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DoD published proposed amendments U.S.C. 2371 for prototype projects critical habitat. The regulatory effect of to the ‘‘Other Transactions’’ regulations when— the critical habitat designation does not at 32 CFR part 3 on May 20, 2003 (68 (1) The other transaction agreement extend beyond those activities funded, FR 27497), to implement Section 822. includes provisions for a follow-on permitted, or carried out by Federal This proposed DFARS rule provides the production contract; agencies. State or private actions with corresponding exemption from (2) The contracting officer receives no Federal involvement are not affected. competition requirements for follow-on sufficient information from the Section 4 of the Act requires us to production contracts awarded under the agreements officer and the project consider the economic and other authority of Section 822. manager for the prototype other relevant impacts of specifying any area This rule was not subject to Office of transaction agreement, which as critical habitat. We hereby solicit data Management and Budget review under documents that the conditions set forth and comments from the public on all Executive Order 12866, dated in 10 U.S.C. 2371 note, subsections aspects of this proposal, including data September 30, 1993. (f)(2)(A) and (B) (see 32 CFR 3.9(c)), on the economic and other impacts of the designation. We have conducted an B. Regulatory Flexibility Act have been met; and (3) The contracting officer establishes analysis of the economic impacts of DoD does not expect this rule to have quantities and prices for the follow-on designating these areas as critical a significant economic impact on a production contract that do not exceed habitat and are announcing its substantial number of small entities the quantities and target prices availability for public review. That within the meaning of the Regulatory established in the other transaction economic analysis has been conducted Flexibility Act, 5 U.S.C. 601, et seq., agreement. in a manner that is consistent with the because the rule applies only to ruling of the 10th Circuit Court of [FR Doc. 03–13536 Filed 6–2–03; 8:45 am] production contracts for DoD weapons Appeals in N.M. Cattle Growers Ass’n v. and weapon systems. Such contracts BILLING CODE 5001–08–P USFWS. typically are not awarded to small DATES: We will consider comments business concerns. Therefore, DoD has received by August 4, 2003. We must DEPARTMENT OF THE INTERIOR not performed an initial regulatory receive requests for public hearings, in flexibility analysis. DoD invites Fish and Wildlife Service writing, at the address shown in the comments from small businesses and ADDRESSES section by July 18, 2003. other interested parties. DoD also will ADDRESSES: If you wish to comment on consider comments from small entities 50 CFR Part 17 this proposed rule and/or the draft concerning the affected DFARS subpart RIN 1018–AI74 economic analysis, you may submit in accordance with 5 U.S.C. 610. Such your comments by any one of several comments should be submitted Endangered and Threatened Wildlife methods: separately and should cite DFARS Case and Plants; Designation of Critical 1. You may submit written comments 2002–D023. Habitat for Arabis perstellata (Braun’s Rock-cress) and information to the Field Supervisor, C. Paperwork Reduction Act U.S. Fish and Wildlife Service, 446 Neal The Paperwork Reduction Act does AGENCY: Fish and Wildlife Service, Street, Cookeville, TN 38501. not apply because the rule does not Interior. 2. You may hand-deliver written impose any information collection ACTION: Proposed rule and notice of comments to our Tennessee Field Office requirements that require the approval document availability. at the above address or fax your of the Office of Management and Budget comments to 931/528–7075. under 44 U.S.C. 3501, et seq. SUMMARY: We, the Fish and Wildlife 3. You may send comments by Service (Service), determine that critical electronic mail (e-mail) to List of Subjects in 48 CFR Part 206 habitat is prudent and propose to [email protected]. For directions Government procurement. designate critical habitat for the Arabis on how to submit electronic filing of perstellata (Braun’s rock-cress), an comments, see the ‘‘Public Comments Michele P. Peterson, endangered species listed under the Solicited’’ section. Executive Editor, Defense Acquisition Endangered Species Act of 1973, as FOR FURTHER INFORMATION CONTACT: Regulations Council. amended (Act). We propose 20 specific Timothy Merritt at the above address Therefore, DoD proposes to amend 48 geographic areas (units) in Kentucky (17 (telephone 931/528–6481, extension CFR part 206 as follows: units) and Tennessee (3 units) as critical 211; facsimile 931/528–7075). 1. The authority citation for 48 CFR habitat for Arabis perstellata. These SUPPLEMENTARY INFORMATION: part 206 continues to read as follows: units encompass approximately 408 Authority: 41 U.S.C. 421 and 48 CFR hectares (ha) (1,008 acres (ac)). Public Comments Solicited Chapter 1. Kentucky has approximately 328 ha We intend that any final action (810 ac) and Tennessee has resulting from this proposal be as PART 206—COMPETITION approximately 80 ha (198 ac) proposed accurate and as effective as possible. REQUIREMENTS as critical habitat for Arabis perstellata. Therefore, we solicit comments or 2. Section 206.001 is amended by Critical habitat identifies specific suggestions from the public, other adding, after paragraph (b), a new areas that are essential to the concerned governmental agencies, the paragraph (S–70) to read as follows: conservation of a listed species, and that scientific community, industry, or any may require special management other interested party concerning this 206.001 Applicability. considerations or protection. If this proposed rule and its associated draft * * * * * proposal is made final, section 7(a)(2) of economic analysis. We are particularly (S–70) Also excepted from this part the Act requires that Federal agencies interested in comments concerning: are follow-on production contracts for ensure that actions they fund, permit, or (1) The reasons why any habitat products developed pursuant to the carry out are not likely to result in the should or should not be determined to ‘‘other transactions’’ authority of 10 destruction or adverse modification of be critical habitat as provided by section

