fluctuations in precipitation and increased annual average temperatures
as a result from climate change may also impact the species, but these
were not included in our future predictions due to uncertainty
surrounding the effects to the species (Service 2020, pp. 15-17).
We evaluated each of the scenarios in terms of how it would be
expected to affect Ocmulgee skullcap resiliency, redundancy, and
representation of the species in 2040 and 2060. We chose a predictive
time horizon of 2040 and 2060 based on the average lifespan of the
species (5-8 years), confidence in projections and models of factors
influencing the species' viability, and certainty in predictions of the
species' response to those factors. We assessed the projected
urbanization under two development scenarios using the SLEUTH model--a
low development projection that includes areas with a greater than 90
percent probability of being urbanized and a high development
projection that includes areas with a greater than 10 percent
probability of being urbanized. We then categorized the predicted loss
of suitable habitat within the population area extent due to
urbanization as high (67-100%), medium (34-67%), or low (0-33%). The
habitat loss projections fell into one of two result patterns; one
pattern represents the low development projection in 2040, the second
represents the low development projection in 2060, the high development
projection in 2040, and the high development projection in 2060. Thus,
the low development projection results encompass both the upper and
lower plausible bounds for the urbanization and development scenarios.
To avoid redundancy in our analysis, we used the low development
projection in all three future condition scenarios and note that the
low development scenario projections for 2060 also represent the high
urbanization probability for 2040 and 2060. All three scenarios
incorporate the risk level of urbanization and development predicted by
the low development probability model in both timesteps, but differ in
the level of habitat management (nonnative invasive species control and
white-tailed deer harvest) implemented. The scenarios we evaluated for
Ocmulgee skullcap are as follows (scenarios are discussed in greater
detail in the SSA report (Service 2020, p. 36-42)):
Scenario 1 (Decreased Management and Conservation): the
current level of habitat management decreases over time; no additional
populations are protected; and there is no augmentation and/or
reintroduction of populations;
Scenario 2 (Status Quo Management): the existing level of
habitat management remains constant over time; no additional
populations are protected; propagation and seed storage efforts remain
intact, but no populations

[[Page 37387]]

are augmented or reintroduced in the historical range; and
Scenario 3 (Increased Management and Conservation):
additional management efforts (increased removal of nonnative invasive
species; increased white-tailed deer harvest); additional populations
and suitable habitats are protected; and populations are augmented and/
or reintroduced on protected lands within the historical range.
Projected urbanization and three plausible future management
scenarios (decreased, status quo, and increased levels of management)
were evaluated to predict future Ocmulgee skullcap viability. Under
Scenario 1 (decreased management), resiliency is decreased for all
populations, 10 populations are predicted to be extirpated by 2040, and
an additional population is predicted to be extirpated by 2060 (Table
3). All populations experience a decline in resiliency with one
moderately resilient population remaining in both time steps. No highly
resilient populations will remain in 2040 and 2060. Overall, redundancy
is expected to decline in Scenario 1 with fewer, less resilient
Ocmulgee skullcap populations with a narrower distribution across the
species' range. Ten populations are projected to be extirpated in the
Ocmulgee RU and three are expected to be extirpated in the Savannah RU,
with all populations losing resiliency and affecting redundancy. With
over half of all populations predicted to be extirpated, representation
is expected to decline.
Under Scenario 2 (status quo management), six populations
experience declines in resiliency in 2040 and eight populations
experience declines in resiliency in 2060 (Table 3). No populations are
expected to increase in resiliency under Scenario 2. Five populations
are predicted to be extirpated by 2040 and six populations are
predicted to be extirpated by 2060. Three populations with high or
moderate resiliency remain under Scenario 2, with the remaining extant
populations exhibiting low or very low resiliency at 2040 and 2060,
respectively. The populations predicted to be extirpated occur across
the distribution in the Ocmulgee RU (five populations) and in the
upstream portion of the Savannah RU (one population). Given reduced
species resiliency and extirpation of populations in both RUs, species
redundancy is predicted to be reduced from current levels under
Scenario 2 with status quo management and conservation efforts. Five
populations in the Ocmulgee RU and one population in the Savannah RU
are predicted to be extirpated under Scenario 3, with most populations
declining in resiliency and affecting species redundancy. With fewer
populations in both RUs and reduced abundance in remaining populations,
species' representation is expected to decline from the current
moderate level.
Under Scenario 3 (increased management), resiliency changes are
mixed, but overall, there is an increase in population resiliency.
However, one population is predicted to be extirpated by 2040 and three
populations are predicted to be extirpated by 2060 in this scenario.
One population is projected to the extirpated in 2040 and three
populations are projected to be extirpated in 2060 in the Ocmulgee RU,
with no extirpations projected in the Savannah RU. In addition, the
increased management and conservation efforts scenario includes
augmentation, establishment, or reintroduction of additional
populations within the species' historical range, providing increased
redundancy for the species. Representation for the species is expected
to remain at the moderate level in Scenario 3, with population
extirpations countered by reintroduction and establishment of new
populations.
In all scenarios, the loss of sufficiently resilient populations
within both RUs indicates a future decline in the species' adaptive
capacity (representation). In addition, when populations are
extirpated, connectivity between populations is reduced, further
limiting potential genetic exchange between populations. Under all
three plausible future scenarios, the number of populations is
decreased and the distribution of populations across the species' range
is reduced. However, extant populations remain in both RUs under the
conditions assessed, although most populations exhibit low resiliency.
The predicted declines in resiliency and extirpation of populations
within both representative units indicates a future decline in the
species' redundancy. Therefore, Ocmulgee skullcap is at an increased
risk of extirpation from a catastrophic event.

Table 3--Future Resiliency of 19 Ocmulgee Skullcap Populations With Low Future Development Risk and Under Three
Future Management Scenarios at 2040 and 2060. Changes Between Population Resiliency at 2040 and 2060 are shown
in Bold
----------------------------------------------------------------------------------------------------------------
Scenario 1 Scenario 2 Scenario 3
Population name Current -----------------------------------------------------------
resiliency 2040/2060 2040/2060 2040/2060
----------------------------------------------------------------------------------------------------------------
Ocmulgee RU
----------------------------------------------------------------------------------------------------------------
James Dykes Memorial............ Moderate.......... Low/Low........... Moderate/Moderate. High/High.
Robins Air Force Base........... Low............... Very Low/Very Low. Low/Low........... Moderate/Moderate.
Savage Branch................... Low............... Extirpated/ Extirpated/ Extirpated/
Extirpated. Extirpated. Extirpated.
Bolingbroke Rest Area........... Low............... Very Low/Very Low. Low/Low........... Moderate/Moderate.
Crooked Creek................... Low............... Very Low/Very Low. Low/Low........... Moderate/Moderate.
Jordan Creek.................... Low............... Very Low/Very Low. Low/Low........... Moderate.
Shellstone Creek................ Low............... Very Low/Very Low. Low/Low........... Moderate/Moderate.
Dry Creek....................... Very Low.......... Extirpated/ Extirpated/ Low/Extirpated.
Extirpated. Extirpated.
Oaky Woods WMA North............ Very Low.......... Extirpated/ Extirpated/ Moderate/Moderate.
Extirpated. Extirpated.
Oaky Woods WMA South............ Very Low.......... Extirpated/ Extirpated/ Low/Extirpated.
Extirpated. Extirpated.
River North Bluff............... Very Low.......... Extirpated/ Extirpated/ Very Low/Very Low.
Extirpated. Extirpated.
South Shellstone Creek.......... Very Low.......... Extirpated/ Very Low/Very Low. Low/Low.
Extirpated.
Tributary to Richland Creek..... Very Low.......... Extirpated/ Very Low/Very Low. Low/Low.
Extirpated.
----------------------------------------------------------------------------------------------------------------
Savannah RU
----------------------------------------------------------------------------------------------------------------
Burke South..................... High.............. Moderate/Moderate. High/High......... High/High.

[[Page 37388]]

Burke North..................... Moderate.......... Low/Low........... Moderate/Moderate. High/High.
Columbia Richmond............... Low............... Very Low/ Low/Very Low...... Moderate/Low.
Extirpated.
Barney Bluff.................... Low............... Extirpated/ Very Low/Very Low. Low/Low.
Extirpated.
Horse Creek..................... Very Low.......... Extirpated/ Very Low/ Low/Very Low.
Extirpated. Extirpated.
Prescott Lakes.................. Very Low.......... Extirpated/ Very Low/Very Low. Low/Low.
Extirpated.
----------------------------------------------------------------------------------------------------------------

[GRAPHIC] [TIFF OMITTED] TP22JN22.000

Determination of Ocmulgee Skullcap Status

Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of endangered species
or threatened species because of any of the following factors: (A) The
present or threatened destruction, modification, or curtailment of its
habitat or range; (B) Overutilization for commercial, recreational,
scientific, or educational purposes; (C) Disease or predation; (D) The
inadequacy of existing regulatory mechanisms; or (E) Other natural or
manmade factors affecting its continued existence.

Status Throughout All of Its Range

We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats,
and the cumulative effect of the threats to the Ocmulgee skullcap. Our
review of the best

[[Page 37389]]

available information indicates Ocmulgee skullcap occurs in 19 extant
populations in 2 representative units, the Ocmulgee River watershed in
Georgia (13 populations) and the Savannah River watershed in Georgia/
South Carolina (6 populations), across the historical range of the
species. Recently, there have been two extirpations of occurrences
within currently extant populations in the Savannah River watershed.
One occurrence extirpation resulted from land use conversion to a pine
plantation and the other from severe deer herbivory. Ocmulgee skullcap
populations are generally small. At present, 3 extant populations
contain >100 individuals and 15 extant populations have 50 or fewer
than 50 individuals. Generally, the Ocmulgee skullcap has low
resilience to stochastic events at the population level. Sixteen of the
known populations have low abundance and exhibit low or very low
resiliency to stochastic events. Of the remaining three (out of 19)
extant populations, one population in the Savannah RU has high
resiliency and two have moderate resiliency (one in each the Ocmulgee
and Savannah RUs). As stated previously, Ocmulgee skullcap populations
are distributed in two watersheds across the historical range of the
species. We determined the Ocmulgee skullcap has sufficient
representation based on the species occurrences across the range and
the lack of population extirpations. The species-level redundancy was
determined to be reduced from historical condition due to the loss of
two occurrences. Although populations are distributed across the
species' range, the resiliency of most populations is low or very low.
Overall, the species has sufficient redundancy and the ability to
withstand catastrophic events.
Ocmulgee skullcap faces threats from habitat degradation or loss as
a result of development and urbanization (Factor A), competition and
encroachment from nonnative invasive species (Factor A and E) and from
herbivory by white-tailed deer (Factor C). These threats, which are
expected to be exacerbated by the small population size and existing
regulatory mechanisms that do not adequately addressing the threats,
were important factors in our assessment of the future viability of
Ocmulgee skullcap. The existing regulatory mechanisms (Factor D) are
not adequately addressing these threats to the extent that listing is
not warranted. Overutilization (Factor B), disease (Factor C), or
climate change (Factor E) are not currently affecting Ocmulgee skullcap
populations or are projected to do so in the future.
While threats are currently acting on most of the Ocmulgee skullcap
populations throughout its range, we find that the Ocmulgee skullcap is
not currently in danger of extinction throughout its range, because the
species current representation and redundancy is only slightly reduced
from historical conditions (two occurrences extirpated), and currently
includes one highly resilient population and two moderately resilient
populations. Further, an additional 16 extant populations, albeit with
low to very low resiliency, occur across the historical range of the
species. In addition, given that the species occurs in two different
watersheds (two representative units), a single catastrophic event is
not likely to impact both units at the same time. The current condition
still provides for resiliency, redundancy, and representation such that
it is not currently at risk of extinction throughout its range.
Therefore, we did not find that Ocmulgee skullcap is currently in
danger of extinction throughout all of its range, based on the current
condition of the species; thus, an endangered status is not
appropriate.
However, we expect that resiliency, redundancy, and representation
for the Ocmulgee skullcap will be reduced from its current condition in
the foreseeable future. In the future, an increase in urbanization,
competition from nonnative plants, and herbivory by white-tailed deer
in and near the habitat where Ocmulgee skullcap occurs is expected.
Given current and projected decreases in resiliency, populations would
become more vulnerable to extirpation from stochastic events, in turn,
resulting in concurrent losses in representation and redundancy. The
three plausible future scenarios, which projected urbanization and
changes in management of the species' habitat conditions and population
factors, suggest potential extirpation of as many as 11 of the 19
currently extant populations and a further loss of resiliency in all
populations. The future scenario expected to be most beneficial to the
species (through increased management) projected the loss of three
populations by 2060 with some populations exhibiting increased
resiliency.
The current threats to Ocmulgee skullcap are expected to continue
into the future. To assess future conditions, we used a 40-year
timeframe to account for reasonable predictions of threats continuing
into the future based on our examination of empirical data in the
recent past and takes into consideration the biology of the species
(multiple generations of a plant with a 5-8-year lifespan). Based on
the average lifespan of the species, confidence in projections and
models of factors influencing the species' viability, and certainty in
predictions of the species' response to those factors, we assessed the
future condition of Ocmulgee skullcap at the predictive time horizon of
2060. By using the 40-year time step for future scenarios, we
represented a minimum of six generations to account for normal
variation in plant reproduction and annual variation in climate
conditions.
Our analysis of the best available information determined the
threats currently acting upon the Ocmulgee skullcap are expected to
continue into the foreseeable future, some of which (urbanization) are
reasonably expected to worsen over time, thus reducing the species'
resiliency, redundancy, and representation. Overall, the current
threats acting on the Ocmulgee skullcap and its habitat are expected to
continue, and there are no indications that these threats would lessen
or that declining population trends would be reversed. These threats
and the effects to Ocmulgee skullcap put the species at risk of
extinction in the foreseeable future due to its limited resiliency,
representation, and redundancy. Based on our assessment, the Ocmulgee
skullcap is likely to become an endangered species within the
foreseeable future throughout all of its range.
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
conclude that the risk factors acting on the Ocmulgee skullcap and its
habitat, either singly or in combination, are not of sufficient
imminence, scope, or magnitude to indicate the species is in danger of
extinction now. Thus, after assessing the best available information,
we conclude that Ocmulgee skullcap is not currently in danger of
extinction but is likely to become in danger of extinction within the
foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. The court in Center for Biological Diversity v. Everson,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect of the Final Policy on Interpretation of
the Phrase ``Significant

