[Federal Register Volume 71, Number 243 (Tuesday, December 19, 2006)]
[Proposed Rules]
[Pages 76024-76035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21260]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



 Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed 
Rule to List Penstemon grahamii (Graham's beardtongue) as Threatened 
With Critical Habitat; Proposed Rule

  Federal Register / Vol. 71, No. 243 / Tuesday, December 19, 2006 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU49


Endangered and Threatened Wildlife and Plants; Withdrawal of 
Proposed Rule to List Penstemon grahamii (Graham's beardtongue) as 
Threatened With Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; withdrawal.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), withdraw the 
proposed rule, published in the Federal Register on January 19, 2006 
(71 FR 3158), to list Penstemon grahamii (Graham's beardtongue) as a 
threatened species with critical habitat under the Endangered Species 
Act (Act) of 1973, as amended. We have determined that listing is not 
warranted because threats to the species as identified in the January 
19, 2006, proposed rule are not significant, and available data do not 
indicate that the threats to the species and its habitat, as analyzed 
under the five listing factors described in section 4(a)(1) of the Act, 
are likely to threaten or endanger the species in the foreseeable 
future throughout all or a significant portion of its range. Our 
decision to withdraw the proposed rule to list Penstemon grahamii also 
removes the species from candidate status under the Act.

DATES: The proposed rule published at 71 FR 3158, January 19, 2006 
concerning Graham's beardtongue is withdrawn effective December 19, 
2006.

ADDRESSES: Supporting documentation for this rulemaking is available 
for public inspection, by appointment, during normal business hours at 
the U.S. Fish and Wildlife Service, Utah Field Office, 2369 W. Orton 
Circle, West Valley City, Utah 84119.

FOR FURTHER INFORMATION CONTACT: Larry England, Botanist, at the above 
address (telephone 801-975-3330, extension 138; fax 801-975-3331; or e-
mail [email protected]).

SUPPLEMENTARY INFORMATION: 