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4 of the Act, including whether the this request prominently at the stalks are about 1 cm (0.4 in) long at benefits of designation will outweigh beginning of your comment. However, maturity; the fruits are up to 4 cm (1.6 any threats to the species resulting from we will not consider anonymous in) long and are covered with both designation; comments. To the extent consistent with simple and starlike hairs. Flowering (2) Specific information on the applicable law, we will make all occurs from late March to early May. amount and distribution of Arabis submissions from organizations or Fruits mature from mid-May to early perstellata and its habitat, and which businesses, and from individuals June. The oblong seeds are reddish habitat is essential to the conservation identifying themselves as brown, somewhat flattened, about 1 mm of this species and why; representatives or officials of (0.04 in) long, and in places minutely (3) Land use designations and current organizations or businesses, available hairy (Jones 1991). Plants are reported to or planned activities in the subject areas for public inspection in their entirety. live up to 5 years (Jones 1991). and their possible impacts on proposed Comments and materials received will Although varieties of this species are critical habitat; be available for public inspection, by not recognized in recent taxonomic (4) Any foreseeable economic or other appointment, during normal business treatments (Rollins 1993), in the past, impacts resulting from the proposed hours at the Ecological Services Office two varieties were distinguished based designation of critical habitat, in in Cookeville, Tennessee (see on size and degree of pubescence particular, any impacts on small entities ADDRESSES). (Rollins 1960). The formerly recognized or families; Copies of the proposed rule, draft varieties are also geographically (5) Economic and other values economic analysis, and information separated, with the larger variety associated with designating critical regarding this proposed critical habitat (Arabis perstellata var. ampla) occurring habitat for Arabis perstellata such as designation are available on the Internet in Tennessee and the smaller variety those derived from nonconsumptive at http://cookeville.fws.gov. (Arabis perstellata var. perstellata) uses (e.g., hiking, camping, occurring in Kentucky (Rollins 1993; Background birdwatching, enhanced watershed Kentucky State Nature Preserves protection, improved air quality, Arabis perstellata (Braun’s rock-cress) Commission (KSNPC) 1996a). While the increased soil retention, ‘‘existence is a perennial herb of the mustard final rule for the determination of values,’’ and reductions in family (Brassicaceae). It was originally endangered status for this species administrative costs); described by E. Lucy Braun (1940) from recognized the two varieties, these two (6) Whether our approach to critical specimens collected between 1936 and varieties are no longer recognized by the habitat designation could be improved 1939 in Franklin County, Kentucky. In scientific community. Consequently, we or modified in any way to provide for 1956, Braun described the growth habits will treat the plants that occur in both greater public participation and of Arabis perstellata. This species has geographically separated areas as one understanding, or to assist us in round stems and alternate leaves. The species (Arabis perstellata) for the accommodating public concern and stems and foliage have a grayish purpose of designating critical habitat. comments; and coloration due to the large quantity of Arabis perstellata is presently known (7) The inclusion into final critical hairs. The stems arise from horizontal from 41 populations in two separate habitat of the two recently identified bases and grow up to 80 centimeters sections of the Interior Low Plateaus populations of Arabis perstellata, and (cm) (31.5 inches (in)) long, often Physiographic Province—the Blue Grass any foreseeable economic or other drooping from rock ledges. Each year, a Section (Kentucky) and the Central impacts resulting from including the circular cluster of leaves radiating from Basin Section (Tennessee). Both areas areas encompassing these two new the center is produced close to the where this species is found are populations into designated critical ground, and new flowering branches predominantly underlain by sediments habitat. emerge from the old cluster of the of Ordovician age (510–438 million If you wish to comment on this previous season. The lower leaves vary years ago) (Quarterman and Powell proposed rule and/or the draft economic from 4 to 15 cm (1.6 to 6.0 in) long and 1978). The Kentucky populations occur analysis, you may submit your are obovate (egg-shaped) to lanceolate in Franklin, Henry, and Owen Counties comments and materials concerning this (lance-shaped), with the broad end at along the Kentucky River and its proposal and its associated draft the top. The lower leaves also have tributaries (primarily Elkhorn Creek). economic analysis by any one of several slightly toothed margins and are cut to The Tennessee populations occur in methods (see ADDRESSES). Comments the midrib. The upper leaves are Davidson and Rutherford counties, submitted electronically should be in smaller—up to 3.5 cm (1.4 in) long—and principally along the Stones River, but the body of the e-mail message itself or have relatively rounded ends that are also along the Cumberland River several attached as a text file (ASCII), and widest at or about the middle, but then miles downstream of the Stones River should not use special characters or taper to a lance shape, with the broad confluence. encryption. Please also include ‘‘Attn: end at the top. The upper leaves also Arabis perstellata occurs on slopes Braun’s rock-cress,’’ your full name, and have coarse teeth along their margins. composed of calcium carbonate, your return address in your e-mail Both surfaces of the leaves are covered calcium, or limestone in moderately message. Our practice is to make in starlike hairs. The flowering section moist to almost dry forests. The comments, including names and home of the plant is elongated, with numerous occurrence of this species does not addresses of respondents, available for stalked flowers. The flowers have four appear to be limited to a particular public review during regular business petals that are 3 to 4 millimeters (mm) slope, aspect, elevation, or moisture hours. Respondents may request that we (0.12 to 0.16 in) long, are white to regime within the slope forests. The withhold their home address, which we lavender, and have four pale green plants survive in full shade or filtered will honor to the extent allowable by sepals that are 2 to 3 mm (0.08 to 0.12 light, but are not found in full sunlight law. There also may be circumstances in in) long. There are six stamens, with (Jones 1991). The largest and most which we would withhold a two shorter than the other four. The vigorous populations occur on moist respondent’s identity, as allowable by ovary is elongate and two-chambered, mid- to upper-slope sites. Plants are law. If you wish for us to withhold your and develops into an elongated fruit, often found around rock outcrops, in name and/or address, you must state much longer than it is broad. Fruiting protected sites on the downslope side of

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

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1996a). Four historical populations in judicial opinions on critical habitat consultations, the section 4 recovery Tennessee are presumed extirpated designation and the standards placed on planning process, the section 9 (Jones 1991; Tennessee Department of us for making a prudency protective prohibitions of unauthorized Environment and Conservation (TDEC) determination. If additional information take, section 6 funding to the States, and 2000). becomes available on the species’ the section 10 incidental take permit biology and distribution, and on threats process. We believe that it is these Previous Federal Action to the species, we may reevaluate this measures that may make the difference Federal government actions on this proposal to designate critical habitat, between extinction and survival for species began with passage of section 12 including proposing additional critical many species. of the Endangered Species Act of 1973 habitat, proposing the deletion or Procedural and Resource Difficulties in (16 U.S.C. 1531 et seq.). Please refer to boundary refinement of existing Designating Critical Habitat the final listing rule for a complete proposed critical habitat, or description of Federal actions withdrawing our proposal to designate With a budget consistently inadequate concerning this species between the critical habitat. to fund all of the petition review, listing inception of the Act and the proposed determinations, and critical habitat listing rule in 1994. Critical Habitat Disclaimer designation duties required of us by On January 3, 1994, we published a Designation of critical habitat statute, we have in the past prioritized rule in the Federal Register (59 FR 53) provides little additional protection to our efforts and focused our limited proposing to list Arabis perstellata species. In 30 years of implementing the resources on adding species in need of (inclusive of the two varieties, Arabis Act, we have found that the designation protection to the lists of threatened or perstellata var. ampla and Arabis of statutory critical habitat provides endangered species. We have been perstellata var. perstellata) as little additional protection to most listed inundated with lawsuits for our failure endangered. In that proposed rule, we species, while consuming significant to designate critical habitat, and we face had made a determination that amounts of scarce conservation a growing number of lawsuits designation of critical habitat was not resources. The present system for challenging critical habitat designations prudent because such a designation designating critical habitat has evolved once they are made. These lawsuits would not be beneficial to the species, since its original statutory prescription have subjected us to an ever-increasing but rather could further threaten the into a process that provides little real series of court orders and court- species. On January 3, 1995 (60 FR 56), conservation benefit, is driven by approved settlement agreements, we published our final rule to list litigation rather than biology, forces compliance with which now consumes Arabis perstellata as endangered. In the decisions to be made before complete nearly the entire listing program budget. final rule, consistent with our scientific information is available, This leaves us with little ability to determination in the proposed rule, we consumes enormous agency resources prioritize our activities to direct scarce found that a critical habitat designation that would otherwise be applied to listing resources to the listing program was not prudent. actions of much greater conservation actions with the most biologically On July 22, 1997, we finalized the benefit, and may impose large social urgent species conservation needs. Arabis perstellata Recovery Plan and economic costs. We believe that The consequence of the critical (Service 1997). The recovery plan rational public policy demands serious habitat litigation activity is that limited established the criteria that must be met attention to this issue in order to allow listing funds are used to defend active prior to the delisting of Arabis our limited resources to be applied to lawsuits, to respond to Notices of Intent perstellata. The recovery plan also those actions that provide the greatest (NOIs) to sue relative to critical habitat, identified the actions that are needed to benefit to the species most in need of and to comply with the growing number assist in the recovery of Arabis protection. of adverse court orders. As a result, perstellata. listing petition responses, our own On October 12, 2000, the Southern Role of Critical Habitat in Actual proposals to list critically imperiled Appalachian Biodiversity Project filed Practice of Administering and species, and final listing determinations suit against us, challenging our not Implementing the Act on existing proposals are significantly prudent critical habitat determinations While attention to and protection of delayed. Litigation over critical habitat for Arabis perstellata and 15 other habitat is paramount to successful issues for species already listed and federally listed species (Southern conservation actions, we have receiving the Act’s full protection has Appalachian Biodiversity Project v. U.S. consistently found that, in most precluded or delayed many listing Fish and Wildlife Service, Babbitt, & circumstances, the designation of actions nationwide. Clark (CN 2:00–CV–361 (E.D. TN))). On critical habitat is of little additional The accelerated schedules of court- November 8, 2001, the District Court of value for most listed species, yet it ordered designations have left us with the Eastern District of Tennessee issued consumes large amounts of conservation almost no ability to provide for adequate an order directing us to reconsider our resources. Sidle (1987. Env. public participation or ensure a defect- previous prudency determinations and Manage.11(4):429–437) stated, ‘‘Because free rulemaking process before making submit a new prudency determination the ESA can protect species with and decisions on listing and critical habitat and proposed critical habitat without critical habitat designation, proposals due to the risks associated designation, if prudent, for Arabis critical habitat designation may be with noncompliance with judicially- perstellata to the Federal Register no redundant to the other consultation imposed deadlines. This in turn fosters later than May 26, 2003, and a final requirements of section 7.’’ Currently, a second round of litigation in which decision not less than twelve months only 306 species or 25 percent of the those who fear adverse impacts from after the new prudency determination. 1,211 listed species in the U.S. under critical habitat designations challenge This proposal is the product of our the jurisdiction of the Service have those designations. The cycle of reevaluation of our 1995 determination designated critical habitat. We address litigation appears endless, is very that critical habitat designation for the habitat needs of all 1,211 listed expensive, and in the final analysis Arabis perstellata was not prudent. It species through conservation provides relatively little additional reflects our interpretation of recent mechanisms such as listing, section 7 protection to listed species.