[[Page 37390]]

Portion of Its Range'' in the Endangered Species Act's Definitions of
``Endangered Species'' and ``Threatened Species'' (Final Policy) (79 FR
37578; July 1, 2014) that provided that the Service does not undertake
an analysis of significant portions of a species' range if the species
warrants listing as threatened throughout all of its range. Therefore,
we proceed to evaluating whether the species is endangered in a
significant portion of its range--that is, whether there is any portion
of the species' range for which both (1) the portion is significant;
and (2) the species is in danger of extinction in that portion.
Depending on the case, it might be more efficient for us to address the
``significance'' question or the ``status'' question first. We can
choose to address either question first. Regardless of which question
we address first, if we reach a negative answer with respect to the
first question that we address, we do not need to evaluate the other
question for that portion of the species' range.
Following the court's holding in Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (i.e.,
endangered). In undertaking this analysis for Ocmulgee skullcap, we
choose to address the status question first--we consider information
pertaining to the geographic distribution of both the species and the
threats that the species faces to identify any portions of the range
where the species is endangered.
For Ocmulgee skullcap, we considered whether the threats are
geographically concentrated in any portion of the species' range at a
biologically meaningful scale. We examined the following threats:
habitat loss and fragmentation due to development and urbanization
(Factor A); nonnative invasive plants (Factor A and E); and herbivory
(Factor C), including cumulative effects. We found no concentration of
threats in any portion of the Ocmulgee skullcap's range at a
biologically meaningful scale. Ocmulgee skullcap populations affected
by invasive plants and herbivory are broadly and evenly distributed
across both representative units and the species' range. Populations on
protected lands are considered less at risk from stressors associated
with current and future development due to long-term management plans,
conservation easements in perpetuity, or other protective mechanisms.
Nonetheless, Ocmulgee skullcap populations on protected lands (8 of 19
populations) occur throughout the range of the species and have
comparable resiliency to populations on non-protected lands, with the
exception of one population that exhibits high current resiliency on
protected lands.
Thus, there are no portions of the species' range where the species
has a different status from its rangewide status. Therefore, no portion
of the species' range provides a basis for determining that the species
is in danger of extinction in a significant portion of its range, and
we determine that the species is likely to become in danger of
extinction within the foreseeable future throughout all of its range.
This does not conflict with the courts' holdings in Desert Survivors v.
U.S. Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D.
Cal. 2018) and Center for Biological Diversity v. Jewell, 248 F. Supp.
3d 946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we
did not need to consider whether any portions are significant and,
therefore, did not apply the aspects of the Final Policy's definition
of ``significant'' that those court decisions held were invalid.

Determination of Status

Our review of the best available scientific and commercial
information indicates that the Ocmulgee skullcap meets the definition
of a threatened species. Therefore, we propose to list the Ocmulgee
skullcap as a threatened species in accordance with sections 3(20) and
4(a)(1) of the Act.

Available Conservation Measures

Conservation measures provided for species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (https://www.fws.gov/endangered),
or from our Georgia Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In

[[Page 37391]]

addition, pursuant to section 6 of the Act, the State(s) of Georgia and
South Carolina would be eligible for Federal funds to implement
management actions that promote the protection or recovery of the
Ocmulgee skullcap. Information on our grant programs that are available
to aid species recovery can be found at: https://www.fws.gov/grants.
Although the Ocmulgee skullcap is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include management and any other landscape-altering
activities on Federal lands administered by the issuance of a permit
under section 404 Clean Water Act (33 U.S.C. 1251 et seq.) by the U.S.
Army Corps of Engineers, and construction and maintenance of roads or
highways by the Federal Highway Administration.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. The Act allows the Secretary to
promulgate protective regulations for threatened species pursuant to
section 4(d) of the Act. The discussion below regarding protective
regulations under section 4(d) of the Act complies with our policy.

II. Proposed Rule Issued Under Section 4(d) of the Act

Background

Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened. The U.S. Supreme Court has noted that statutory
language similar to the language in section 4(d) of the Act authorizing
the Secretary to take action that she ``deems necessary and advisable''
affords a large degree of deference to the agency (see Webster v. Doe,
486 U.S. 592, 600 (1988)). Conservation is defined in the Act to mean
the use of all methods and procedures which are necessary to bring any
endangered species or threatened species to the point at which the
measures provided pursuant to the Act are no longer necessary.
Additionally, the second sentence of section 4(d) of the Act states
that the Secretary may by regulation prohibit with respect to any
threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting one or more of the prohibitions
under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this proposed 4(d) rule would promote
conservation of the Ocmulgee skullcap by encouraging management of the
landscape in ways that meet both land management considerations and the
conservation needs of the Ocmulgee skullcap, specifically by providing
exceptions for incidental take for State agency conservation actions,
scientific permits for research, and use of cultivated-origin seeds for
education. The provisions of this proposed rule are one of many tools
that we would use to promote the conservation of the Ocmulgee skullcap.
This proposed 4(d) rule would apply only if and when we make final the
listing of the Ocmulgee skullcap as a threatened species.
As mentioned previously in Available Conservation Measures, section
7(a)(2) of the Act requires Federal agencies, including the Service, to
ensure that any action they fund, authorize, or carry out is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of designated critical habitat of such species. In addition, section
7(a)(4) of the Act requires Federal agencies to confer with the Service
on any agency action that is likely to jeopardize the continued
existence of any species proposed to be listed under the Act or result
in the destruction or adverse modification of proposed critical
habitat.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of Federal actions that are subject to
the section 7 consultation process are actions on State, Tribal, local,
or private lands that require a Federal permit (such as a permit from
the U.S. Army Corps of Engineers under section 404 of the Clean Water
Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section
10 of the Act) or that involve some other Federal action (such as
funding from the Federal Highway Administration, Federal Aviation
Administration, or the Federal

[[Page 37392]]

Emergency Management Agency). Federal actions not affecting listed
species or critical habitat--and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or carried out
by a Federal agency--do not require section 7 consultation.
These requirements are the same for a threatened species with a
species-specific 4(d) rule. For example, a Federal agency's
determination that an action is ``not likely to adversely affect'' a
threatened species will require the Service's written concurrence.
Similarly, a Federal agency's determination that an action is ``likely
to adversely affect'' a threatened species will require formal
consultation and the formulation of a biological opinion.

Provisions of the Proposed 4(d) Rule

Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the
Ocmulgee skullcap's conservation needs. As discussed previously in the
Summary of Biological Status and Threats, we have concluded that the
Ocmulgee skullcap is likely to become in danger of extinction within
the foreseeable future primarily due to development and urbanization,
increasing prevalence of nonnative invasive plants, herbivory, and the
interaction between these elements. Specifically, a number of
activities have the potential to affect the Ocmulgee skullcap,
including land clearing for development, agriculture and silviculture,
and actions related to urbanization and development. Section 4(d)
requires the Secretary to issue such regulations as she deems necessary
and advisable to provide for the conservation of each threatened
species and authorizes the Secretary to include among those protective
regulations any of the prohibitions that section 9(a)(2) of the Act
prescribes for endangered species. We find that, if finalized, the
protections, prohibitions, and exceptions in this proposed rule as a
whole satisfy the requirement in section 4(d) of the Act to issue
regulations deemed necessary and advisable to provide for the
conservation of the Ocmulgee skullcap.
The protective regulations we are proposing for the Ocmulgee
skullcap incorporate prohibitions from section 9(a)(2) to address the
threats to the species. Section 9(a)(2) prohibits the following
activities for endangered plants: importing or exporting; certain acts
related to removing, damaging, and destroying; delivering, receiving,
transporting, or shipping in interstate or foreign commerce in the
course of commercial activity; or selling or offering for sale in
interstate or foreign commerce. These proposed protective regulations
include all of these prohibitions for the Ocmulgee skullcap because the
Ocmulgee skullcap is at risk of extinction in the foreseeable future
and putting these prohibitions in place will help to preserve remaining
populations, slowing their rate of potential decline, and decreasing
synergistic, negative effects from other stressors. Prohibiting import
and export, transportation, and commerce of the species limits
unauthorized propagation and distribution. As a whole, the proposed
4(d) rule would help in the efforts to recover the species.
In particular, this proposed 4(d) rule would provide for the
conservation of the Ocmulgee skullcap by prohibiting the following
activities, unless they fall within specific exceptions or are
otherwise authorized or permitted: remove and reduce to possession the
species from areas under Federal jurisdiction; maliciously damage or
destroy the species on any such area; remove, cut, dig up, or damage or
destroy the species on any other area in knowing violation of any law
or regulation of any State or in the course of any violation of a State
criminal trespass law; importing or exporting; certain acts related to
interstate or foreign commerce in the course of commercial activity; or
selling or offering for sale in interstate or foreign commerce.
The exceptions to the prohibitions would include all the general
exceptions to the prohibition against removing and reducing to
possession endangered plants, as set forth in 50 CFR 17.61.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise-prohibited activities, including those described above. The
regulations that govern permits for threatened plants state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species (50 CFR 17.72). Those
regulations also state that the permit shall be governed by the
provisions of Sec. 17.72 unless a special rule applicable to the plant
is provided in Sec. Sec. 17.73 to 17.78. Therefore, permits for
threatened species are governed by the provisions of Sec. 17.72 unless
a species-specific 4(d) rule provides otherwise. However, under our
recent revisions to Sec. 17.71, the prohibitions in Sec. 17.71(a)
will not apply to any plant listed as a threatened species after
September 26, 2019. As a result, for threatened plant species listed
after that date, any protections must be contained in a species-
specific 4(d) rule. We did not intend for those revisions to limit or
alter the applicability of the permitting provisions in Sec. 17.72, or
to require that every species-specific 4(d) rule spell out any
permitting provisions that apply to that species and species-specific
4(d) rule. To the contrary, we anticipate that permitting provisions
would generally be similar or identical for most species, so applying
the provisions of Sec. 17.72 unless a species-specific 4(d) rule
provides otherwise would likely avoid substantial duplication.
Moreover, this interpretation brings Sec. 17.72 in line with the
comparable provision for wildlife at 50 CFR 17.32, in which the second
sentence states that the permit shall be governed by the provisions of
Sec. 17.32 unless a special rule applicable to the wildlife, appearing
in 50 CFR 17.40 to 17.48, provides otherwise. Under 50 CFR 17.72 with
regard to threatened plants, a permit may be issued for the following
purposes: for scientific purposes, to enhance propagation or survival,
for economic hardship, for botanical or horticultural exhibition, for
educational purposes, or for other purposes consistent with the
purposes and policy of the Act. Additional statutory exemptions from
the prohibitions are found in sections 9 and 10 of the Act.
We recognize the beneficial and educational aspects of activities
with seeds of cultivated plants, which generally enhance the
propagation of the species and, therefore, would satisfy permit
requirements under the Act. We intend to monitor the interstate and
foreign commerce and import and export of these specimens in a manner
that will not inhibit such activities, providing the activities do not
represent a threat to the survival of the species in the wild. In this
regard, seeds of cultivated specimens would not be subject to the
prohibitions above, provided that a statement that the seeds are of
``cultivated origin'' accompanies the seeds or their container (e.g.,
the seeds could be moved across State lines or between territories for
purposes of seed banking or to use for outplanting without additional
regulations) (50 CFR 17.71(a)).
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working