Background

    In this document, it is our intent to discuss only those topics 
directly relevant to the listing and designation of critical habitat 
for Penstemon grahamii. For additional information on the species, 
refer to the proposed rule published in the Federal Register on January 
19, 2006 (71 FR 3158).
    The genus Penstemon consists of dicotyledonous plants traditionally 
placed in the Figwort family (Scrophulariaceae). Penstemon grahamii was 
first collected from a site west of the Green River and south of Sand 
Wash, in southern Uintah County, Utah, on May 27, 1933, and from a site 
north of Sand Wash on the following day (Graham 1937, p. 332). P. 
grahamii is an herbaceous perennial plant within the sub-genus Cristati 
(N. Holmgren in Cronquist et al. 1984, p. 380). The species is 
described in detail in the proposed rule (71 FR 3158).
    We delineated all known locations with extant populations of 
Penstemon grahamii into 109 occurrences. An ``occurrence'' is defined 
in this document as: an area with continuous suitable habitat with an 
extant or historical population of P. grahamii delineated on aerial 
photography (Service 2005, pp. 1-3, 13). We grouped these occurrences 
into five population habitat units separated by unoccupied gaps in the 
species' range. A ``population habitat unit'' is defined as continuous 
groups of occurrences within 5 kilometers (km) (3 miles (mi)) of each 
other (Service 2005, pp. 4, 7). Available population data information 
is summarized for the five population habitat units rather than each of 
the 109 occurrences (Shultz and Mutz 1979b, pp 25-39; Neese and Smith 
1982b, pp. 116-140; Borland 1987 p. 1; Franklin 1993, Appendix D; 
Franklin 1995, Appendix B; Colorado Natural Heritage Program (Colorado 
NHP) 2005, pp. 1-20; Utah Natural Heritage Program (Utah NHP) 2005, pp. 
1-124; Service 2005, pp. 1-13).
    The 109 occurrences within 5 population habitat units of Penstemon 
grahamii collectively form the species' known range, which is 
distributed in a curved band about 10 km (6 mi) wide and about 128 km 
(80 mi) long. These units extend from the Sand Wash and adjacent Nine 
Mile Creek drainages near the point where Carbon, Duchesne, and Uintah 
Counties, Utah, meet; then easterly across southern Uintah County to 
near the Colorado border; then northerly to a point near the White 
River where the population band moves into Colorado to Raven Ridge, the 
eastern terminus of the species' range. The total documented population 
of P. grahamii is estimated at approximately 6,200 individuals (Shultz 
and Mutz 1979a, pp. 38-42; Shultz and Mutz 1979b, pp. 25-38; Neese and 
Smith 1982a, pp. 63-66; Neese and Smith 1982b, pp. 115-140; Borland 
1987, p. 1; Franklin 1993, Appendix D; Franklin 1995, Appendix B; 
Colorado NHP 2005, pp. 1-20; Utah NHP 2005, pp. 1-124; Service 2005, 
pp. 1-13; Decker et al. 2006, pp. 3-10). Approximately 60 percent of 
the species' population is on Bureau of Land Management (BLM) managed 
land with the remainder on non-Federal lands with State and private 
ownership. The five population habitat units are described in the 
following paragraphs.
    The westernmost Penstemon grahamii population habitat unit, named 
the Sand Wash Unit (Unit A), occurs in the vicinity of Sand Wash in 
southwestern Uintah and adjacent Carbon and Duchesne Counties, Utah. 
This population habitat unit consists of 10 separate occurrences with a 
population estimated at 135 individuals (Shultz and Mutz 1979b, pp. 37-
38; Franklin 1993, Appendix D; Utah NHP 2005, pp. 1-4, 21-24, 45-52, 
65-80; Service 2005, pp. 1-13). This unit has relatively small numbers 
(approximately 2 percent of the species' total) compared to those 
population habitat units in the center of the species' range. The unit 
is the most isolated of the species' population habitat units. This 
portion of the species' population has minor morphological differences 
from the remainder of its population and may, due to geographic 
isolation, be genetically divergent from the remainder of the species' 
population (Shultz and Mutz 1979a, p. 41).
    A second population habitat unit, named the Seep Ridge Unit (Unit 
B), occurs approximately 27 km (17 mi) east of the Sand Wash Unit in 
the Willow and Bitter Creek drainages in the vicinity of Sunday School 
Canyon near the Seep Ridge road in south central Uintah County, Utah. 
This unit consists of 53 separate occurrences with an estimated 
population of 3,200 individuals (Shultz and Mutz 1979b, pp. 25-39; Utah 
NHP 2005, pp. 5-20, 25-28, 53-56, 61-64, 85-100; Service 2005, pp. 1-
13). This population habitat unit is the species' largest with 
approximately 52 percent of the species' total population.
    A third population habitat unit, named the Evacuation Creek Unit 
(Unit C), occurs approximately 16 km (10 mi) east of the Seep Ridge 
Unit in the Asphalt Wash and Evacuation Creek drainages near the 
abandoned Gilsonite mining towns of Dragon and Rainbow. This unit is in 
southeastern Uintah County, Utah, and adjacent Rio Blanco County, 
Colorado, and consists of 31 separate occurrences with an estimated 
population of 2,550 individuals (Neese and Smith 1982b, pp. 115-133, 
137-140; Franklin 1995, Appendix B, Map 3; Utah NHP 2005, pp. 29-32, 
37-44, 57-60, 81-84, 113-120; Service 2005, pp. 1-13). This population 
habitat unit is