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The costs resulting from the information became available, or what the critical habitat designation will designation include legal costs, the cost areas may become essential over time. If continue to be subject to conservation of preparation and publication of the the information available at the time of actions that may be implemented under designation, the analysis of the designation does not show that an area section 7(a)(1) of the Act and to the economic effects and the cost of provides essential life cycle needs of the regulatory protections afforded by the requesting and responding to public species, then the area will not be section 7(a)(2) jeopardy standard and comment, and in some cases the costs included in the critical habitat the section 9 take prohibition, as of compliance with NEPA. All are part designation. Our regulations state that, determined on the basis of the best of the cost of critical habitat ‘‘The Secretary shall designate as available information at the time of the designation. None of these costs result critical habitat areas outside the action. It is possible that federally in any benefit to the species that is not geographic area presently occupied by funded or assisted projects affecting already afforded by the protections of the species only when a designation listed species outside their designated the Act enumerated earlier, and they limited to its present range would be critical habitat areas could jeopardize directly reduce the funds available for inadequate to ensure the conservation of those species. Similarly, critical habitat direct and tangible conservation actions. the species’’ (50 CFR 424.12(e)). designations made on the basis of the Accordingly, when the best available best available information at the time of Critical Habitat scientific data do not demonstrate that designation will not control the Critical habitat is defined in section the conservation needs of the species direction and substance of future 3(5)(A) of the Act as (I) the specific areas require designation of critical habitat recovery plans, habitat conservation within the geographic area occupied by outside of occupied areas, we will not plans, or other species conservation a species, at the time it is listed in designate critical habitat in areas planning and recovery efforts if new accordance with the Act, on which are outside the geographic area occupied by information available to these planning found those physical or biological the species. efforts calls for a different outcome. features (I) essential to the conservation Section 4(b)(2) of the Act requires that of the species and (II) that may require we take into consideration the economic A. Prudency Determination special management considerations or impact, and any other relevant impact, Section 4(a)(3) of the Act and protection; and (ii) specific areas of specifying any particular area as implementing regulations (50 CFR outside the geographic area occupied by critical habitat. We may exclude areas 424.12) require that, to the maximum a species at the time it is listed, upon from critical habitat designation when extent prudent and determinable, we a determination that such areas are the benefits of exclusion outweigh the designate critical habitat at the time a essential for the conservation of the benefits of including the areas within species is listed as endangered or species. ‘‘Conservation’’ is defined in critical habitat, provided the exclusion threatened. Regulations at 50 CFR section 3(3) of the Act as the use of all will not result in extinction of the 424.12(a)(1) state that the designation of methods and procedures that are species. critical habitat is not prudent when one necessary to bring any endangered or Our Policy on Information Standards or both of the following situations exist: threatened species to the point at which Under the Endangered Species Act, (1) The species is threatened by taking listing under the Act is no longer published on July 1, 1994 (59 FR or other activity and the identification necessary. 34271), provides guidance to ensure that of critical habitat can be expected to In order for habitat to be included in our decisions are based on the best increase the degree of threat to the a critical habitat designation, the habitat scientific and commercial data species or (2) such designation of features must be ‘‘essential to the available. It requires that our biologists, critical habitat would not be beneficial conservation of the species.’’ Such to the extent consistent with the Act and to the species. In our January 3, 1995, critical habitat designations identify, to with the use of the best scientific and final listing rule (60 FR 56), we the extent known using the best commercial data available, use primary determined that the designation of scientific data available, habitat areas and original sources of information as critical habitat was not prudent for that provide essential life cycle needs of the basis for recommendations to Arabis perstellata because such the species (i.e., areas on which are designate critical habitat. When designation would not be beneficial to found the primary constituent elements, determining which areas are critical the species and such a designation as defined at 50 CFR 424.12(b)). habitat, information that should be could further threaten the species. Regulations at 50 CFR 424.02(j) define considered includes the listing package However, in the past few years, special management considerations or for the species; the recovery plan; several of our determinations that the protection to mean any methods or articles in peer-reviewed journals; designation of critical habitat would not procedures useful in protecting the conservation plans developed by States be prudent have been overturned by physical and biological features of the and Counties; scientific status surveys; court decisions. For example, in environment for the conservation of studies; biological assessments; Conservation Council for Hawaii v. listed species. unpublished materials; and expert Babbitt, the United States District Court When we designate critical habitat, opinion or personal knowledge. for the District of Hawaii ruled that the we may not have the information Habitat is often dynamic, however, Service could not rely on the ‘‘increased necessary to identify all areas that are and populations may move from one threat’’ rationale for a ‘‘not prudent’’ essential for the conservation of the area to another over time. Furthermore, determination without specific evidence species. Nevertheless, we are required to we recognize that designation of critical of the threat to the species at issue (2 F. designate those areas we know to be habitat may not include all of the Supp. 2d 1280 [D. Hawaii 1998]). critical habitat, using the best habitat areas that may eventually be Additionally, in Natural Resources information available to us. determined to be necessary for the Defense Council v. U.S. Department of Within the geographic area of the recovery of the species. Therefore, the Interior, the United States Court of species, we will designate only critical habitat designations do not Appeals for the Ninth Circuit issued a currently known essential areas. We signal that habitat outside the ruling that limited the application of the will not speculate about what areas designation is unimportant or may not no benefit justification and required the might be found to be essential if better be required for recovery. Areas outside Service to balance the potential threats