[[Page 37393]]

relationships with local governments and landowners, are in a unique
position to assist the Service in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Service shall
cooperate to the maximum extent practicable with the States in carrying
out programs authorized by the Act. Therefore, any qualified employee
or agent of a State conservation agency that is a party to a
cooperative agreement with the Service in accordance with section 6(c)
of the Act, who is designated by his or her agency for such purposes,
would be able to conduct activities designed to conserve the Ocmulgee
skullcap, which may result in otherwise prohibited activities without
additional authorization.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or our ability to
enter into partnerships for the management and protection of the
Ocmulgee skullcap. However, interagency cooperation may be further
streamlined through planned programmatic consultations for the species
between us and other Federal agencies, where appropriate. We ask the
public, particularly State agencies and other interested stakeholders
that may be affected by the proposed 4(d) rule, to provide comments and
suggestions regarding additional guidance and methods that we could
provide or use, respectively, to streamline the implementation of this
proposed 4(d) rule (see Information Requested, above).

III. Critical Habitat

Background

Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species; and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals). Additionally, our regulations
at 50 CFR 424.02 define the word ``habitat,'' for the purposes of
designating critical habitat only, as the abiotic and biotic setting
that currently or periodically contains the resources and conditions
necessary to support one or more life processes of a species. We
proposed to rescind this definition on October 27, 2021 (86 FR 59353);
however, for purposes of this rule, we have determined the proposed
critical habitat designation meets this definition.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation also does not allow the
government or public to access private lands. Such designation does not
require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. The implementing regulations at 50 CFR 424.12(b)(2) further
delineate unoccupied critical habitat by setting out three specific
parameters: (1) when designating critical habitat, the Secretary will
first evaluate areas occupied by the species; (2) the Secretary will
only consider unoccupied areas to be essential where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species; and (3) for an
unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to the conservation of the species. Section 4 of the Act requires that
we designate critical habitat on the basis of the best scientific data
available. Further, our Policy on Information Standards Under the
Endangered Species Act (published in the Federal Register on July 1,
1994 (59 FR 34271)), the Information Quality Act (section 515 of the
Treasury and General Government Appropriations Act for Fiscal Year 2001
(Pub. L. 106-554; H.R. 5658)), and our associated Information Quality
Guidelines provide criteria, establish procedures, and provide guidance
to ensure that our decisions are based on the best scientific data
available. They require our biologists, to

[[Page 37394]]

the extent consistent with the Act and with the use of the best
scientific data available, to use primary and original sources of
information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
As the regulatory definition of ``habitat'' reflects (50 CFR
424.02), habitat is dynamic, and species may move from one area to
another over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for the recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of this species. Similarly, critical
habitat designations made on the basis of the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans
(HCPs), or other species conservation planning efforts if new
information available at the time of those planning efforts calls for a
different outcome.

Prudency Determination

Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed earlier in this document, there is currently no
imminent threat of collection or vandalism identified under Factor B
for this species, and identification and mapping of critical habitat is
not expected to initiate any such threat. In our SSA report and
proposed listing determination for the Ocmulgee skullcap, we determined
that the present or threatened destruction, modification, or
curtailment of habitat or range is a threat to Ocmulgee skullcap and
that those threats in some way can be addressed by section 7(a)(2)
consultation measures. The species occurs wholly in the jurisdiction of
the United States, and we are able to identify areas that meet the
definition of critical habitat. Therefore, because none of the
circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have
been met and because the Secretary has not identified other
circumstances for which this designation of critical habitat would be
not prudent, we have determined that the designation of critical
habitat is prudent for the Ocmulgee skullcap.

Critical Habitat Determinability

Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the
Ocmulgee skullcap is determinable. Our regulations at 50 CFR
424.12(a)(2) state that critical habitat is not determinable when one
or both of the following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where this species is
located. This and other information represent the best scientific data
available and led us to conclude that the designation of critical
habitat is determinable for the Ocmulgee skullcap.

Physical or Biological Features Essential to the Conservation of the
Species

In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for

[[Page 37395]]

migration, or susceptibility to flooding or fire that maintains
necessary early-successional habitat characteristics. Biological
features might include prey species, forage grasses, specific kinds or
ages of trees for roosting or nesting, symbiotic fungi, or a particular
level of nonnative species consistent with conservation needs of the
listed species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, the Service may consider an appropriate quality,
quantity, and spatial and temporal arrangement of habitat
characteristics in the context of the life-history needs, condition,
and status of the species. These characteristics 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 breeding,
reproduction, or rearing (or development) of offspring; and habitats
that are protected from disturbance.
Our SSA report for the Ocmulgee skullcap provides the scientific
information upon which this proposed critical habitat designation is
based (Service 2020, entire). A thorough account of the ecological
needs of the Ocmulgee skullcap can be found in the SSA report (Service
2020, chapter 2, pp. 4-11), and is briefly summarized here in the
context of the physical or biological features that are essential to
the conservation of the species.
Habitat: As described in the Background section, Ocmulgee skullcap
occurs in moist, calcareous hardwood forests on north to northeast
facing slopes of river bluffs and their floodplains in the Ocmulgee and
Savannah River watersheds in Georgia and South Carolina. River bluffs
and steep slopes are subject to localized disturbances that limit the
accumulation of leaf litter and competition. Ocmulgee skullcap
individuals require reduced competition to grow and reproduce within
suitable habitat.
These hardwood forests are characterized by a mature, mixed-level
canopy with spatial heterogeneity that provides mottled shade required
by Ocmulgee skullcap. The herbaceous layer in this forest type includes
a rich diversity of grasses and forbs. These grasses and forbs in the
herbaceous layer of an intact forest support the required pollinators
for the species in adequate numbers to facilitate Ocmulgee skullcap
reproduction. The upper canopy of mixed hardwoods in a forest with
suitable habitat provides the partial shade required for germination,
growth, and reproduction. Intact calcareous forests are characterized
by a diverse species composition ranging from short-lived pioneer
species to long-lived shade tolerant species (Edwards et al. 2013, p.
406). Communal species in these areas may consist of red buckeye
(Aesculus pavia), Eastern redbud (Cercis canadensis), white oak
(Quercus alba), basswood (Tilia americana), American holly (Ilex
opaca), and relict trillium (Trillium reliquum) (Edwards et al. 2013,
p. 409; Bradley 2019, pp. 21-28).
Intact forested habitat with a mature canopy and discrete
disturbances provides an important buffer of suitable habitat for
Ocmulgee skullcap populations to decrease encroachment of competing
nonnative invasive plants. Competition with other native species and
nonnative invasive species can restrict seedlings, vegetative plants,
and flowering plants from obtaining the three key resources (water,
sunlight, and soil) needed to grow and reproduce; therefore, healthy
Ocmulgee skullcap individuals and populations need reduced competition.
Soils: The calcareous hardwood forests where Ocmulgee skullcap
occurs are influenced by outcroppings of limestone or marl (i.e.,
calcium rich parent material for soils). Ocmulgee skullcap requires
well-drained soils or shallow, calcium rich soils that are buffered or
circumneutral (pH between 6.5 and 7.5) to germinate. These soils occur
within regions underlain or otherwise influenced by limestone or marl.
More detail on the habitat and life history needs are summarized
above under Background, and a thorough review is available in the SSA
report (Service 2020, entire; available on https://www.regulations.gov
under Docket No. FWS-R4-ES-2021-0059).
A summary of the resource needs of the Ocmulgee skullcap is
provided below in Table 4.

Table 4--Ocmulgee Skullcap Individual Resources Needs by Life Stage. H = Habitat, N = Nutrition, R =
Reproduction. Key Resource Needs are in Bolded Text and Include Precipitation (Water), Partial Sunlight, Soil,
and Reduced Competition
[Collins 1976; Chafin 2008]
----------------------------------------------------------------------------------------------------------------
Resource and/or circumstances needed for individuals Resource
Life stage to complete life stage function (HNR)
----------------------------------------------------------------------------------------------------------------
Seed..................................... Fall/winter precipitation........................... N
Bare mineral calcium-rich soil...................... H, N, R
Partial sunlight.................................... N
Seedling................................. Sufficient summer/fall precipitation................ N
Calcium-rich soil................................... H, N
Reduced competition from invasives/encroaching H
plants.
Partial sunlight for photosynthesis................. N
Vegetative plant......................... Spring/summer precipitation......................... N
Calcium-rich soil................................... H, N
Reduced competition from invasives/encroaching H
plants.
Partial sunlight for photosynthesis................. N
Flowering plant.......................... Spring/summer precipitation......................... N
Calcium-rich soil................................... H, N
Reduced competition from invasives/encroaching H
plants.
Pollinators required................................ R
Partial sunlight for photosynthesis................. N
----------------------------------------------------------------------------------------------------------------

[[Page 37396]]

Summary of Essential Physical or Biological Features

We derive the specific physical or biological features essential to
the conservation of Ocmulgee skullcap from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (Service 2020, entire;
available on https://www.regulations.gov under Docket No. FWS-R4-ES-
2021-0059). We have determined that the following physical or
biological features are essential to the conservation of Ocmulgee
skullcap:
(1) River bluffs with steep and/or shallow soils that are subject
to localized disturbances that limit the accumulation of leaf litter
and competition within the Upper Gulf Coastal Plain and Piedmont of
Georgia.
(2) Well-drained soils that are buffered or circumneutral (pH
between 6.5 and 7.5) generally within regions underlain or otherwise
influenced by limestone or marl (mixed carbonate-clay rock).
(3) A mature, mixed-level canopy with spatial heterogeneity,
providing mottled shade and often including a rich diversity of grasses
and forbs characterizing the herb layer.
(4) Intact forested habitat that is fully functional (i.e., with
mature canopy and discrete disturbances) and buffered by surrounding
habitat to impede the invasion of competitors.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of Ocmulgee
skullcap may require special management considerations or protection to
reduce the following threats: development, nonnative invasive species
(plants), and herbivory by white-tailed deer.
Special management considerations or protection are required within
critical habitat areas to address these threats. Management activities
that could ameliorate these threats include, but are not limited to,
review of proposed County and State projects and other development
projects for effects to Ocmulgee skullcap and its habitat and avoidance
of impacts to the species, control and reduction of nonnative invasive
species, harvest of deer to reduce herbivory in affected populations,
and habitat restoration projects. These management activities would
protect the physical or biological features for the species by
promoting intact vegetative community with mixed heterogeneity, mottled
shade, and a diverse herbaceous layer.