[[Page 76025]]

the species' second largest with approximately 41 percent of the 
species' total population.
    A fourth population habitat unit, named the White River Unit (Unit 
D), occurs approximately 8 km (5 mi) north of the Evacuation Creek Unit 
in Hells Hole and Weaver Canyons immediately south of the White River. 
This unit is in eastern Uintah County, Utah, and consists of 9 separate 
occurrences with an estimated population of 115 individuals (Neese and 
Smith 1982b, pp. 134-136; Franklin 1995, Appendix B, Maps 5-8; Utah NHP 
2005, pp. 33-36, 101-112, 121-124; Service 2005, pp. 1-13). This 
population habitat unit is the species' smallest, with approximately 2 
percent of the species' total. The unit is important as a link between 
the largest population habitat units to the south and southwest and the 
Colorado population to the northeast.
    A fifth population habitat unit, named the Raven Ridge Unit (Unit 
E), occurs approximately 11 km (7 mi) northeast of the White River Unit 
along the west flank of Raven Ridge and north of the White River 
between Raven Ridge and the Utah border in extreme western Rio Blanco 
County, Colorado. This unit consists of 6 separate occurrences with an 
estimated population of 200 individuals (Borland 1987, p. 1; Colorado 
NHP 2005, pp. 1-20; Service 2005, pp. 1-13). The population habitat 
unit harbors approximately 3 percent of the species' total population 
and includes virtually the species' entire population in Colorado (a 
portion of a small population occurs in at the eastern margin of the 
Evacuation Creek Unit at the Colorado-Utah border). As in the case of 
the Sand Wash Unit, the Raven Ridge Unit is at the extreme end of the 
species' range. As such this population is important for its 
representation of a portion of the full spectrum of the species' 
genetic diversity.
    Penstemon grahamii habitat is a discontinuous series of exposed raw 
shale knolls and slopes derived from the Parachute Creek and Evacuation 
Creek members of the geologic Green River Formation. Most populations 
are associated with the surface exposure of the petroleum bearing oil-
shale Mahogany ledge (Cashion 1967, p. 31, Fig. 8; Shultz and Mutz 
1979a, pp. 39-40; Neese and Smith 1982a, p. 64; Franklin 1993, Appendix 
D; Franklin 1995, Appendix B). The trace of the Mahogany bed correlates 
very closely with the trace of Penstemon grahamii sites from the 
vicinity of Sand Wash near the Green River to Raven Ridge near the 
White River (Cashion 1967, p. 31, Fig. 8; Shultz and Mutz 1979a, pp. 
39-40; Neese and Smith 1982a, p. 64; Decker et al. 2006, pp. 3-10).
    Penstemon grahamii is associated with a suite of species similarly 
adapted to xeric growing conditions on highly basic calcareous shale 
soils. The vascular plant species most commonly associated with P. 
grahamii are listed in the proposed rule (71 FR 3158). The plant 
community associated with P. grahamii forms a distinctive assemblage of 
plant species dominated by dwarf shrubs and mound-forming perennial 
herbaceous plants with relatively low plant cover. This plant community 
forms small patches within the broader plant communities that 
characterize the southeastern Uinta Basin (Shultz and Mutz 1979a, p. 
40; Neese and Smith 1982a, p. 63; BLM 2005, pp. 3-105 to 3-109; Graham 
1937, pp. 43-47, 59-71). Pollinators of Penstemon grahamii are listed 
in the proposed rule (71 FR 3158).
    The Colorado NHP has assigned Penstemon grahamii a global 
imperilment ranking of G2 and State imperilment ranking of S1. The Utah 
NHP has assigned Penstemon grahamii a global imperilment ranking of G2 
and State imperilment rankings of S2. The G2 and S2 rankings mean the 
species is imperiled at Global and State levels respectively. An S1 
ranking means the species is critically imperiled at a State level. 
These rankings, developed by The Nature Conservancy, and applied by 
various NHPs associated with State governments, are utilized by the 
Service in selecting candidate species and by the BLM in selecting 
``Special Status Species'' for enhanced conservation actions and 
resource planning. The International Union for the Conservation of 
Nature has given the species a ranking of ``Vulnerable.''