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against any benefits to the species of and habitat information, statewide as critical habitat provide some or all of designating critical habitat 113 F. 3d Geographic Information System (GIS) the habitat components essential for the 1121, 1125 (9th Cir. 1997). coverages (e.g., soils, geologic conservation of this species. The courts also have ruled that, in the formations, and elevation contours), the Based on the best available absence of a finding that the designation Natural Resources Conservation information, the primary constituent of critical habitat would increase threats Service’s soil surveys, the final listing elements essential for the conservation to a species, the existence of another rule for Arabis perstellata, recent of Arabis perstellata are: type of protection, even if it offers biological surveys and reports, peer- (a) The slopes of calcareous potentially greater protection to the reviewed literature, our final recovery mesophytic and sub-xeric forest that are species, does not justify a not prudent plan, and discussions and relatively undisturbed, with few finding (Conservation Council for recommendations from Arabis openings in the canopy and several Hawaii v. Babbitt 2 F. Supp. 2d 1280). perstellata experts. large, mature trees (such as sugar maple If critical habitat is designated for (Acer saccharum), chinquapin oak Arabis perstellata, Federal agencies will C. Primary Constituent Elements (Quercus muhlenbergii), hackberry be required to consult with us on In accordance with sections 3(5)(A)(i) (Celtus occidentalis), or Ohio buckeye actions they carry out, fund, or and 4(b)(1)(A) of the Act and regulations (Aesculus glabra)) ; authorize, to ensure that their actions at 50 CFR 424.12, in determining which (b) An area with few introduced will not destroy or adversely modify areas to propose as critical habitat, we weedy plant species such as Alliaria critical habitat. It may also provide are required to base critical habitat petiolata that is able to support self- information to Federal agencies and the determinations on the best scientific sustaining populations of 50 or more general public of the importance of data available, and to focus on those individuals; Arabis perstellata habitat and the need physical and biological features (c) A mesic habitat with open forest for special management considerations (primary constituent elements) that are floors containing rock outcrops on or protection. A critical habitat essential to the conservation of the moderate to steep slopes with little designation may assist Federal agencies species and that may require special herbaceous cover and leaf litter in planning future actions because it management considerations or accumulation with natural disturbance establishes, in advance, those habitats protection. Such requirements include, to allow for Arabis perstellata that will be reviewed in section 7 but are not limited to, space for germination and seedling germination; consultations. individual and population growth and (d) Ordovician limestone, in Though the identification of known for normal behavior; food, water, air, particular the Grier, Tanglewood, and plant locations in this proposed rule light, minerals, or other nutritional or Macedonia Bed Members of the may increase unauthorized collection, physiological requirements; cover or Lexington Limestone in Kentucky, and we currently have no knowledge that shelter; sites for germination or seed the Lebanon, Carters, Leipers, Catheys, unauthorized collection is or has been dispersal; and habitats that are protected and Bigby-Cannon Limestones in an issue with Arabis perstellata. We from disturbance or are representative of Tennessee; and found no records of unauthorized the historical geographical and (e) Limestone soils such as the collection during our literature review ecological distribution of a species. Fairmont Rock outcrop complexes in or in discussions with researchers. We Much of what is known about the Kentucky and the Mimosa Rock outcrop also have found no evidence that specific physical and biological complexes in Tennessee. identification of Arabis perstellata requirements of Arabis perstellata is critical habitat would increase the described in the ‘‘Background’’ section D. Criteria Used To Identify Critical degree of threat to the species. of this proposed rule. The proposed Habitat Accordingly, we withdraw our previous critical habitat is designed to provide We considered several factors in the determination that the designation of sufficient habitat to maintain self- selection and proposal of specific areas critical habitat is not prudent. We find sustaining populations of Arabis for critical habitat for Arabis perstellata. that designation of critical habitat is perstellata throughout its range, and to We assessed the final recovery plan prudent for Arabis perstellata because provide those habitat components objectives and criteria, which there is not likely to be increased threats essential for the conservation of the emphasize the protection of populations to the species that may result from the species. These habitat components throughout a significant portion of the critical habitat designation. provide for the following—(1) species’ range in Kentucky and individual and population growth, Tennessee. According to the recovery B. Methods including sites for germination, plan, Arabis perstellata will be As required by section 4(b)(2) of the pollination, reproduction, pollen and considered for delisting when 20 Act and its implementing regulations seed dispersal, and seed dormancy; (2) geographically distinct, self-sustaining (50 CFR 424.12), this proposal is based areas that provide basic requirements populations, consisting of 50 or more on the best scientific information for growth, such as water, light, and plants each, are protected in Kentucky available concerning the species’ minerals; and (3) areas that support and Tennessee, and it has been current and historical range, habitat, populations of pollinators and seed demonstrated that the populations are biology, and threats. In preparing this dispersal organisms; and (4) habitats stable or increasing after five years of rule, we reviewed and summarized the that are representative of the historic monitoring following reclassification to current information available on Arabis geographical and ecological distribution threatened status. Because of the perstellata, including the physical and of the species. proximity of occurrences of Arabis biological features that are essential for We believe the conservation of Arabis perstellata, protected populations must the conservation of the species (see perstellata is dependent upon a number be distributed throughout the range in ‘‘Primary Constituent Elements’’ of factors, including the conservation order to decrease the probability of a section), and identified the areas and management of sites where existing catastrophic event impacting all the containing these features. The populations grow and the maintenance protected populations. information used includes known of normal ecological functions within Our approach to delineating specific locations, our own site-specific species these sites. The areas we are proposing critical habitat units, based on the

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recovery criteria outlined above, habitat encompass approximately 408 as proposed critical habitat in this focused first on considering all areas of ha (1,008 ac) in Kentucky and document. We will conduct the analysis suitable habitat within the geographic Tennessee. on these two sites prior to making a distribution of this species and the To the extent feasible, we will final determination on this proposed known locations of the extant and continue, with the assistance of other rule. If we determine these areas to be historic populations. We evaluated field State, Federal, and private researchers, essential, it would be our intent to data collected from documented to conduct surveys, research, and include them in the final designation. occurrences, various GIS layers, soil conservation actions on the species and E. Mapping surveys, and United States Geological its habitat in areas designated and not Survey (USGS) quadrangle maps. These designated as critical habitat. If Once we determined that 20 data include Arabis perstellata additional information becomes populations are essential to the locations, soils, elevation, topography, available on the species’ biology, conservation of Arabis perstellata, we geologic formations, streams, and distribution, and threats, we will used site-specific information to current land uses. Originally, there were evaluate the need to designate determine the extent of these eight total populations in Tennessee and additional critical habitat, delete or populations. The proposed critical 47 in Kentucky. Four of the populations reduce critical habitat, or refine the habitat units were then delineated by in Tennessee and ten in Kentucky are boundaries of critical habitat. Sites that screen-digitizing polygons (map units) historic and no longer contain one or are occupied by this plant that are not using ArcView, a computer GIS more of the primary constituent being proposed for critical habitat will program. Based on the known plant elements present (Jones 1991; TDEC continue to receive protection under the distribution and allowing for downslope 2000; Deborah White, KSNPC, pers. Act’s section 7 jeopardy standard where germination, we placed boundaries comm. 2003). By lacking the primary a Federal nexus may occur (see ‘‘Critical around the populations that included constituent elements, they are not Habitat’’ section). the plants, as well as their primary essential to the conservation of Arabis Since the drafting of this proposed constituent elements. In defining these perstellata. critical habitat rule, we have received critical habitat boundaries, we made an Of the known remaining plant sites in new information from the TDEC (D. effort to exclude all developed areas, Kentucky (37) and Tennessee (4), we Lincicome, pers. comm. 2003) regarding such as housing developments, open identified an additional 21 sites as two new populations of Arabis areas, and other lands unlikely to having fewer than 50 plants and the perstellata. One population is located contain the primary constituent habitat is degraded. These sites lack the on Townsel Hill, west of the City of elements essential for the conservation primary constituent elements and, Murfreesboro between Newman and of Arabis perstellata. We used Kentucky therefore, are not essential to the Coleman Hill Roads in Rutherford State Plane North/North American conservation of Arabis perstellata. County, Tennessee. This site is adjacent Datum 1983 (NAD83) coordinates to The 20 units in this proposed to the proposed Sophie Hill critical designate the boundaries of the designation include a significant habitat site (see ‘‘Proposed Critical proposed critical habitat in Kentucky, portion, but not all, of the species’ Habitat Designation’’ section, unit 19) and Tennessee State Plane/NAD83 historic range. They all contain the and belongs to the same private coordinates to designate the boundaries primary constituent elements essential landowner. The other population is of the proposed critical habitat in for the conservation of Arabis located on Grandfather Knob between Tennessee. perstellata (see ‘‘Primary Constituent Cainsville and Spain Hill Roads in Proposed Critical Habitat Designation Elements’’ section). The omission of Wilson County, Tennessee. This site is historically occupied sites and the rest privately owned by two separate The areas proposed for designation as of the currently occupied sites from this landowners. Both sites contain over 100 critical habitat for Arabis perstellata proposed critical habitat designation Arabis perstellata plants and in general, provide the primary constituent does not diminish their individual or it appears that these two populations elements described above. Table 1 cumulative importance to the species. might meet the recovery criteria and summarizes the location and extent of Rather, it is our determination that the contain the primary constituent proposed critical habitat. All of the habitat contained within the 20 units elements. However, these new proposed areas require special included in this proposed rule populations were located following the management considerations to ensure constitutes our best determination of drafting of the proposed critical habitat their contribution to the conservation of areas essential for the conservation, and rule. Because of time and budget Arabis perstellata. We provide general eventual recovery, of Arabis perstellata. constraints, we are unable to adequately descriptions of the boundaries of The 20 units we are proposing as critical and formally analyze them for inclusion proposed critical habitat units below.