Criteria Used To Identify Critical Habitat

As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. To determine and select
appropriate occupied areas that contain the physical or biological
features essential to the conservation of the species or areas
otherwise essential for the conservation of the Ocmulgee skullcap, we
developed a conservation strategy for the species. The goal of the
conservation strategy for the Ocmulgee skullcap is to recover the
species to the point where the protections of the Act are no longer
necessary. The role of critical habitat in achieving this conservation
goal is to identify the specific areas within the species' range that
provide essential physical or biological features, without which range-
wide resiliency, redundancy, and representation could not be achieved.
We anticipate that recovery will require continued protection of
existing populations and habitats that contribute to the viability of
the species, as well as ensuring there are adequate numbers of
individual plants in populations and that there are multiple
sufficiently resilient populations in each representative unit and
across the current range of the species. This approach will help to
ensure that catastrophic events cannot simultaneously affect all known
populations of the Ocmulgee skullcap as well as lead to connectivity
among populations. Recovery considerations, such as striving for
representation of both watersheds in the species' current range, were
considered in formulating this proposal.
Current extant populations, with the exception of one large area,
are confined to small patches (ranging in size from 0.24 to 24 ac (0.1
to 9.7 ha)). We defined current extant populations as those with
occurrences since 1999. Most populations have occurrence data from
2007-2019, but we included element occurrence data from the 1999
comprehensive species survey in for those few sites that have not been
revisited but contain suitable habitat with the physical or biological
features essential to the conservation of the species. The areas
surrounding these patches contain similar habitat, with the physical or
biological features essential to the conservation of the species,
although occurrences have not been recorded, and in some instances, no
surveys conducted there. Ocmulgee skullcap requires areas of intact
hardwood forest to provide the appropriate canopy conditions in large
enough areas to buffer the species from encroachment of nonnative
invasive species. The small patches do not, by themselves, provide
enough habitat to support the species or provide connectivity among
populations. In addition, the small populations in these patches
experience the exacerbation of other threats associated with small
population size (see Influences on Ocmulgee Skullcap Viability). Based
on the Act's implementing regulations (50 CFR 424.12 (d)), when
habitats are in close proximity to one another, an inclusive area may
be designated. We delineated populations of Ocmulgee skullcap using a 2
km (1.24 mi) radius circle, with overlapping buffers determined to be
within the same population based on the need for sufficient space and
resources for required pollinators (NatureServe 2020, entire; Service
2020, p. 21). Therefore, the habitat areas surrounding Ocmulgee
skullcap occurrences are also included within these proposed occupied
units, because they have the physical or biological features essential
to the conservation of the species, provide space for population
expansion that would increase the resiliency within these units,
provide connectivity between individual patches of occupied habitat,
and support the conditions the Ocmulgee skullcap individuals and
populations require. The SSA report contains the best available
information used to identify critical habitat for the Ocmulgee
skullcap, which includes existing monitoring data, population status
surveys, and relevant Geographic Information Systems (GIS) layers
(Service 2020, pp. 26, 36-39, Appendix A).
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criteria: areas that are considered to
be occupied at the time of listing within the historical range of the

[[Page 37397]]

species, and that contain physical or biological features to support
life-history functions that are essential for the conservation of the
species. For the purposes of the proposed critical habitat designation,
and for areas within the geographic area occupied by the species at the
time of listing, we determined a unit to be occupied if it contains a
recent observation (i.e., observed since 1999). These areas are
consistent with the identified populations in the SSA report that were
derived using occurrence data and a 2-km separation distance for
sufficient space and resources for required pollinators (NatureServe
2020, entire; Service 2020, p. 21). Suitable habitat within the
buffered occurrences was determined through GIS analyses that
identified the areas with appropriate aspect, geomorphons (landform
pattern), temperature, burned area, soil type, vegetation cover and
landcover, using source data from the National Elevation Dataset,
Landsat, WorldClim, NatureServe landcover map, and the GAP/LANDFIRE
National Terrestrial Ecosystems dataset. Information specific to
calcium-rich soils was not available; therefore, we consider species
occurrence to represent presence of this identified species need.
Based on this analysis, the following areas meet the criteria for
areas occupied by the species at the time of listing: Columbia/
Richmond, Barney Bluff, Burke North, Burke South, Prescott Lakes,
Bolingbroke Rest Area, River North Bluff, Savage Branch, Robins Air
Force Base, Tributary (Trib) Richland Creek, Oaky Woods North, Crooked
Creek, Shellstone Creek, Oaky Woods South, Dry Creek, James Dykes
Memorial, South Shellstone Creek, and Jordan Creek. These areas, known
to be occupied by the species historically, include the extant
populations. These areas meet our conservation strategy and provide
essential physical or biological features necessary to support and
increase resiliency, redundancy, and representation for the Ocmulgee
skullcap, and designating critical habitat in these areas, which occur
in both watersheds (representative units) and currently contribute to,
or are units in which resiliency can be improved to contribute to, the
species' viability, will sufficiently lead to the protection, and
eventual reduction in risk of extirpation, of the species.
We are not currently proposing to designate any areas outside the
geographical area occupied by the species because we have not
identified any unoccupied areas that are essential for the conservation
of the species. The protection of the current extant populations in
both representative units would sufficiently reduce the risk of
extinction, and improving the resiliency within these currently
occupied units would increase viability to the point that the
protections of the Act are no longer necessary. We have determined that
the areas we are proposing are sufficient for the recovery of the
species and align with our conservation strategy for Ocmulgee skullcap.
Sources of data for this proposed designation of critical habitat
include multiple databases maintained by universities and State
agencies in Georgia and South Carolina, as well as numerous survey
reports in suitable habitat throughout the species' range. Other
sources of available information on habitat requirements for this
species include studies conducted at occupied sites and published in
peer-reviewed articles, agency reports, and data collected during
monitoring efforts (Cammack and Genachte 1999, entire; Morris 1999,
entire; Snow 1999 and 2001, entire; Bradley 2019, entire; Service 2020,
entire). Observation and collection records were compiled and provided
to us by State partners during the SSA analysis.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for Ocmulgee skullcap. The
scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands nor all lands covered under the Robins Air Force
Base integrated natural resources management plan (INRMP), which are
exempted from the proposed critical habitat designation (see
Application of Section 4(a)(3) of the Act under Exemptions, below). Any
such lands inadvertently left inside critical habitat boundaries shown
on the maps of this proposed rule have been excluded by text in the
proposed rule and are not proposed for designation as critical habitat.
Therefore, if the critical habitat is finalized as proposed, a Federal
action involving these lands would not trigger section 7 consultation
with respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the physical or
biological features in the adjacent critical habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. Units are proposed for designation based on one or more of the
physical or biological features being present to support Ocmulgee
skullcap's life-history processes. All units contain all of the
identified physical or biological features and support multiple life-
history processes.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-
2021-0059 and on our internet site https://www.fws.gov/office/georgia-ecological-services/library.

Proposed Critical Habitat Designation

We are proposing to designate 6,577 ac (2,662 ha) in 18 units as
critical habitat for Ocmulgee skullcap. The critical habitat areas we
describe below constitute our current best assessment of areas that
meet the definition of critical habitat for Ocmulgee skullcap. The 18
areas we propose as critical habitat are: (1) Columbia/Richmond; (2)
Barney Bluff; (3) Burke North; (4) Burke South; (5) Prescott Lakes; (6)
Bolingbroke Rest Area; (7) River North Bluff; (8) Savage Branch; (9)
Robins Air Force Base; (10) Trib Richland Creek; (11) Oaky Woods North;
(12) Crooked Creek; (13) Shellstone Creek; (14) Oaky Woods South; (15)
Dry Creek; (16) James Dykes Memorial; (17) South Shellstone Creek; and
(18) Jordan Creek. All 18 proposed units are currently occupied by
Ocmulgee skullcap. Table 5 shows the proposed critical habitat units
and the approximate area of each unit. Approximately 76 percent of the
proposed critical habitat occurs on private lands, 0.4 percent occurs
on county lands, and the remaining 23 percent occurs on State owned or
managed lands. No Federal lands are included in this proposed critical
habitat designation.

[[Page 37398]]

Table 5--Proposed Critical Habitat Units for Ocmulgee Skullcap
[Area estimates reflect all land within critical habitat unit
boundaries]
------------------------------------------------------------------------
Size of unit
Critical habitat unit number Land ownership by type in acres
and name (hectares)
------------------------------------------------------------------------
1a: Columbia/Richmond.......... Richmond County; 106 (43)
Private.
1b: Columbia/Richmond.......... Private................ 117 (47)
1c: Columbia/Richmond.......... Private................ 334 (135)
2: Barney Bluff................ Private................ 415 (168)
3: Burke North................. Private................ 526 (213)
4: Burke South................. State of Georgia; 976 (395)
Private.
5: Prescott Lakes.............. Private................ 81 (33)
6: Bolingbroke Rest Area....... Private................ 338 (137)
7: River North Bluff........... State of Georgia; 115 (46)
Private.
8: Savage Branch............... Private................ 115 (46)
9: Robins Air Force Base....... Private................ 231 (93)
10: Trib Richland Creek........ State of Georgia; 340 (138)
Private.
11: Oaky Woods North........... State of Georgia; 657 (266)
Private.
12: Crooked Creek.............. State of Georgia; 205 (83)
Private.
13: Shellstone Creek........... State of Georgia; 160 (65)
Private.
14: Oaky Woods South........... State of Georgia; 363 (147)
Private.
15: Dry Creek.................. State of Georgia; 330 (133)
Private.
16: James Dykes Memorial....... State of Georgia; 515 (208)
Private.
17: South Shellstone Creek..... State of Georgia; 403 (163)
Private.
18: Jordan Creek............... Private................ 250 (101)
---------------
Total...................... ....................... 6,577 (2,662)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for Ocmulgee skullcap, below.