Previous Federal Actions

    The history of Penstemon grahamii as a candidate species under the 
Act is recounted in detail in the proposed rule (71 FR 3158). It has 
been a candidate for listing since 1980 (December 15, 1980; 45 FR 
82480).
    Penstemon grahamii was petitioned three times for listing as 
endangered or threatened under the provisions of the Act. The first 
petition was the initial Smithsonian list of 1975 (see above). The 
second petition was the Fund for Animals' petition of 1990. This 
petition included 401 species the Service had assigned category 1 
status in its previous notices of review. On October 8, 2002, we 
received a petition specifically for P. grahamii from five separate 
parties--Center for Native Ecosystems, Southern Utah Wilderness 
Alliance, Utah Native Plant Society, Colorado Native Plant Society, and 
American Lands Alliance. This ``second'' petition reiterated biological 
information and information on increased levels of threat that, for the 
most part, was already in our files.
    A court settlement required us to submit a proposed rule to list 
Penstemon grahamii to the Federal Register by January 9, 2006. Our 
proposed rule to list P. grahamii as threatened with a proposed 
designation of critical habitat was published in the Federal Register 
on January 19, 2006 (71 FR 3158). The proposed rule announced a 60-day 
public comment period ending on March 20, 2006. During the public 
comment period we received a request for a public hearing and an 
extension of the public comment period. We announced the reopening of 
the public comment period and notice of a public hearing in the Federal 
Register on April 13, 2006 (71 FR 19158). The public comment period was 
extended to May 19, 2006, and a public hearing was held at the Uintah 
County Building, in Vernal, Utah, on April 26, 2006.

Summary of Comments and Recommendations

    During the open public comment periods between January 19 and March 
20, 2006, and April 13 and May 19, 2006, we requested all interested 
parties to submit information pertaining to both the proposed listing 
and critical habitat. We also sought specific information on any 
available preliminary results from the recent lease nominations for 
research, development, and demonstration of oil-shale recovery 
technologies on BLM lands; success of ongoing oil-shale or tar-sands 
development projects, particularly in the Green River formation; 
available economic and technological analyses; and specific information 
detailing definitive effects of these operations on environmental 
resources, as primarily related to losses of individual plants, loss or 
fragmentation of the habitat, and loss or declines in plant 
pollinators. Similarly, the Energy Policy Act sets the stage for 
increased oil and gas drilling activities within Penstemon grahamii 
habitat, so we requested information specific to ongoing or proposed 
actions in these areas.
    The BLM provided us with substantial information concerning: 
current and projected energy development; grazing use and management; 
off-road vehicle (ORV) use and management; exotic species (weeds) 
control activities; wildland fire control actions; and the potential 
for horticultural collection. In addition,

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BLM provided planning and regulatory direction it will use to ensure 
the conservation of the species as a consequence of any future 
development of oil-shale or tar-sands that may affect the species. As a 
consequence we have relied heavily on BLM's comments in this final 
notice withdrawing the proposed rule to list P. grahamii as threatened, 
incorporating the information it provided within our analysis of 
threats.