TABLE 1.—APPROXIMATE AREA (HECTARES AND ACRES) OF PROPOSED CRITICAL HABITAT BY UNIT FOR Arabis perstellata

Critical habitat unit County/State Land ownership Hectares Acres

1. Sky View Drive ...... Franklin/Kentucky ...... Private ...... 22 54 2. Benson Valley Woods ...... Franklin/Kentucky ...... Private ...... 37 91 3. Red Bridge Ridge ...... Franklin/Kentucky ...... Private ...... 6 15 4. Tributary to South Benson Creek ...... Franklin/Kentucky ...... Private ...... 10 25 5. Davis Branch ...... Franklin/Kentucky ...... Private ...... 3 7 6. Onans Bend ...... Franklin/Kentucky ...... Private ...... 12 30 7. Shadrock Ferry Road ...... Franklin/Kentucky ...... Private ...... 15 37 8. Hoover Site ...... Franklin/Kentucky ...... Private ...... 83 205 9. Longs Ravine Site ...... Franklin/Kentucky ...... Private ...... 30 74 10. Strohmeiers Hill ...... Franklin/Kentucky ...... Private ...... 20 49

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TABLE 1.—APPROXIMATE AREA (HECTARES AND ACRES) OF PROPOSED CRITICAL HABITAT BY UNIT FOR Arabis perstellata—Continued

Critical habitat unit County/State Land ownership Hectares Acres

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

Critical Habitat Unit Descriptions Consequently, the proposed units are Unit 3. Red Bridge Ridge in Franklin We are proposing a total of 20 critical essential for the long-term conservation County, Kentucky habitat units for Arabis perstellata in and eventual recovery of this species Unit 3 is located west of Kentucky Kentucky and Tennessee—14 critical because they constitute the 20 (KY) Highway 1005, at the confluence of habitat units in Franklin County, geographically distinct sites that are South Benson and Benson Creeks. The Kentucky; 3 in Owen County, Kentucky; most likely to be able to support self- site is privately owned and is and 3 in Rutherford County, Tennessee. sustaining populations of 50 or more approximately 6 ha (15 ac) in size. In order to provide determinable legal individuals, as outlined in the recovery Plants at this site were first observed in descriptions of the critical habitat criteria. 1987. In 1990, 75 plants were found boundaries, we drew polygons around A brief description of each of these along the southeast- and northwest- these units, using as criteria the plant’s critical habitat units is given below. The facing slopes. primary constituent elements, the population information presented in all Unit 4. Tributary to South Benson Creek known extent of the populations, and of the unit descriptions was taken from in Franklin County, Kentucky the elevation contours on the map. We the KSNPC’s Natural Heritage Database made an effort to avoid developed areas for the Kentucky units and the TDEC’s This unit is located northeast of the that are unlikely to contribute to the Natural Heritage Database for the City of Frankfort. It occurs along the conservation of Arabis perstellata. Areas Tennessee units. southeast side of South Benson Creek within the boundaries of the mapped and the north and south slopes of an units, such as buildings, roads, Unit 1. Sky View Drive in Franklin unnamed tributary. The site is in private clearings, transmission lines, lawns, and County, Kentucky ownership and is 10 ha (25 ac) in size. other urban landscaped areas do not In 1996, over 1,000 plants were found Unit 1 is located on the west side of contain one or more of the primary along the northwest-facing lower, mid, the City of Frankfort. It occurs along constituent elements. As such, Federal and upper slopes, making this one of the U.S. 127 and Skyview Drive on the actions limited to these areas would not best sites in Kentucky for Arabis slopes of the first large ravine system trigger consultation pursuant to section perstellata. 7 of the Act, unless they affect the due west of the confluence of Benson species or primary constituent elements Creek and the Kentucky River. It Unit 5. Davis Branch in Franklin in the critical habitat. contains approximately 22 ha (54 ac), all County, Kentucky On the basis of the best available of which are privately owned. This site This unit occurs along the east side of scientific information, we determined was first observed to have Arabis Harvieland Drive and Davis Branch. that the 20 proposed critical habitat perstellata in 1979. In 2001, surveys This unit contains approximately 3 ha units represent the only known Arabis conducted by the KSNPC found more (7 ac) and is privately owned. Plants perstellata populations that meet the than 150 plants, but not all habitat was were first observed at this site in 1990. recovery criteria of being geographically surveyed. The majority of the plants In 2001, more than 200 plants were distinct, self-sustaining, and containing occur on the west- and south-facing found along the south-facing slope 50 or more plants. These 20 sites slopes and are associated with bare soil throughout the ravine system. contain the highest-quality populations on trails and tree bases. in terms of size and habitat that are Unit 6. Onans Bend in Franklin County, Unit 2. Benson Valley Woods in Kentucky presently known. The remaining known Franklin County, Kentucky populations (21) of Arabis perstellata do Unit 6 occurs north of Onans Bend not meet these criteria, because each has Unit 2 is located west of the City of Road and east of KY Highway 12. The fewer than 50 plants that occur on Frankfort. The unit lies southeast of unit lies along the banks of an unnamed degraded sites, making their long-term Benson Valley Road on the south side stream near its mouth with the west viability questionable. As such, they are of Benson Creek. It is privately owned bank of the Kentucky River. This unit is not essential to the conservation of this and contains approximately 37 ha (91 privately owned and contains species. Once the proposed 20 sites ac). The plants occur on the southeast- approximately 12 ha (30 ac). Plants at have adequate management and facing slope. They were first observed in this unit were first observed in 1979. In permanent protection measures in place 1979. KSNPC personnel last observed 1990, more than 100 plants were found and their populations are stable or more than 200 plants in 2001. The site on the south-facing slope. The plants increasing for a 5-year period, we may is threatened by trampling and were exceptionally vigorous. The site is consider this species for delisting. competition by weeds. threatened by weed competition.