Unit 1: Columbia/Richmond

Unit 1 consists of three subunits comprising 557 ac (225 ha) in
Columbia and Richmond Counties, Georgia, and Aiken and Edgefield
Counties, South Carolina. This unit consists of land owned by Richmond
County (five percent) and private landowners (95 percent), with 40
percent of Unit 1 held in a conservation easement. Unit 1 is considered
occupied by Ocmulgee skullcap. All subunits are located north of
Interstate 20 along the Savannah River and the state border.
Subunit 1a consists of 106 ac (43 ha) in Columbia County, Georgia.
This subunit lies on the west side of the Savannah River, just north of
the City of Augusta. Richmond County owns and manages 28 ac (11.3 ha)
in this subunit, and the other 78 ac (31.7 ha) are privately owned. The
subunit contains all of the physical or biological features essential
to the conservation of the species, as described above under Summary of
Essential Physical or Biological Features. Essential physical or
biological feature (4) is degraded in this subunit which is adjacent to
developed areas. Special management considerations or protection may be
required in Subunit 1a to address and alleviate impacts from stressors
that have led to the loss or degradation of the habitat, including
urbanization and commercial development and nonnative invasive species
(see Special Management Considerations or Protection, above). Special
management considerations related to developed areas that would benefit
the habitat in this subunit include, but are not limited to, review of
County development plans and other projects considering land use
changes with recommendations to avoid areas occupied by Ocmulgee
skullcap, and control or removal of nonnative invasive species.
Subunit 1b consists of 117 ac (47 ha) in Richmond County, Georgia,
on lands in private ownership. This subunit lies on the west side of
the Savannah River, just north of the City of Augusta. The subunit
contains all of the physical or biological features essential to the
conservation of the species, as described above under Summary of
Essential Physical or Biological Features. Essential physical or
biological feature (4) is degraded in this subunit which is adjacent to
developed areas. Special management considerations or protection may be
required in Subunit 1b to address and alleviate impacts from stressors
that have led to the loss or degradation of the habitat, including
urbanization and commercial development and nonnative invasive species
(see Special Management Considerations or Protection, above). Special
management considerations related to developed areas that would benefit
the habitat in this subunit include, but are not limited to, review of
County development plans and other projects considering land use
changes with recommendations to avoid areas occupied by Ocmulgee
skullcap, and control or removal of nonnative invasive species.
Subunit 1c consists of 334 ac (135 ha) Aiken and Edgefield
Counties, South Carolina. This subunit lies on the east side of the
Savannah River, just north of the City of Augusta. The Nature
Conservancy owns and manages the 224 ac (90 ha) Greystone Preserve for
conservation in this subunit, and the remaining 110 ac (45 ha) are in
private ownership. The subunit contains all of the physical or
biological features essential to the conservation of the species.
Special management considerations or protection may be required
within Subunit 1c to alleviate impacts from stressors that have led to
the loss and degradation of the habitat, including urbanization and
residential and commercial development, nonnative invasive species, and
herbivory by deer. Special management considerations related to
encroachment of nonnative invasive species and herbivory by deer that
would benefit the habitat in this subunit include, but are not limited
to, removal of nonnative invasive species via prescribed burning,
mechanical, or chemical treatments, restoration of forest conditions,
and increased harvest/hunting or exclusion of white-tailed deer. In
addition, special management

[[Page 37399]]

considerations related to developed areas that would benefit the
habitat in this subunit include, but are not limited to, review of
County development plans and other projects considering land use
changes with recommendations to avoid areas occupied by Ocmulgee
skullcap, native vegetation restoration in right-of-way and
transmission line vegetation maintenance areas (edge effect), and
removal of nonnative invasive species.

Unit 2: Barney Bluff

Unit 2 consists of 415 ac (168 ha) in the southeast portion of
Richmond County, Georgia. This unit lies to the west of the Savannah
River south of the City of Augusta on land in private ownership. Unit 2
is considered occupied by Ocmulgee skullcap. The unit contains all of
the physical or biological features essential to the conservation of
the species.
Special management considerations or protection may be required
within Unit 2 to alleviate impacts from stressors that have led to the
degradation of the habitat, including urbanization and development,
erosion due to logging, and herbivory by deer. Such special management
or protection may include conservation efforts to reduce deer browsing
through hunting/harvest or exclusion. Special management or protection
to reduce erosion may also include implementation of best management
practices during silviculture and logging and habitat restoration
efforts. In addition, special management considerations related to
developed areas that would benefit the habitat in this unit include,
but are not limited to, review of County development plans and other
projects considering land use changes with recommendations to avoid
areas occupied by Ocmulgee skullcap.

Unit 3: Burke North

Unit 3 consists of 526 ac (213 ha) in the northwestern portion of
Burke County, Georgia. The unit lies to the west of the Savannah River
on land in private ownership. A conservation easement is in place on 9
ac (3.6 ha) of private land within the unit. Unit 3 is considered
occupied by Ocmulgee skullcap. Unit 3 contains all of the physical or
biological features essential to the conservation of the species.
Special management considerations or protection may be required
within Unit 3 to alleviate impacts from stressors that have led to the
loss or degradation of the habitat, including effects of silviculture
and logging and herbivory by deer. Such special management or
protection may include conservation efforts to reduce deer browsing
through hunting/harvest or exclusion. Special management or protection
may also include implementation of best management practices in
silviculture and logging activities and habitat restoration efforts.

Unit 4: Burke South

Unit 4 consists of 976 ac (395 ha) in the western portion of Burke
County, Georgia. This unit lies west of the Savannah River on lands
owned by the Georgia Department of Natural Resources (199 ac (80 ha) on
the Yuchi Wildlife Management Area), and on lands in private ownership
(777 ac (314 ha)). Unit 4 is considered occupied by Ocmulgee skullcap.
Unit 4 contains all of the physical or biological features essential to
the conservation of the species.
Special management considerations or protection may be required
within Unit 4 to alleviate impacts from stressors that have led to the
degradation of the habitat, including urbanization and development and
herbivory by deer. In some cases, these threats are being addressed or
coordinated with our partners and landowners to implement needed
actions. Such special management or protection may include conservation
efforts to reduce or control nonnative invasive plants via prescribed
burning, mechanical, or chemical treatments, and to reduce deer
browsing through hunting/harvest or exclusion. In addition, special
management considerations related to developed areas that would benefit
the habitat in this unit include, but are not limited to, review of
County development plans and other projects considering land use
changes with recommendations to avoid areas occupied by Ocmulgee
skullcap. Special management or protection may also include habitat
restoration efforts.

Unit 5: Prescott Lakes

Unit 5 consists of 81 ac (33 ha) in the northern portion of Screven
County, Georgia. This unit is adjacent to the main stem of the Savannah
River and lies on lands in private ownership. Unit 5 is considered
occupied Ocmulgee skullcap. Unit 5 contains all of the physical or
biological features essential to the conservation of the species.
Special management considerations or protection may be required
within Unit 5 to alleviate impacts from stressors that have led to the
loss or degradation of the habitat, including land conversion to
agriculture and herbivory by deer. Such special management or
protection may include conservation efforts to reduce or control
nonnative invasive plants via prescribed burning, mechanical, or
chemical treatments, and to reduce deer browsing through hunting/
harvest or exclusion. Special management or protection may also include
habitat restoration efforts.

Unit 6: Bolingbroke Rest Area

Unit 6 consists of 338 ac (137 ha) in southern Monroe County,
Georgia. This unit falls on lands in private ownership adjacent to the
main stem of the Ocmulgee River, north of the city of Macon. Unit 6 is
considered occupied by Ocmulgee skullcap. Unit 6 contains all of the
physical or biological features essential to the conservation of the
species.
Special management considerations or protection may be required
within Unit 6 to alleviate impacts from stressors that have led to the
loss or degradation of the habitat, including commercial development,
silviculture and logging, road maintenance, and herbivory by deer. Such
special management or protection may include conservation efforts to
reduce or control nonnative invasive plants via prescribed burning,
mechanical, or chemical treatments, and to reduce deer browsing through
hunting/harvest or exclusion. Special management or protection may also
include implementation of best management practices in silviculture and
logging activities and habitat restoration efforts. In addition,
special management considerations related to developed areas that would
benefit the habitat in this unit include, but are not limited to review
of development plans and other projects considering land use changes.

Unit 7: River North Bluff

Unit 7 consists of 115 ac (46 ha) in the northern corner of Bibb
County, Georgia. This unit is adjacent to the Ocmulgee River, north of
the city of Macon. This unit contains land owned by the Georgia
Department of Natural Resources (10 ac (4 ha) on the Echeconnee
Wildlife Management Area), and lands in private ownership (105 ac (42
ha). This unit is adjacent to the main stem of the Ocmulgee River,
north of the city of Macon. Unit 7 is considered occupied by Ocmulgee
skullcap. Unit 7 contains all of the physical or biological features
essential to the conservation of the species.
Special management considerations or protection may be required
within Unit 7 to alleviate impacts from stressors that have led to the
degradation of the habitat, including competition and encroachment by
nonnative invasive species. In some cases, these threats are being
addressed or coordinated with our partners and

[[Page 37400]]

landowners to implement needed actions. Such special management or
protection may include conservation efforts to reduce or control
nonnative invasive plants via prescribed burning, mechanical, or
chemical treatments. Special management or protection may also include
habitat restoration efforts.

Unit 8: Savage Branch

Unit 8 consists of 115 ac (46 ha) in the northern portion of Bibb
County, Georgia. This unit is adjacent to the main stem of the Ocmulgee
River, north of the city of Macon, and falls on lands in private
ownership. Unit 8 is considered occupied by Ocmulgee skullcap. Unit 8
contains all of the physical or biological features essential to the
conservation of the species.
Special management considerations or protection may be required
within Unit 8 to alleviate impacts from stressors that have led to the
loss or degradation of the habitat, including urbanization and
development and nonnative invasive species. Such special management or
protection may include conservation efforts to reduce or control
nonnative invasive plants via prescribed burning, mechanical, or
chemical treatments. In addition, special management considerations
related to developed areas that would benefit the habitat in this unit
include, but are not limited to, review of County development plans and
other projects considering land use changes with recommendations to
avoid areas occupied by Ocmulgee skullcap. Special management or
protection may also include habitat restoration efforts.

Unit 9: Robins Air Force Base

Unit 9 consists of 455 ac (184 ha) in western Houston County,
Georgia. This unit is adjacent to the main stem of the Ocmulgee River.
This unit contains 231 ac (93 ha) in private ownership and 224 ac (91
ha) of Department of Defense (DoD)-owned lands that are covered under
the Robins Air Force Base INRMP, which are exempted from proposed
critical habitat designation (see Application of Section 4(a)(3) of the
Act under Exemptions, below), and, therefore, the total area proposed
for designation is 231 ac (93 ha). Unit 9 is considered occupied by
Ocmulgee skullcap. Unit 9 contains all of the physical or biological
features essential to the conservation of the species.
Special management considerations or protection may be required
within Unit 9 to alleviate impacts from stressors that have led to the
degradation of the habitat, including urbanization and development and
nonnative invasive species. Such special management or protection may
include conservation efforts to reduce or control nonnative invasive
plants via prescribed burning, mechanical, or chemical treatments. In
addition, special management considerations related to developed areas
that would benefit the habitat in this unit include, but are not
limited to, review of County development plans and other projects
considering land use changes with recommendations to avoid areas
occupied by Ocmulgee skullcap. Special management or protection may
also include habitat restoration efforts.

Unit 10: Trib Richland Creek

Unit 10 consists of 340 ac (138 ha) in eastern Twiggs County,
Georgia. This unit lies east of Robins Air Force Base and along a
tributary of the Ocmulgee River. The unit falls on lands leased by the
Georgia Department of Natural Resources (242 ac (98 ha) on the Ocmulgee
Wildlife Management Area), and lands in private ownership (98 acres (40
ha)). Unit 10 is considered occupied by Ocmulgee skullcap. Unit 10
contains all of the physical or biological features essential to the
conservation of the species.
Special management considerations or protection may be required
within Unit 10 to alleviate impacts from stressors that have led to the
loss or degradation of the habitat, including land conversion to
agriculture and herbivory by deer. In some cases, these threats are
being addressed or coordinated with our partners and landowners to
implement needed actions. Such special management or protection may
include conservation efforts to reduce deer browsing through hunting/
harvest or exclusion. Special management or protection related to land
conversion may also include consideration of Ocmulgee skullcap in
agriculture conversion plans and habitat restoration efforts in
affected field/forest edges.

Unit 11: Oaky Woods North

Unit 11 consists of 657 ac (266 ha) in western Houston County,
Georgia. This unit lies adjacent to the county line, along a tributary
of the Ocmulgee River. The unit falls on lands owned by the Georgia
Department of Natural Resources (228 ac (92 ha) on the Oaky Woods
Wildlife Management Area) and lands in private ownership (429 acres
(174 ha)). Unit 11 is considered occupied by Ocmulgee skullcap. Unit 11
contains all of the physical or biological features essential to the
conservation of the species.
Special management considerations or protection may be required
within Unit 11 to alleviate impacts from stressors that have led to the
degradation of the habitat, including limited effects of nonnative
invasive species and herbivory by deer. In some cases, these threats
are being addressed or coordinated with our partners and landowners to
implement needed actions. Such special management or protection may
include conservation efforts to reduce or control nonnative invasive
plants via prescribed burning, mechanical, or chemical treatments, and
to reduce deer browsing through hunting/harvest or exclusion. Special
management or protection may also include habitat restoration efforts.