Peer Review

    In accordance with our July 1, 1994, Interagency Cooperative Policy 
on Peer Review (59 FR 34270), we requested the expert opinions of six 
independent specialists regarding pertinent scientific or commercial 
data and assumptions relating to supportive biological and ecological 
information in the proposed rule. The purpose of such a review is to 
ensure that the listing decision is based on scientifically sound data, 
assumptions, and analyses, including input of appropriate experts and 
specialists.
    The six experts we requested to review the proposed rule were 
selected on the basis of their expertise on Penstemon grahamii natural 
history and ecology. We requested that they review the proposed rule 
and provide any relevant scientific data relating to taxonomy, 
distribution, population status, or the supporting biological and 
ecological data used in our analyses of the listing factors. We 
specifically requested information responding to the following six 
questions. (1) Is our description and analysis of the biology, 
population, and distribution of P. grahamii accurate? (2) Does the 
proposed rule provide accurate and adequate review and analysis of the 
factors relating to the threats to the P. grahamii (A. The present or 
threatened destruction, modification, or curtailment of its habitat, B. 
Overutilization for commercial, sporting, scientific, or educational 
purposes, C. Disease and predation, D. Adequate regulatory mechanisms, 
and, E. Any other natural or man made factors affecting is continued 
existence)? (3) Are our assumptions and definition of suitable habitat 
logical and adequate? (4) Is our delineation and proposal of critical 
habitat for this species appropriate? (5) Are the conclusions we reach 
logical and supported by the evidence we provide? (6) Did we include 
all the necessary and pertinent literature to support our assumptions/
arguments/conclusions?
    Three of the six provided comments during the initial peer review 
process. All three provided information to correct, clarify, or support 
statements contained in the proposed rule. We have incorporated their 
comments into the final determination, as appropriate. The three 
responding peer reviewers stated that all six of the questions asked 
were adequately addressed in the proposed rule. One reviewer noted that 
our proposed critical habitat included only existing populations, and 
therefore provided a conservative estimate of potential habitat. This 
same reviewer also agreed that current oil and gas activity appears to 
provide little adverse affect to the species, but future increase in 
the density of conventional oil and gas wells and the inevitable 
development of oil-shale extraction projects would be problematic.
    Another peer reviewer stated that Penstemon grahamii is clearly a 
narrowly restricted, globally rare species, but most of the information 
on the species in Colorado is not current. A lack of recent surveys has 
resulted in uncertainty about its distribution and population size. He 
concluded that even if future surveys revealed robust populations, the 
types of threats faced by the species would result in a need for 
habitat protection.
    The third peer reviewer stated that, in her opinion, ``* * * the 
effect of livestock grazing is an additional source of stress for a 
species already grappling with a stressful environment.'' Therefore, 
studies of the effects of livestock and wildlife exclosures on plant 
vigor and reproduction should be a high priority if the species is 
listed. She also felt that the degree of protection provided to 
Penstemon grahamii by BLM's Area of Critical Environmental Concern 
designations is variable and inconsistent.
    Although the peer reviewers felt that our proposed listing rule 
justified listing, based on the new scientific and commercial 
information concerning the species' status received during the comment 
period, we have determined that Penstemon grahamii does not currently 
warrant protection under the Act.

Summary of Public Comments and Recommendations

    During the public comment periods, we received written comments 
from 37 entities. Twenty-two entities advocated listing of the species, 
12 entities advocated not listing the species, and 3 entities did not 
advocate either listing position. The public comments received and our 
responses are summarized below. Comments that contained new, updated, 
or additional information were thoroughly considered in this final 
determination. We received a large number of identical or similar 
comments, and we consolidated those into several categories.

Comments Related to Energy Development Impacts to the Species and Its 
Habitat

    Comment 1--No overlap exists between current, proposed, and 
potential future oil-shale/tar-sands development and species' habitat.
    Our Response--We evaluated the potential for oil-shale and tar-
sands development to impact Penstemon grahamii based largely on the 
plant's dependence on oil-shale geologic strata. There are no ongoing 
commercial oil-shale or tar-sands activities on Federal lands in the 
Uinta Basin, Green River formation. We acknowledge that the exact 
location and extent of future oil-shale or tar-sands commercial 
development in the Uinta Basin is unknown, and we have considered 
information from BLM regarding--1) the higher likelihood that oil-shale 
would progress, at least initially, in the Piceance Basin, Colorado, 
approximately 30 miles east of known P. grahamii occurrences and 2) 
geologic information depicting mineral development potential compared 
to known P. grahamii habitats. Approved nominations under the BLM oil-
shale Research, Development, and Demonstration (RD&D) program also do 
not overlap known P. grahamii habitat.
    Comment 2--A high level of technological and economic uncertainty 
exists for future oil-shale and tar-sands development.
    Our Response--We acknowledge there is a high level of technological 
and economic uncertainty, and that commercial oil-shale or tar-sands 
development is only a potential future prospect, likely many years 
away. We have included this information in our analysis.
    Comment 3--Even if industry's interest in oil-shale mining 
eventually moved near Penstemon grahamii occurrences, experience shows 
that industry would likely propose underground mining techniques, or 
one or more of various in-situ recovery processes. There is 
considerable flexibility in siting access shafts and supporting surface 
facilities for an underground mine or in-situ development and they can 
easily be placed to avoid critical surface resource areas.
    Our Response--We acknowledge that there is a high level of 
technological uncertainty regarding commercial oil-shale development. 
Until more specific technological decisions are made, it is not 
feasible for us to make conclusions