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Unit 7. Shadrock Ferry Road in Franklin Unit 12. Camp Pleasant Branch Woods oxbow west of the existing Elkhorn County, Kentucky in Franklin County, Kentucky Creek and is privately owned. The unit size is approximately 11 ha (27 ac). This unit is located along the north Unit 12 is located along the south side of Camp Pleasant Road (KY Highway Plants were first observed at this site in side of Shadrock Ferry Road (KY 1981. In 1990, more than 200 plants Highway 898). Property at this location 1707). This site is privately owned and contains approximately 14 ha (35 ac). were found on the southeast facing is in private ownership. This unit is slope. approximately 15 ha (37 ac) in size. The first observance of plants at this site Plants were first observed at this site in was in 1987. In 2001, more than 100 Unit 18. Scales Mountain in Rutherford 1996. In 2001, more than 100 plants plants were found along the lower County, Tennessee northwest-facing slope. Plants at this were found on the south-facing slope. This unit is located west of the City site are threatened by competition from of Murfreesboro on Scales Mountain, 1.6 Unit 8. Hoover Site in Franklin County, weeds. Kentucky km (1 mile) south of Highway 96. The Unit 13. Saufley in Franklin County, site is privately owned and is 36 ha (89 This unit lies northwest of the City of Kentucky ac) in size. Plants were first observed at Frankfort, along the west side of the Unit 13 occurs west of the KY this site in 1985. In 2000, more than 100 Kentucky River on slopes bordering two Highway 1900 bridge over Elkhorn plants were found on the north-facing unnamed tributaries. Plants are widely Creek on the hillside above the creek. slope. The primary threat to this site is scattered in small groups along the The land ownership for this unit is competition from weeds. Kentucky River bluff from river private. The site is approximately 8 ha Unit 19. Sophie Hill in Rutherford kilometer (km) 98.6 to 101.7 (river mile (20 ac) in size. Plants were first County, Tennessee 61.3 to 63.2. This unit is in private observed in 1988. In 1996, more than ownership and contains approximately Unit 19 is located west of the City of 100 plants were found along the top of Murfreesboro on Sophie Hill, which lies 83 ha (205 ac). The plants were first the ridge on the northeast-facing slope. observed in 1990. In 1996, more than between Newman and Coleman Hill 200 plants were found. Unit 14. Clements Bluff in Owen Roads. The property at this site is County, Kentucky privately owned. The unit is Unit 9. Longs Ravine Site in Franklin This unit is located in a ravine facing approximately 16 ha (40 ac) in size. The County, Kentucky the Kentucky River along the east side first observance of Arabis perstellata on this site was in 1991. In 2000, more than Unit 9 is located north of the City of of KY Highway 355. The site is owned by the State of Kentucky and is part of 200 plants were found on the northwest Frankfort and Lewis Ferry Road. This side of Sophie Hill. unit lies east of the Kentucky River in the Kentucky River Wildlife a large ravine and along the steep slopes Management Area. This unit is Unit 20. Indian Mountain in Rutherford above the river. This unit is privately approximately 11 ha (27 ac) in size. The County, Tennessee owned. There are approximately 30 ha plants were first observed at this site in Unit 20 is located west of the City of (74 ac) in this unit. In 1990, more than 1980 on the north-facing slope. In 1996, Murfreesboro on Indian Mountain 250 plants were found on the northeast, approximately 100 plants occurred at between Highway 96 and Coleman Hill southwest, and northwest-facing slopes. the site. Road. This site is privately owned. The Unit 10. Strohmeiers Hill in Franklin Unit 15. Monterey U.S. 127 in Owen unit size is approximately 28 ha (69 ac). County, Kentucky County, Kentucky In 2000, over 2,600 plants were found. This is the best site for Arabis Unit 15 is located 1.6 km (1 mile) This unit is located south of the Town perstellata in Tennessee. Logging north of the City of Monterey, just north of Swallowfield and adjacent to appears to be the biggest threat to this of the junction of U.S. 127 and KY Strohmeier Road and U.S. 127. It occurs exceptional site. Highway 355. The property is privately on steep slopes on the south side of owned and is approximately 12 ha (30 Effects of Critical Habitat Designation Elkhorn Creek and on the east bank of ac) in size. Plants were first observed at the Kentucky River, south of the ESA Section 7 Consultation this site in 1996. In 1997, 150 plants confluence with Elkhorn Creek. The were found along the southwest-facing The regulatory effects of a critical plants at this site were first observed in slope of an unnamed tributary to the habitat designation under the Act are 1930. The property is privately owned. Kentucky River. The site is being triggered through the provisions of The site is approximately 20 ha (49 ac) threatened by weedy competition. section 7, which applies only to in size. In 1994, the site contained more activities conducted, authorized, or than 200 flowering plants. The plants Unit 16. Craddock Bottom in Owen funded by a Federal agency (Federal were exceptionally vigorous and County, Kentucky actions). Regulations implementing this occurred throughout a large area, This unit is located south of the City interagency cooperation provision of the making this one of the best populations of Monterey. It occurs along the west Act are codified at 50 CFR 402. of Arabis perstellata in Kentucky side of Old Frankfort Pike on the west- Individuals, organizations, States, local Unit 11. U.S. 127 in Franklin County, facing slope just east of Craddock governments, and other non-Federal Kentucky Bottom. Property at this site is privately entities are not affected by the owned and contains approximately 23 designation of critical habitat unless Unit 11 is located along the east side ha (57 ac). In 1996, over 150 plants were their actions occur on Federal lands, of U.S. 127 in a ravine just southeast of found. In 1996, there was evidence of require Federal authorization, or involve Elkhorn Creek. This privately owned logging in the surrounding area. Federal funding. site is approximately 11 ha (27 ac) in Section 7(a)(2) of the Act requires size. The plants were first observed in Unit 17. Backbone North in Franklin Federal agencies, including us, to insure 2001, at which time approximately 100 County, Kentucky that their actions are not likely to plants were found on the west-facing Unit 17 is located north of KY jeopardize the continued existence of a slope. Highway 1900. It occurs in an old river listed species or result in the

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destruction or adverse modification of responsible Federal agency (action Communications Commission—will be designated critical habitat. This agency) must enter into consultation subject to the section 7 consultation requirement is met through section 7 with us. Through this consultation, the process. Federal actions not affecting consultation under the Act. Our action agency would ensure that the listed species or critical habitat, and regulations define ‘‘jeopardize the permitted actions do not destroy or actions on non-Federal lands that are continued existence’’ as to engage in an adversely modify critical habitat. not federally funded, authorized, or action that reasonably would be If we issue a biological opinion permitted do not require section 7 expected, directly or indirectly, to concluding that a project is likely to consultation. reduce appreciably the likelihood of result in the destruction or adverse Section 4(b)(8) of the Act requires us both the survival and recovery of a modification of critical habitat, we to briefly evaluate and describe in any listed species in the wild by reducing would also provide reasonable and proposed or final regulation that the reproduction, numbers, or prudent alternatives to the project, if designates critical habitat those distribution of that species (50 CFR any are identifiable. Reasonable and activities involving a Federal action that 402.02). ‘‘Destruction or adverse prudent alternatives are defined at 50 may adversely modify such habitat, or modification of designated critical CFR 402.02 as alternative actions that may be affected by such habitat’’ is defined as a direct or indirect identified during consultation that can designation. Activities that may result alteration that appreciably diminishes be implemented in a manner consistent in the destruction or adverse the value of the critical habitat for both with the intended purpose of the action, modification of critical habitat include the survival and recovery of the species that are consistent with the scope of the those that alter the primary constituent (50 CFR 402.02). Such alterations Federal agency’s legal authority and elements to an extent that the value of include, but are not limited to, adverse jurisdiction, that are economically and critical habitat for the conservation of changes to the physical or biological technologically feasible, and that the Arabis perstellata is appreciably features, i.e., the primary constituent Service’s Regional Director believes reduced. We note that such activities elements, that were the basis for would avoid the destruction or adverse may also jeopardize the continued determining the habitat to be critical. modification of critical habitat. existence of the species. Activities that, However, in a March 15, 2001, decision Reasonable and prudent alternatives can when carried out, funded, or authorized of the United States Court of Appeals for vary from slight project modifications to by a Federal agency, may directly or the Fifth Circuit (Sierra Club v. U.S. extensive redesign or relocation of the indirectly destroy or adversely modify Fish and Wildlife Service et al., 245 F.3d project. Costs associated with critical habitat include, but are not 434), the Court found our definition of implementing a reasonable and prudent limited to: destruction or adverse modification to alternative are similarly variable. (1) Ground disturbances that destroy be invalid. In response to this decision, Regulations at 50 CFR 402.16 require or degrade primary constituent elements we are reviewing the regulatory Federal agencies to reinitiate of the plant (e.g., clearing, tilling, definition of adverse modification in consultation on previously reviewed grading, logging, construction, and road relation to the conservation of the actions in instances where critical building); species. habitat is subsequently designated and (2) Activities that directly or Section 7(a)(4) requires Federal the Federal agency has retained indirectly affect Arabis perstellata agencies to confer with us on any action discretionary involvement or control plants or underlying seed bank (e.g., that is likely to jeopardize the continued over the action or such discretionary herbicide application that could degrade existence of a proposed species or result involvement or control is authorized by the habitat on which the species in destruction or adverse modification law. Consequently, some Federal depends, incompatible introductions of of proposed critical habitat. Conference agencies may request reinitiation of non-native herbivores, incompatible reports provide conservation consultation or conference with us on grazing management, clearing, tilling, recommendations to assist the agency in actions for which formal consultation grading, construction, and road eliminating conflicts that may be caused has been completed, if those actions building); by the proposed action. The may affect designated critical habitat or (3) Activities that encourage the conservation recommendations in a adversely modify or destroy proposed growth of Arabis perstellata competitors conference report are advisory. critical habitat. (e.g., widespread fertilizer application, We may issue a formal conference There are no known populations of road building, clearing, logging); and report, if requested by the Federal action Arabis perstellata occurring on Federal (4) Activities that significantly agency. Formal conference reports lands. However, activities on private, degrade or destroy Arabis perstellata include an opinion that is prepared State, or city lands requiring a permit pollinator populations (e.g., pesticide according to 50 CFR 402.14, as if critical from a Federal agency, such as a permit applications). habitat were designated. We may adopt from the U.S. Army Corps of Engineers the formal conference report as the (USACE) under section 404 of the Clean Previous Section 7 Consultations biological opinion when critical habitat Water Act, a permit under section Several section 7 consultations for is designated, if no substantial new 10(a)(1)(B) of the Act from us, or some Federal actions affecting Arabis information or changes in the action other Federal action—including funding perstellata and its habitat have preceded alter the content of the opinion (see 50 (e.g., from the Federal Highway this critical habitat proposal. The action CFR 402.10(d)). Administration (FHWA), Federal agencies have included the USACE, U.S. If a species is listed or critical habitat Aviation Administration, or Federal Department of Agriculture Rural is designated, section 7(a)(2) requires Emergency Management Agency); Development, FHWA, and EPA. Federal agencies to ensure that activities permits from the Department of Housing Since listing, we have conducted 33 they authorize, fund, or carry out are not and Urban Development; activities informal and no formal consultations likely to jeopardize the continued funded by the U.S. Environmental involving Arabis perstellata. The existence of such a species or to destroy Protection Agency (EPA), Department of informal consultations, all of which or adversely modify its critical habitat. Energy, or any other Federal agency; concluded with a finding that the If a Federal action may affect a listed and construction of communication proposed Federal action would not species or its critical habitat, the sites licensed by the Federal affect or would not likely adversely