Unit 12: Crooked Creek

Unit 12 consists of 205 ac (83 ha) in southeastern Twiggs County,
Georgia. This unit is located south of Highway 96, and along a
tributary of the Ocmulgee River. The unit falls on lands leased by the
Georgia Department of Natural Resources (201 ac (81 ha) on the Ocmulgee
Wildlife Management Area) and on lands in private ownership (4 ac (1.6
ha)). Unit 12 is considered occupied by Ocmulgee skullcap. Unit 12
contains all of the physical or biological features essential to the
conservation of the species.
Special management considerations or protection may be required
within Unit 12 to alleviate impacts from stressors that have led to the
degradation of the habitat, including nonnative invasive species and
herbivory by deer. In some cases, these threats are being addressed or
coordinated with our partners and landowners to implement needed
actions. Such special management or protection may include continued
conservation efforts to reduce deer browsing through hunting/harvest or
exclusion. Special management or protection may also include habitat
restoration efforts.

Unit 13: Shellstone Creek

Unit 13 consists of 160 ac (65 ha) in southeastern Twiggs County,
Georgia. This unit lies east of Unit 12, along a tributary of the
Ocmulgee River. The unit falls on lands leased by the Georgia
Department of Natural Resources (15 ac (6 ha) on the Ocmulgee Wildlife
Management Area) and on lands in private ownership (145 ac (59 ha)).
Unit 13 is considered occupied by Ocmulgee skullcap. Unit 13 contains
all of the physical or biological features essential to the
conservation of the species.
Special management considerations or protection may be required
within Unit 13 to alleviate impacts from stressors that have led to the
loss or

[[Page 37401]]

degradation of the habitat, including forest conversion to agriculture,
residential development, nonnative invasive species, and herbivory by
deer. In some cases, these threats are being addressed or coordinated
with our partners and landowners to implement needed actions. Such
special management or protection may include conservation efforts to
reduce or control nonnative invasive plants via prescribed burning,
mechanical, or chemical treatments, and to reduce deer browsing through
hunting/harvest or exclusion. Special management or protection related
to land conversion may also include consideration of Ocmulgee skullcap
in agriculture conversion plans and habitat restoration efforts in
affected field/forest edges. Special management or protection may also
include habitat restoration efforts.

Unit 14: Oaky Woods South

Unit 14 consists of 363 ac (145 ha) in western Houston County,
Georgia. This unit is west of units 15 and 16, and along a tributary of
the Ocmulgee River. This unit falls on lands leased by the Georgia
Department of Natural Resources (84 ac (34 ha) on the Oaky Woods
Wildlife Management Area), and on lands in private ownership (279 ac
(113 ha)). Unit 14 is considered occupied by Ocmulgee skullcap. Unit 14
contains all of the physical or biological features essential to the
conservation of the species.
Special management considerations or protection may be required
within Unit 14 to alleviate impacts from stressors that have led to the
loss or degradation of the habitat, including urbanization and
commercial development. In some cases, these threats are being
addressed or coordinated with our partners and landowners to implement
needed actions. Such special management or protection may include
considerations related to developed areas that would benefit the
habitat in this unit include, but are not limited to, review of County
development plans and other projects considering land use changes with
recommendations to avoid areas occupied by Ocmulgee skullcap. Special
management or protection may also include habitat restoration efforts.

Unit 15: Dry Creek

Unit 15 consists of 330 ac (133 ha) in western Houston and northern
Pulaski counties, Georgia. This unit is adjacent to the county line,
and along a tributary of the Ocmulgee River. This unit falls on lands
leased by the Georgia Department of Natural Resources (50 ac (20 ha) on
the Ocmulgee Wildlife Management Area), and lands in private ownership
(280 ac (113 ha)). Unit 15 is considered occupied by Ocmulgee skullcap.
Unit 15 contains all of the physical or biological features essential
to the conservation of the species.
Special management considerations or protection may be required
within Unit 15 to alleviate impacts from stressors that have led to the
degradation of the habitat, including nonnative invasive species and
herbivory by deer. In some cases, these threats are being addressed or
coordinated with our partners and landowners to implement needed
actions. Such special management or protection may include conservation
efforts to reduce or control nonnative invasive plants via prescribed
burning, mechanical, or chemical treatments, and to reduce deer
browsing through hunting/harvest or exclusion. Special management or
protection may also include habitat restoration efforts.

Unit 16: James Dykes Memorial

Unit 16 consists of 515 ac (208 ha) in eastern Bleckley County and
northern Pulaski County, Georgia. This unit is adjacent to the main
stem of the Ocmulgee River, west of the City of Cochran. This unit
falls on lands owned by the Georgia Department of Natural Resources
(497 ac (201 ha) on the Ocmulgee Wildlife Management Area), and on
lands in private ownership (18 ac (7 ha)). Unit 16 is considered
occupied by Ocmulgee skullcap. Unit 16 contains all of the physical or
biological features essential to the conservation of the species.
Special management considerations or protection may be required
within Unit 16 to alleviate impacts from stressors that have led to the
loss or degradation of the habitat, including land conversion to
agriculture, nonnative invasive species, and herbivory by deer. In some
cases, these threats are being addressed or coordinated with our
partners and landowners to implement needed actions. Such special
management or protection may include conservation efforts to reduce or
control nonnative invasive plants via prescribed burning, mechanical,
or chemical treatments and to reduce deer browsing through hunting/
harvest or exclusion. Special management or protection related to land
conversion may also include consideration of Ocmulgee skullcap in
agriculture conversion plans and habitat restoration efforts in
affected field/forest edges. Special management or protection may also
include habitat restoration efforts.

Unit 17: South Shellstone Creek

Unit 17 consists of 403 ac (163 ha) in eastern Bleckley County,
Georgia. This unit is adjacent to a tributary of the Ocmulgee River,
north of the City of Cochran. This unit falls on lands owned by the
Georgia Department of Natural Resources (4 ac (1.6 ha), and on lands in
private ownership (399 ac (161 ha)). Unit 17 is considered occupied by
Ocmulgee skullcap. Unit 17 contains all of the physical or biological
features essential to the conservation of the species.
Special management considerations or protection may be required
within Unit 17 to alleviate impacts from stressors that have led to the
loss or degradation of the habitat, including land conversion to
agriculture and other nonnative habitat. In some cases, these threats
are being addressed or coordinated with our partners and landowners to
implement needed actions. Special management or protection related to
land conversion may also include consideration of Ocmulgee skullcap in
agriculture conversion plans and habitat restoration efforts in
affected field/forest edges. Special management or protection may also
include habitat restoration efforts.

Unit 18: Jordan Creek

Unit 18 consists of 250 ac (101 ha) in northern Pulaski County,
Georgia. This unit is adjacent to a tributary of the Ocmulgee River,
north of the City of Hawkinsville. The unit falls on lands in private
ownership. Unit 18 is considered occupied by Ocmulgee skullcap. Unit 18
contains all of the physical or biological features essential to the
conservation of the species.
Special management considerations or protection may be required
within Unit 18 to alleviate impacts from stressors that have led to the
degradation of the habitat, including limited urbanization and
development. In addition, special management considerations related to
developed areas that would benefit the habitat in this unit include,
but are not limited to, review of County development plans and other
projects considering land use changes with recommendations to avoid
areas occupied by Ocmulgee skullcap. Special management or protection
may also include habitat restoration efforts.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of

[[Page 37402]]

any endangered species or threatened species or result in the
destruction or adverse modification of designated critical habitat of
such species. In addition, section 7(a)(4) of the Act requires Federal
agencies to confer with the Service on any agency action which is
likely to jeopardize the continued existence of any species proposed to
be listed under the Act or result in the destruction or adverse
modification of proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, Tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (1) if the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action.
In such situations, Federal agencies sometimes may need to request
reinitiation of consultation with us, but the regulations also specify
some exceptions to the requirement to reinitiate consultation on
specific land management plans after subsequently listing a new species
or designating new critical habitat. See the regulations for a
description of those exceptions.

Application of the ``Destruction or Adverse Modification'' Standard

The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat as a
whole for the conservation of the listed species. As discussed above,
the role of critical habitat is to support physical or biological
features essential to the conservation of a listed species and provide
for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that the Service may, during a consultation under
section 7(a)(2) of the Act, find are likely to destroy or adversely
modify critical habitat include, but are not limited to:
(1) Actions that would alter native vegetation structure or
composition within the hardwood forest habitat and diminish the
availability of shade or partial shade. Such activities could include,
but are not limited to, land conversion or clearing related to
residential, commercial, agricultural or recreational development,
including associated infrastructure, logging or removal of overstory
and midstory trees in the forest canopy, or introduction of nonnative
plant species. These activities could lead to loss, modification, or
fragmentation of the forest habitat and required canopy cover, thereby
eliminating or reducing the habitat necessary for the growth and
reproduction of the species.
(2) Actions that would alter the pH of the soil. Such activities
could include, but are not limited to, timber harvest activities,
particularly burning as site preparation or slash pile disposal, oil
and gas development and mining. These activities could result in
significant ground disturbance that could alter the chemical and
physical properties of the soil.
(3) Actions that would decrease the diversity and abundance of
floral resources and pollinators. Such activities could include, but
are not limited to, the use of pesticides and herbicides, livestock
grazing, and conversion of habitat to agricultural or silvicultural
land use. These activities could lead to direct mortality of
pollinators and diminish the floral resources available to pollinators.

Exemptions

Application of Section 4(a)(3) of the Act

The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the

[[Page 37403]]

conservation and management of natural resources to complete an INRMP
by November 17, 2001. An INRMP integrates implementation of the
military mission of the installation with stewardship of the natural
resources found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) provides that: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. We analyzed INRMPs
developed by military installations located within the range of the
proposed critical habitat designation for Ocmulgee skullcap to
determine if they meet the criteria for exemption from critical habitat
under section 4(a)(3) of the Act. The following areas are Department of
Defense (DoD) lands with completed, Service-approved INRMPs within the
proposed critical habitat designation.

Approved INRMP

Robins Air Force Base, 224 ac (91 ha)
Robins Air Force Base (AFB) has an approved INRMP. The U.S. Air
Force is committed to working closely with the Service, and the Georgia
Department of Natural Resources to continually refine the existing
INRMP as part of the Sike's Act INRMP review process.
Robins AFB completed an INRMP in 2017, which serves as the
principal management plan governing all natural resource activities on
the installation (Robins AFB INRMP 2017, entire). The 2017 INRMP
includes benefits for Ocmulgee skullcap through: (1) control or
elimination of competing, nonnative vegetation (mowing or hand clearing
during winter months when Ocmulgee skullcap is dormant); (2) limiting
recreational and other activities that may impact the species near
Ocmulgee skullcap locations; and, (3) promoting natural regeneration of
the dominant plant species in upland hardwood bluff forest communities.
Further, Robins AFB environmental staff review projects and enforce
existing regulations and orders that, through their implementation,
avoid and minimize impacts to natural resources, including Ocmulgee
skullcap and its habitat. In addition, Robins AFB INRMP provides
protection to forested habitat for Ocmulgee skullcap by implementing
forest management activities, designating stream and wetland protection
zones, and engaging in public outreach and education. Robins AFB INRMP
specifies periodic monitoring of the distribution and abundance of the
Ocmulgee skullcap populations on the base.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that the identified lands
are subject to the Robins AFB INRMP and that conservation efforts
identified in the INRMP will provide a benefit to Ocmulgee skullcap.
Therefore, lands within this installation are exempt from critical
habitat designation under section 4(a)(3)(B) of the Act. We are not
including approximately 224 ac (91 ha) of forested habitat on Robins
AFB in this proposed critical habitat designation because of this
exemption.

Consideration of Impacts Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. We describe below the process that we undertook for
taking into consideration each category of impacts and our analyses of
the relevant impacts.