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regarding the actual effects oil-shale mining may have on Penstemon 
grahamii and its habitat. The different mining technologies are 
discussed in our analysis. However, we strongly recommend that BLM 
continue to evaluate technological processes and devise appropriate 
conservation measures if commercial development progresses in the 
future.
    Comment 4--The GIS analysis supports the concept that engineering 
and economics generally keep oil and gas wells out of Penstemon 
grahamii habitat. In addition, BLM and industry have implemented 
species inventories and avoid special status plant species and their 
habitats.
    Our Response--Our evaluation concluded that oil and gas wells, to 
date, have not been located directly on known Penstemon grahamii 
locations. We encourage BLM and the energy industry to implement 
appropriate technologies and conservation measures to avoid development 
that may threaten the species and its habitat in the future.
    Comment 5--Several conventional oil and gas exploratory and field 
development projects are proposed or underway in or near occupied 
Penstemon grahamii habitat, including--the Resource Development Group, 
GASCO, Dominion Kings Canyon project, Enduring Resource Big Pack 
project, MakJ Little Canon/Bick Pack Mountain field development 
project, Pioneer Park Ridge 3D Seismic project, and Columbine 3D 
seismic project.
    Our Response--We have included an evaluation of these projects in 
our analysis and concluded that they do not significantly affect 
Penstemon grahamii or its occupied habitat. See our discussion of the 
impacts of oil and gas exploration and development in the Summary of 
Factors Affecting the Species section.
    Comment 6--Industry has historically demonstrated no interest in 
surface mining the Mahogany outcrops. There is no evidence that 
potential, foreseeable oil-shale development would occur in the 
vicinity of the Mahogany ledge outcrops.
    Our Response--We have evaluated the information presented and agree 
that there is no current active interest, to date, for oil-shale 
development along the Mahogany zone in Penstemon grahamii habitat. 
Technological and economic uncertainties exist to the extent that we 
cannot conclude that there is a certainty of future threats in this 
area.
    Comment 7--Most Penstemon grahamii are located on a bed of 
petroleum bearing oil-shale in Utah and Colorado. Ninety-eight percent 
of P. grahamii individuals are located in the Parachute Creek member of 
the Green River formation. The Parachute Creek member is the most 
important area in regard to oil-shale. The entire range of P. grahamii 
also is sitting on deposits of natural gas.
    Our Response--We have analyzed the distribution of Penstemon 
grahamii relative to the potential for energy development. Significant 
economic questions remain concerning the development of the Green River 
formation oil-shale and tar-sands. There are currently no development 
projects for this resource proposed anywhere within the known range of 
P. grahamii, or anywhere else in the United States. We have included a 
detailed analysis of potential impacts of oil-shale and tar-sands 
development, and the current and future impacts of conventional natural 
gas drilling and production in the Summary of Factors Affecting the 
Species section.
    Comment 8--Oil-shale processing has been attempted many times all 
over the world with the same result--failure. The processing of oil-
shale is far too expensive to be economical. Although the technology 
for the oil-shale processing may not be quite ready, the potential for 
it is very real.
    Our Response--We acknowledge the technological and economic 
uncertainty associated with oil-shale development. Until and unless 
technology advances and commercial oil-shale development plans are 
proposed, it is inappropriate for us to speculate on the potential 
scale and distribution of commercial oil-shale development.
    Comment 9--Commenters provided information regarding the current 
and projected future increases in oil and gas development in the Vernal 
BLM Field Office area respective to the proposed critical habitat 
units.
    Our Response--We have evaluated ongoing and proposed energy 
development and potential impacts to Penstemon grahamii in our finding. 
We acknowledge the current and projected increases in oil and gas 
exploration and development in the Uinta Basin. We have addressed 
energy exploration and development in our final rule. Our analysis of 
the best available scientific and commercial data reveals that P. 
grahamii is not warranted for listing under the Act.
    Comment 10--Shell's Mahogany Project in the Piceance Basin provides 
a glimpse of what surface impacts using in-situ methods would look 
like--100 percent surface disturbance. Images posted on the 
SkyTruth.org Web site show impacts at an oil-shale operation in 
Australia that show complete surface disturbance.
    Our Response--We acknowledge the potential impacts of oil-shale 
mining to Penstemon grahamii habitat, if this mining occurs in habitat 
occupied by the species. However, we do not have information to 
conclude that oil-shale mining will occur in P. grahamii habitat.
    Comment 11--The Department of the Interior may attempt to argue 
that until oil-shale development is shown to be technically and 
economically viable on a commercial scale, it should not be considered 
a real threat. However, this ignores the fact that members of Congress 
are actively interested in forcing the BLM to lease large portions of 
the oil-shale resource now before RD&D projects begin, and that any 
analysis of economic feasibility must factor in the possibility that 
the government may be willing to heavily subsidize this experiment. The 
Service must recognize that interest in oil-shale will not go away as 
long as oil is valuable. The Service must list now because oil-shale 
poses an extremely high magnitude threat to Penstemon grahamii and 
Congress has made that threat more imminent today than it has been in 
the past decades.
    Our Response--We acknowledge the potential impacts of oil-shale 
mining to Penstemon grahamii if this mining occurs in habitat occupied 
by the species. However, we do not have information to conclude that 
oil-shale mining will occur in P. grahamii habitat.
    Comment 12--Several comments described the direct, indirect, and 
cumulative environmental impacts associated with oil-shale mining.
    Our Response--We acknowledge the potential effects of oil-shale 
development on Penstemon grahamii. We have evaluated the threat of oil-
shale mining in our finding.
    Comment 13--Shell Frontier Oil and Gas Corporation's proprietary 
In-situ Conversion Process (ICP) uses subsurface heating to convert 
kerogen contained in oil-shale into ultra-clean transportation fuels 
and gas. Shell's ICP is more environmentally friendly and more 
efficient than previous oil-shale efforts. It recovers the resources 
without conventional mining, uses less water, and does not generate 
large tailing piles.
    Our Response--Our finding discusses various technologies for 
commercial oil-shale mining. Certainly any processes that also provide 
environmental protections are preferred. We also acknowledge that 
technologies are still being developed for oil-shale mining and the 
location and extent of