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affect Arabis perstellata, addressed a Relationship to Habitat Conservation our critical habitat designation is based range of actions, including highway and Plans and Other Planning Efforts on scientifically sound data, bridge construction, maintenance of Section 10(a)(1)(B) of the Act assumptions, and analyses. We will utility lines (e.g., water and sewer lines) authorizes us to issue permits for the send these peer reviewers copies of this along existing roads, and building take of listed wildlife species incidental proposed rule immediately following construction. to otherwise lawful activities. An publication in the Federal Register. We will invite these peer reviewers to The designation of critical habitat will incidental take permit application must comment, during the public comment have no impact on private landowner be supported by a habitat conservation period, on the specific assumptions and activities that do not require Federal plan (HCP) that identifies conservation measures that the permittee agrees to conclusions regarding the proposed funding or permits. Designation of designation of critical habitat. implement for the species to minimize critical habitat is only applicable to We will consider all comments and and mitigate the impacts of the activities approved, funded, or carried information received during the out by Federal agencies. permitted incidental take. Although take comment period on this proposed rule of listed plants is not generally If you have questions regarding during preparation of a final prohibited by the Act on private land, whether specific activities would rulemaking. Accordingly, the final listed plant species may also be covered constitute adverse modification of decision may differ from this proposal. in an HCP for wildlife species. critical habitat, you may contact the Currently, no HCPs exist that include Public Hearing following Service offices: Arabis perstellata as a covered species. The Act provides for one or more Kentucky-Frankfort Ecological Services In the event that future HCPs covering public hearings on this proposal, if Office (502/695–0468) Arabis perstellata are developed within requested. Requests for public hearings Tennessee-Cookeville Ecological the boundaries of designated critical must be made in writing at least 15 days habitat, we will work with applicants to Services Office (931/528–6481) prior to the close of the public comment ensure that the HCPs provide for period. We will schedule public To request copies of the regulations protection and management of habitat hearings on this proposal, if any are on listed wildlife and plants or inquire areas essential for the conservation of requested, and announce the dates, about prohibitions and permits, contact this species. This will be accomplished times, and places of those hearings in the U.S. Fish and Wildlife Service, by either directing development and the Federal Register and local Ecological Services, 1875 Century habitat modification to nonessential newspapers at least 15 days prior to the Boulevard, Atlanta, GA 30345 areas, or appropriately modifying first hearing. (telephone 404/679–4176; facsimile activities within essential habitat areas Clarity of the Rule 404/679–7081). so that such activities will not adversely modify the primary constituent Executive Order 12866 requires each Exclusions Under Section 4(b)(2) elements. The HCP development agency to write regulations and notices process would provide an opportunity that are easy to understand. We invite Section 4(b)(2) of the Act requires that your comments on how to make we designate critical habitat on the basis for more intensive data collection and analysis regarding the use of particular proposed rules easier to understand of the best scientific information habitat areas by Arabis perstellata. The including answers to questions such as available, and that we consider the process would also enable us to conduct the following: (1) Are the requirements economic and other relevant impacts of detailed evaluations of the importance in the document clearly stated? (2) Does designating a particular area as critical of such lands to the long-term survival the proposed rule contain technical habitat. We may exclude areas from and conservation of the species in the language or jargon that interferes with critical habitat if the benefits of context of constructing a system of the clarity? (3) Does the format of the exclusion outweigh the benefits of interlinked habitat blocks configured to proposed rule (e.g., grouping and order designation, provided the exclusion will promote the conservation of the species of sections, use of headings, not result in the extinction of the through application of the principles of paragraphing) aid or reduce its clarity? species. We have completed a draft conservation biology. We will provide (4) Is the description of the proposed analysis of the economic impacts of technical assistance and work closely rule in the SUPPLEMENTARY INFORMATION designating these areas as critical with applicants throughout the Section of the preamble helpful in habitat that is consistent with the ruling development of any future HCPs to understanding the proposed rule? (5) of the 10th Circuit Court of Appeals in identify lands essential for the long-term What else could we do to make the N.M. Cattle Growers Ass’n v. USFWS. conservation of Arabis perstellata, and proposed rule easier to understand? The results of our draft analysis suggest appropriate management for those Send a copy of any comments that that the potential economic impacts of lands. Furthermore, we will complete concern how we could make this notice the proposed designation range from intra-Service consultation on our easier to understand to: Office of $65,000 to $272,000 over the next 10 issuance of section 10(a)(1)(B) permits Regulatory Affairs, Department of the years. Please refer to the draft analysis for these HCPs to ensure permit Interior, Room 7229, 1849 C Street, for more details concerning the issuance will not destroy or adversely NW., Washington, DC 20240. You may methodological approach and finding of modify critical habitat. e-mail your comments to this address: the analysis. Comments will be accepted [email protected]. Peer Review on the draft economic analysis during Required Determinations the comment period on this proposed In accordance with our joint policy rule. Copies of the draft economic published in the Federal Register on Regulatory Planning and Review analysis of this proposed critical habitat July 1, 1994 (59 FR 34270), we will seek In accordance with Executive Order designation are available on the Internet the expert opinions of at least three 12866, the Office of Management and at http://cookeville.fws.gov or by appropriate and independent specialists Budget (OMB) has determined that this contacting our Cookeville, TN field regarding this proposed rule. The critical habitat designation is not a office (see ADDRESSES). purpose of such review is to ensure that significant regulatory action. This rule