Consideration of Economic Impacts

Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would

[[Page 37404]]

not be expected without the designation of critical habitat for the
species. In other words, the incremental costs are those attributable
solely to the designation of critical habitat, above and beyond the
baseline costs. These are the costs we use when evaluating the benefits
of inclusion and exclusion of particular areas from the final
designation of critical habitat should we choose to conduct a
discretionary 4(b)(2) exclusion analysis.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the Ocmulgee skullcap (Industrial Economics, Inc.
2020). We began by conducting a screening analysis of the proposed
designation of critical habitat in order to focus our analysis on the
key factors that are likely to result in incremental economic impacts.
The purpose of the screening analysis is to filter out particular
geographic areas of critical habitat that are already subject to such
protections and are, therefore, unlikely to incur incremental economic
impacts. In particular, the screening analysis considers baseline costs
(i.e., absent critical habitat designation) and includes any probable
incremental economic impacts where land and water use may already be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. Ultimately, the screening
analysis allows us to focus our analysis on evaluating the specific
areas or sectors that may incur probable incremental economic impacts
as a result of the designation. If the proposed critical habitat
designation contains any unoccupied units, the screening analysis
assesses whether those units require additional management or
conservation efforts that may incur incremental economic impacts. This
screening analysis, combined with the information contained in our IEM,
constitute what we consider to be our draft economic analysis (DEA) of
the proposed critical habitat designation for the Ocmulgee skullcap;
our DEA is summarized in the narrative below.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess, to the extent practicable,
the probable impacts to both directly and indirectly affected entities.
As part of our screening analysis, we considered the types of economic
activities that are likely to occur within the areas likely affected by
the critical habitat designation. In our evaluation of the probable
incremental economic impacts that may result from the proposed
designation of critical habitat for the Ocmulgee skullcap, first we
identified, in the IEM dated February 12, 2021, probable incremental
economic impacts associated with the following categories of
activities: (1) roadway and bridge maintenance, repair, and
construction; (2) agriculture; (3) recreation; (4) commercial or
residential development; and (5) State lands management (Georgia
Department of Natural Resources Wildlife Management Areas). We
considered each industry or category individually. Additionally, we
considered whether their activities have any Federal involvement.
Critical habitat designation generally will not affect activities that
do not have any Federal involvement; under the Act, designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. If we list the species, in areas
where the Ocmulgee skullcap is present, Federal agencies would be
required to consult with the Service under section 7 of the Act on
activities they fund, permit, or implement that may affect the species.
If, when we list the species, we also finalize this proposed critical
habitat designation, our consultations would include an evaluation of
measures to avoid the destruction or adverse modification of critical
habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
Ocmulgee skullcap's critical habitat. Because the designation of
critical habitat for Ocmulgee skullcap was proposed concurrently with
the listing, it has been our experience that it is more difficult to
discern which conservation efforts are attributable to the species
being listed and those which will result solely from the designation of
critical habitat. However, the following specific circumstances in this
case help to inform our evaluation: (1) The essential physical or
biological features identified for critical habitat are the same
features essential for the life requisites of the species, and (2) any
actions that would result in sufficient harm or harassment to
constitute jeopardy to the Ocmulgee skullcap would also likely
adversely affect the essential physical or biological features of
critical habitat. The IEM outlines our rationale concerning this
limited distinction between baseline conservation efforts and
incremental impacts of the designation of critical habitat for this
species. This evaluation of the incremental effects has been used as
the basis to evaluate the probable incremental economic impacts of this
proposed designation of critical habitat.
The proposed critical habitat designation for the Ocmulgee skullcap
totals approximately 6,577 ac (2,662 ha) in 10 Georgia counties and 2
South Carolina counties. We have divided the proposed critical habitat
into 18 units, with 1 unit divided into 3 subunits. All eighteen units
are considered occupied because they contain current (1999-2020)
occurrences of Ocmulgee skullcap. We are not proposing to designate any
units of unoccupied habitat. Approximately 15 percent of the proposed
designation is located on State-owned lands and 9 percent of the
proposed designation is located on State owned or managed lands (leased
lands in private ownership). Eighty-five percent of proposed lands are
privately owned (includes the nine percent with State management) and
no Federal lands are included in the proposed designation. Actions that
may affect the species or its habitat would also affect designated
critical habitat, and it is unlikely that any additional conservation
efforts would be recommended to address the adverse modification
standard over and above those recommended as necessary to avoid
jeopardizing the continued existence of the Ocmulgee skullcap.
Therefore, the potential incremental economic effects of the critical
habitat designation are expected to be limited to administrative costs
and minor costs of conservation efforts. Administrative costs include
the additional effort from the Service and the Federal action agency to
consider critical habitat for Ocmulgee skullcap in a section 7
consultation that already considers the presence of Ocmulgee skullcap.
The entities most likely to incur incremental costs are parties to
section 7 consultations, including Federal action agencies and, in some
cases, third parties, most frequently State agencies or municipalities.
Activities we expect

[[Page 37405]]

would be subject to consultations that may involve private entities as
third parties are residential and commercial development that may occur
on private lands. Our analysis of economic impacts makes the following
assumptions about consultation activity, most of which are more than
likely to overstate than understate potential impacts due to the
history of biological assessments and implementation of project
conservation measures by the Federal action agencies. The analysis
assumes that approximately 73 section 7 consultations (approximately
one formal consultation, two informal consultations, and 70 technical
assistance efforts including species lists) will occur annually in the
proposed critical habitat areas, based on the previous consultation
history in the area. The annual costs to the Service and other action
agencies are estimated at approximately $39,700. Units 1, 3, 4, and 7
are projected to have the highest number of consultations with six or
more per unit.
The probable incremental economic impacts of the Ocmulgee skullcap
proposed critical habitat designation are expected to be limited to
additional administrative effort and minor costs of conservation
efforts resulting from a small number of future section 7 consultations
(Industrial Economics, Inc. 2020). This is due to two factors: (1) All
proposed critical habitat areas are considered to be occupied by the
species, and incremental economic impacts of critical habitat
designation, other than administrative costs and minor costs of
conservation efforts, are unlikely; and (2) few actions are anticipated
that would result in section 7 consultation or associated project
modifications. At approximately $10,000 per formal programmatic
consultation, the burden resulting from the designation of critical
habitat for Ocmulgee skullcap, based on the anticipated annual number
of consultations and associated consultation costs, is not expected to
exceed $39,700 in most years (Industrial Economics, Inc. 2020). The
designation is unlikely to trigger additional requirements under State
or local regulations. Thus, the annual administrative burden is
relatively low.
In our DEA, we did not identify any ongoing or future actions that
would warrant additional recommendations or project modifications to
avoid adversely modifying critical habitat above those we would
recommend for avoiding jeopardy to the species, and we anticipate
minimal change in management at Georgia Department of Natural Resource
wildlife management areas due to the designation of critical habitat
for Ocmulgee skullcap.
We are soliciting data and comments from the public on the DEA
discussed above, as well as all aspects of this proposed rule and our
required determinations. During the development of a final designation,
we will consider the information presented in the DEA and any
additional information on economic impacts we receive during the public
comment period to determine whether any specific areas should be
excluded from the final critical habitat designation under authority of
section 4(b)(2) and our implementing regulations at 50 CFR 17.90. If we
receive credible information regarding the existence of a meaningful
economic or other relevant impact supporting a benefit of exclusion, we
will conduct an exclusion analysis for the relevant area or areas. We
may also exercise the discretion to evaluate any other particular areas
for possible exclusion. Furthermore, when we conduct an exclusion
analysis based on impacts identified by experts in, or sources with
firsthand knowledge about, impacts that are outside the scope of the
Service's expertise, we will give weight to those impacts consistent
with the expert or firsthand information unless we have rebutting
information. We may exclude an area from critical habitat if we
determine that the benefits of excluding the area outweigh the benefits
of including the area, provided the exclusion will not result in the
extinction of this species.

Consideration of National Security Impacts

Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
credible information, including a reasonably specific justification of
an incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
Under section 4(b)(2) of the Act, we also consider whether a
national security or homeland security impact might exist on lands
owned or managed by DoD or DHS. In preparing this proposal, we have
determined that, other than the land exempted under section
4(a)(3)(B)(i) of the Act based upon the existence of an approved INRMP
(see Exemptions, above), the lands within the proposed designation of
critical habitat for Ocmulgee skullcap are not owned or managed by DoD
or DHS. Therefore, we anticipate no impact on national security or
homeland security. However, if through the public comment period we
receive

[[Page 37406]]

credible information regarding impacts on national security or homeland
security from designating particular areas as critical habitat, then as
part of developing the final designation of critical habitat, we will
conduct a discretionary exclusion analysis to determine whether to
exclude those areas under authority of section 4(b)(2) and our
implementing regulations at 50 CFR 17.90.

Consideration of Other Relevant Impacts

Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security discussed above. Other relevant impacts may include, but are
not limited to, impacts to Tribes, States, local governments, public
health and safety, community interests, the environment (such as
increased risk of wildfire or pest and invasive species management),
Federal lands, and conservation plans, agreements, or partnerships. To
identify other relevant impacts that may affect the exclusion analysis,
we consider a number of factors, including whether there are permitted
conservation plans covering the species in the area--such as HCPs, safe
harbor agreements (SHAs), or candidate conservation agreements with
assurances (CCAAs)--or whether there are non-permitted conservation
agreements and partnerships that may be impaired by designation of, or
exclusion from, critical habitat. In addition, we look at whether
Tribal conservation plans or partnerships, Tribal resources, or
government-to-government relationships of the United States with Tribal
entities may be affected by the designation. We also consider any
State, local, public-health, community-interest, environmental, or
social impacts that might occur because of the designation.
We have not identified any areas to consider for exclusion from
critical habitat based on other relevant impacts. In preparing this
proposal, we have determined that there are currently no permitted
conservation plans or other management plans for Ocmulgee skullcap. We
are not aware of any partnerships, management, or protection afforded
by cooperative management efforts that provide for the conservation of
the species. We have determined that no Tribal lands fall within the
boundaries of the proposed critical habitat for the Ocmulgee skullcap.
There are no areas for which exclusion would result in conservation, or
in the continuation, strengthening, or encouragement of partnerships.
However, during the development of a final designation, we will
consider all information currently available or received during the
public comment period. If we receive credible information regarding the
existence of a meaningful impact supporting a benefit of excluding any
areas, we will undertake an exclusion analysis and determine whether
those areas should be excluded from the final critical habitat
designation under the authority of section 4(b)(2) and our implementing
regulations at 50 CFR 17.90. We may also exercise the discretion to
undertake exclusion analyses for other areas as well, and we will
describe all of our exclusion analyses as part of a final critical
habitat determination.

Summary of Exclusions Considered Under 4(b)(2) of the Act

At this time, we are not considering any exclusions from the
proposed designation based on economic impacts, national security
impacts, or other relevant impacts--such as partnerships, management,
or protection afforded by cooperative management efforts--under section
4(b)(2) of the Act. In this proposed rule, we are seeking credible
information from the public regarding the existence of a meaningful
impact supporting a benefit of excluding any areas that would be used
in an exclusion analysis that may result in the exclusion of areas from
the final critical habitat designation. (Please see FOR FURTHER
INFORMATION CONTACT for instructions on how to submit comments).

Required Determinations

Clarity of the Rule

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

Regulatory Planning and Review (Executive Orders 12866 and 13563)

Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.

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

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses

[[Page 37407]]

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. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation will not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. In our economic analysis, we did not find that this
proposed critical habitat designation would significantly affect energy
supplies, distribution, or use. We did not find that designation of
this proposed critical habitat will have an annual effect on the
economy of $100 million or more or significantly affect energy
supplies, distribution, or use due to the lack of any energy supply or
distribution lines within the proposed critical habitat designation.
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
et seq.), we make the following finding:
(1) This proposed rule would 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, or
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; Aid to Families
with Dependent Children 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 that receive
Federal funding, assistance, or permits, or that 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 onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments. The lands being proposed for
critical habitat designation are owned by Richmond County and the State
of Georgia. Neither of these governments fits the definition of ``small
governmental jurisdiction'', nor does the designation of critical
habitat impose an obligation on State or local governments. Small
governments will be affected only to the extent that any programs
having Federal funds, permits, or other authorized activities must
ensure that their actions will not adversely affect the critical
habitat. Therefore, a Small Government Agency Plan is not required.