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

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the proposed designation of critical Unfunded Mandates Reform Act (2 making this definition and habitat for Arabia perstellata will not U.S.C. 1501 et seq.) identification does not alter where and have a significant economic impact on In accordance with the Unfunded what federally sponsored activities may a substantial number of small entities, Mandates Reform Act (2 U.S.C. 1501 et occur, it may assist these local and an initial regulatory flexibility seq.): governments in long-range planning, analysis is not required. This (a) This proposed rule will not rather than forcing/necessitating them to determination will be revisited after ‘‘significantly or uniquely’’ affect small wait for case-by-case section 7 review of our economic analysis and governments. A Small Government consultations to occur. revised, if necessary, in the final rule. Agency Plan is not required. Small Civil Justice Reform This discussion is based upon the governments will not be affected unless In accordance with Executive Order information regarding potential they propose an action requiring Federal 12988, the Office of the Solicitor has economic impact that is available to us funds, permits, or other authorization. determined that the rule does not at this time. This assessment of Any such activity will require that the unduly burden the judicial system, and economic effect may be modified prior involved Federal agency ensure that the that it meets the requirements of to final rulemaking based upon review action will not adversely modify or sections 3(a) and 3(b)(2) of the Order. destroy designated critical habitat. of the draft economic analysis prepared We are proposing to designate critical (b) This rule will not produce a pursuant to section 4(b)(2) of the ESA habitat in accordance with the Federal mandate on State, local, or tribal provisions of the Act, as amended. This and Executive Order 12866. This governments or the private sector of analysis is for the purposes of rule uses standard property descriptions $100 million or greater in any year; that and identifies the primary constituent compliance with the Regulatory is, it is not a ‘‘significant regulatory Flexibility Act and does not reflect our elements within the proposed areas to action’’ under the Unfunded Mandates assist the public in understanding the position on the type of economic Reform Act. The designation of critical analysis required by New Mexico Cattle habitat needs that are essential for the habitat imposes no new obligations on conservation of Arabis perstellata. Growers Assn. v. U.S. Fish and Wildlife State or local governments. Service 248 F.3d 1277 (10th Cir. 2001). Paperwork Reduction Act of 1995 (44 Takings U.S.C. 3501 et seq.) Small Business Regulatory Enforcement In accordance with Executive Order Fairness Act (5 U.S.C. 802(2)) This proposed rule does not contain 12630 (‘‘Government Actions and new or revised information collection In the draft economic analysis, we Interference with Constitutionally for which OMB approval is required determine whether designation of Protected Private Property Rights’’), we under the Paperwork Reduction Act. An critical habitat will cause (a) any effect have analyzed the potential takings agency may not conduct or sponsor, and on the economy of $100 million or implications of proposing to designate a person is not required to respond to, more; (b) any increases in costs or prices approximately 408 ha (1,008 ac) of lands a collection of information unless it in Franklin and Owen counties in for consumers, individual industries, displays a currently valid OMB control Kentucky, and Rutherford county in Federal, State, or local government number. Tennessee, as critical habitat for Arabis agencies, or geographic regions; or (c) perstellata in a takings implication National Environmental Policy Act any significant adverse effects on assessment. This preliminary We have determined that we do not competition, employment, investment, assessment concludes that this proposed need to prepare an Environmental productivity, innovation, or the ability rule does not pose significant takings Assessment or an Environmental Impact of U.S.-based enterprises to compete implications. Statement as defined by the National with foreign-based enterprises. Refer to Federalism Environmental Policy Act of 1969, in the draft economic analysis for a connection with regulations adopted discussion of the effects of this In accordance with Executive Order pursuant to section 4(a) of the Act. We determination. 13132, this rule does not have published a notice outlining our reasons significant Federalism effects. A Executive Order 13211 for this determination in the Federal Federalism assessment is not required. Register on October 25, 1983 (48 FR On May 18, 2001, the President issued In keeping with Department of the 49244). Executive Order 13211 on regulations Interior policy, we requested information from, and coordinated the Government-to-Government that significantly affect energy supply, Relationship With Tribes distribution, and use. Executive Order development of this critical habitat 13211 requires agencies to prepare proposal with, appropriate State natural In accordance with the President’s resource agencies in Kentucky and memorandum of April 29, 1994, Statements of Energy Effects when Tennessee. The impact of the proposed ‘‘Government-to-Government Relations undertaking certain actions. The designation on State and local with Native American Tribal primary land uses within designated governments and their activities is not Governments’’ (59 FR 22951), Executive critical habitat for Arabis perstellata believed to be significant, and we are Order 13175, and the Department of the include recreation, grazing, and logging. examining this more fully in the Interior’s manual at 512 DM 2, we No significant energy production, economic analysis of the proposal, on readily acknowledge our responsibility supply, and distribution facilities are which we are seeking public comment. to communicate meaningfully with included within designated critical The designation may have some benefit recognized Federal Tribes on a habitat. Therefore, this action is not a to these governments in that the areas government-to-government basis. We significant action affecting energy essential to the conservation of the are not aware of any Tribal lands production, supply, and distribution species are more clearly defined, and essential for the conservation of Arabis facilities, and no Statement of Energy the primary constituent elements of the perstellata. Therefore, the proposed Effects is required. habitat necessary to the survival of the critical habitat for Arabis perstellata species are specifically identified. While does not contain any Tribal lands or

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lands that we have identified as List of Subjects in 50 CFR Part 17 Authority: 16 U.S.C. 1361–1407; 16 U.S.C. impacting Tribal trust resources. Endangered and threatened species, 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– 625, 100 Stat. 3500; unless otherwise noted. References Cited Exports, Imports, Reporting and recordkeeping requirements, 2. In section 17.12(h), revise the entry A complete list of all references cited Transportation. for the ‘‘Arabis perstellata’’ under in this proposed rule is available upon Proposed Regulation Promulgation ‘‘FLOWERING PLANTS’’ in the List of request from the Cookeville Field Office Endangered and Threatened Plants to For the reasons outlined in the (see ADDRESSES section). read as follows: preamble, we propose to amend part 17, Author subchapter B of chapter I, title 50 of the § 17.12 Endangered and threatened plants. Code of Federal Regulations, as follows: The primary author of this document * * * * * is Timothy Merritt (see ADDRESSES PART 17—[AMENDED] (h) * * * section), 931/528–6481, extension 211. 1. The authority citation for part 17 continues to read as follows:

Species Historic range Family Status When listed Critical Special Scientific name Common name habitat rules

******* FLOWERING PLANTS

******* Arabis perstellata ..... Rock-cress, Braun’s U.S.A. (KY, TN) ...... Brassicaceae ...... E 570 17.96(a) NA

*******

3. In § 17.96, amend paragraph (a) by (Celtus occidentalis), or Ohio buckeye (3) Existing features and structures adding an entry for ‘‘Family (Aesculus glabra); made by people, such as buildings, Brassicaceae’’ Arabis perstellata in (ii) An area with few introduced roads, railroads, airports, other paved alphabetical order to read as follows: weedy plant species such as Alliaria areas, lawns, and other urban petiolata that is able to support self- landscaped areas, do not contain one or § 17.96 Critical habitat—plants. sustaining populations of 50 or more more of the primary constituent (a) * * * individuals; elements and are not critical habitat. Family Brassicaceae: Arabis (iii) A mesic habitat with open forest Federal actions limited to those areas, perstellata (Braun’s rock-cress). floors containing rock outcrops on therefore, would not trigger a moderate to steep slopes with little consultation under section 7 of the Act (1) Critical habitat units are depicted herbaceous cover and leaf litter unless they may affect the species and/ for Franklin and Owen Counties, accumulation with natural disturbance or primary constituent elements in Kentucky, and Rutherford County, to allow for Arabis perstellata adjacent critical habitat. Tennessee, on the maps below. germination and seedling germination; (4) Critical Habitat Map Units. (2) Based on the best available (iv) Ordovician limestone, in (i) Data layers defining map units information, primary constituent particular the Grier, Tanglewood, and were created on a base of USGS 7.5′ elements essential for the conservation Macedonia Bed Members of the quadrangles, and proposed critical of Arabis perstellata are: Lexington Limestone in Kentucky, and habitat units were then mapped in feet (i) The slopes of calcareous the Lebanon, Carters, Leipers, Catheys, using Kentucky State Plane North, NAD mesophytic and sub-xeric forest that are and Bigby-Cannon Limestones in 83, and Tennessee State Plane, NAD 83, relatively undisturbed, with few Tennessee; and coordinates. openings in the canopy and several (v) Limestone soils such as the (ii) Map 1, Index of Critical Habitat large, mature trees (such as sugar maple Fairmont Rock outcrop complexes in Proposed for Braun’s Rock-cress, (Acer saccharum), chinquapin oak Kentucky and the Mimosa Rock outcrop Kentucky, follows: (Quercus muhlenbergii), hackberry complexes in Tennessee. BILLING CODE 4310–55–P

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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