Takings--Executive Order 12630

In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for Ocmulgee skullcap in a takings implications assessment. The
Act does not authorize the Service to regulate private actions

[[Page 37408]]

on private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
proposed designation of critical habitat for Ocmulgee skullcap, and it
concludes that, if adopted, this designation of critical habitat does
not pose significant takings implications for lands within or affected
by the designation.

Federalism--Executive Order 13132

In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement is not required. In keeping with Department of the Interior
and Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with, appropriate State resource agencies. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
for case-by-case section 7 consultations to occur.
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) of the Act would be required. While
non-Federal entities that receive Federal funding, assistance, or
permits, or that 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.

Civil Justice Reform--Executive Order 12988

In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule would not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the Act. To assist the public in
understanding the habitat needs of the species, this proposed rule
identifies the physical or biological features essential to the
conservation of the species. The proposed areas of designated critical
habitat are presented on maps, and the proposed rule provides several
options for the interested public to obtain more detailed location
information, if desired.

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

This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.

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

It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to the National Environmental Policy
Act (NEPA; 42 U.S.C. 4321 et seq.) 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). This position was upheld by the U.S.
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

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 (Consultation and
Coordination with Indian Tribal Governments), 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. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have coordinated with the Catawba
Tribe regarding the SSA that informed this proposed listing
determination and critical habitat designation and provided the Tribe
with an opportunity to review the SSA report. We have determined that
no Tribal lands fall within the boundaries of the proposed critical
habitat for the Ocmulgee skullcap, so no Tribal lands would be affected
by the proposed designation.

References Cited

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

Authors

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

[[Page 37409]]

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. In Sec. 17.12 in paragraph (h) amend the table by adding an entry
for ``Scutellaria ocmulgee'' to the List of Endangered and Threatened
Plants in alphabetical order under FLOWERING PLANTS to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Scientific name Common name Where listed Status Listing citations and applicable rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
Scutellaria ocmulgee................ Ocmulgee skullcap...... Wherever found......... T [Federal Register citation when published as a
final rule]; 50 CFR 17.73(m); \4d\ 50 CFR
17.96(a).\CH\

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

0
3. Amend Sec. 17.73 by adding paragraphs (c) through (m) to read as
follows:

Sec. 17.73 Special rules--flowering plants.

* * * * *
(c) through (l) [Reserved]
(m) Scutellaria ocmulgee (Ocmulgee skullcap).
(1) Prohibitions. The following prohibitions that apply to
endangered plants also apply to Ocmulgee skullcap. Except as provided
under paragraph (m)(2) of this section, it is unlawful for any person
subject to the jurisdiction of the United States to commit, to attempt
to commit, to solicit another to commit, or cause to be committed, any
of the following acts in regard to this species:
(i) Import or export, as set forth at Sec. 17.61(b) for endangered
plants.
(ii) Remove and reduce to possession the species from areas under
Federal jurisdiction; maliciously damage or destroy the species on any
such area; or remove, cut, dig up, or damage or destroy the species on
any other area in knowing violation of any law or regulation of any
State or in the course of any violation of a State criminal trespass
law.
(iii) Engage in interstate or foreign commerce in the course of
commercial activity, as set forth at Sec. 17.61(d) for endangered
plants.
(iv) Sale or offer for sale, as set forth at Sec. 17.61(e) for
endangered plants.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by permit under Sec. 17.72.
(ii) Remove and reduce to possession from areas under Federal
jurisdiction, as set forth at Sec. 17.71(b) for threatened plants.
(iii) Engage in any act prohibited under paragraph (m)(1) of this
section with seeds of cultivated specimens, provided that a statement
that the seeds are of ``cultivated origin'' accompanies the seeds or
their container.
0
4. Amend Sec. 17.96(a) by adding an entry for ``Family Lamiaceae:
Scutellaria ocmulgee (Ocmulgee skullcap)'', immediately after the entry
for ``Family Lamiaceae: Monardella viminea (willowy monardella)'', to
read as follows:

Sec. 17.96 Critical habitat--plants.

(a) Flowering plants.
* * * * *
Family Lamiaceae: Scutellaria ocmulgee (Ocmulgee skullcap)
(1) Critical habitat units are depicted for Bibb, Bleckley, Burke,
Columbia, Houston, Monroe, Pulaski, Richmond, Screven, and Twiggs
Counties in Georgia and Aiken and Edgefield Counties in South Carolina,
on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of Ocmulgee skullcap consist of the
following components:
(i) River bluffs with steep and/or shallow soils that are subject
to localized disturbances that limit the accumulation of leaf litter
and competition within the Upper Gulf Coastal Plain and Piedmont of
Georgia.
(ii) Well-drained soils that are buffered or circumneutral (pH
between 6.5 and 7.5) generally within regions underlain or otherwise
influenced by limestone or marl.
(iii) A mature, mixed-level canopy with spatial heterogeneity,
providing mottled shade and often including with a rich diversity of
grasses and forbs characterizing the herb layer.
(iv) Intact forested habitat that is fully functional (i.e., with
mature canopy and discrete disturbances) and buffered by surrounding
habitat to impede the invasion of competitors.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Data layers defining map units were created using ArcMap
version 10.6 (Environmental Systems Research Institute, Inc.), a
geographic information systems program on a base of USA Topo Maps.
Critical habitat units were then mapped using NAD 1983, Universal
Transverse Mercator (UTM) Zone 17N coordinates. The maps in this entry,
as modified by any accompanying regulatory text, establish the
boundaries of the critical habitat designation. The coordinates or plot
points or both on which each map is based are available to the public
at the Service's internet site at https://www.fws.gov/office/georgia-ecological-services/library, at https://www.regulations.gov at Docket
No. FWS-R4-ES-2021-0059, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Note: Index map follows:
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[[Page 37410]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.001

(6) Unit 1: Columbia/Richmond, Columbia and Richmond Counties,
Georgia, and Aiken and Edgefield Counties, South Carolina.
(i) Unit 1 includes 3 subunits and consists of 557 ac (225 ha) in
Columbia and Richmond Counties, Georgia, and Aiken and Edgefield
Counties, South Carolina, including county-owned lands (28 ac (11 ha))
and lands in private ownership (529 ac (214 ha)).
(ii) Map of Unit 1 follows:

[[Page 37411]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.002

(7) Unit 2: Barney Bluff, Richmond County, Georgia.
(i) Unit 2 consists of 415 ac (168 ha) in Richmond County, Georgia,
and is composed of lands in private ownership.
(ii) Map of Unit 2 follows:

[[Page 37412]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.003

(8) Unit 3: Burke North; Burke County, Georgia.
(i) Unit 3 consists of 526 ac (213 ha) in Burke County, Georgia,
and is composed of lands in private ownership.
(ii) Map of Unit 3 follows:

[[Page 37413]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.004

(9) Unit 4: Burke South, Burke County, Georgia.
(i) Unit 4 consists of 976 ac (395 ha) in Burke County, Georgia,
and is composed of lands in State (199 ac (80 ha)) and private (777 ac
(314 ha)) ownership.
(ii) Map of Unit 4 follows:

[[Page 37414]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.005

(10) Unit 5: Prescott Lakes, Screven County, Georgia.
(i) Unit 5 consists of 81 ac (33 ha) in Screven County, Georgia,
and is composed of lands in private ownership.
(ii) Map of Unit 5 follows:

[[Page 37415]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.006

(11) Unit 6: Bolingbroke Rest Area, Monroe County, Georgia.
(i) Unit 6 consists of 338 ac (137 ha) in Monroe County, Georgia,
and is composed of lands in private ownership.
(ii) Map of Unit 6 follows:

[[Page 37416]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.007

(12) Unit 7: River North Bluff, Bibb County, Georgia.
(i) Unit 7 consists of 115 ac (46 ha) in Bibb County, Georgia, and
is composed of lands in State (10 ac (4 ha)) and private (105 ac (42
ha)) ownership.
(ii) Map of Unit 7 follows:

[[Page 37417]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.008

(13) Unit 8: Savage Branch, Bibb County, Georgia.
(i) Unit 8 consists of 115 ac (46 ha) in Bibb County, Georgia, and
is composed of lands in private ownership.
(ii) Map of Unit 8 follows:

[[Page 37418]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.009

(14) Unit 9: Robins Air Force Base, Houston County, Georgia.
(i) Unit 9 consists of 231 ac (93 ha) in Houston County, Georgia,
and is composed of lands in private ownership.
(ii) Map of Unit 9 follows:

[[Page 37419]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.010

(15) Unit 10: Trib Richland Creek, Twiggs County, Georgia.
(i) Unit 10 consists of 340 ac (138 ha) in Twiggs County, Georgia,
and is composed of lands in State (242 ac (98 ha)) and private (98 ac
(40 ha)) ownership.
(ii) Map of Unit 10 follows:

[[Page 37420]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.011

(16) Unit 11: Oaky Woods North, Houston County, Georgia.
(i) Unit 11 consists of 657 ac (266 ha) in Houston County, Georgia,
and is composed of lands in State (228 ac (92 ha)) and private (429 ac
(174 ha)) ownership.
(ii) Map of Unit 11 follows:

[[Page 37421]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.012

(17) Unit 12: Crooked Creek, Twiggs County, Georgia.
(i) Unit 12 consists of 205 ac (83 ha) in Twiggs County, Georgia,
and is composed of lands in State (201 ac (81 ha)) and private (4 ac
(1.6 ha)) ownership.
(ii) Map of Unit 12 follows:

[[Page 37422]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.013

(18) Unit 13: Shellstone Creek, Twiggs County, Georgia.
(i) Unit 13 consists of 160 ac (65 ha) in Twiggs County, Georgia,
and is composed of lands in State (15 ac (6 ha)) and private (145 ac
(59 ha)) ownership.
(ii) Map of Unit 13 follows:

[[Page 37423]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.014

(19) Unit 14: Oaky Woods South, Houston County, Georgia.
(i) Unit 14 consists of 363 ac (147 ha) in Houston County, Georgia,
and is composed of lands in State (84 ac (34 ha)) and private (279 ac
(113 ha)) ownership.
(ii) Map of Unit 14 follows:

[[Page 37424]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.015

(20) Unit 15: Dry Creek, Houston and Pulaski Counties, Georgia.
(i) Unit 15 consists of 330 ac (133 ha) in Houston and Pulaski
Counties, Georgia, and is composed of lands in State (50 ac (20 ha))
and private (280 ac (113 ha)) ownership.
(ii) Map of Unit 15 follows:

[[Page 37425]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.016

(21) Unit 16: James Dykes Memorial, Bleckley and Pulaski counties,
Georgia.
(i) Unit 16 consists of 515 ac (208 ha) in Bleckley and Pulaski
Counties, Georgia, and is composed of lands in State (497 ac (201 ha))
and private (18 ac (7.3 ha)) ownership.
(ii) Map of Unit 16 follows:

[[Page 37426]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.017

(22) Unit 17: South Shellstone Creek, Bleckley County, Georgia.
(i) Unit 17 consists of 403 ac (163 ha) in Bleckley County,
Georgia, and is composed of lands in State (4 ac (1.6 ha)) and private
(399 ac (161 ha)) ownership.
(ii) Map of Unit 17 follows:

[[Page 37427]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.018

(23) Unit 18: Jordan Creek, Pulaski County, Georgia.
(i) Unit 18 consists of 250 ac (101 ha) in Pulaski County, Georgia,
and is composed of lands in private ownership.
(ii) Map of Unit 18 follows:

[[Page 37428]]

[GRAPHIC] [TIFF OMITTED] TP22JN22.019

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-12824 Filed 6-21-22; 8:45 am]
BILLING CODE 4333-15-C