[[Page 76028]]

commercial oil-shale mining is still uncertain.
    Comment 14--The proposed rule, if finalized, will impede, if not 
completely proscribe, oil-shale development in areas occupied by 
Penstemon grahamii.
    Our Response--Our determination that this species does not warrant 
listing under the Act is based on our assessment of the threats to the 
species, as they are known at the time of the decision, not the 
potential land management implications of listing. We have evaluated 
the potential impacts of oil-shale mining in this finding.
    Comment 15--There are no present threats to the viability of the 
species, either listed in the proposed rule or otherwise known. The 
threats listed in the proposed rule are all perceived future threats, 
not current activities.
    Our Response--We concur that potential threats to Penstemon 
grahamii from oil-shale and tar-sands development described in the 
proposed rule were speculative, although based on the best information 
available to the Service. Our analysis in this final rule, based on 
information received after publication of the proposed rule, recognizes 
that current impacts to the species from oil and gas development do not 
rise to level to warrant listing now or for the reasonably foreseeable 
future.
    Comment 16--Destruction of Penstemon grahamii habitat is 
irrevocable. We should not take irrevocable action for the sake of 
short-term economic benefit.
    Our Response--We have evaluated threats to Penstemon grahamii and 
its habitat in our finding. Our determination as to whether or not this 
species warrants listing under the Act must be based on our assessment 
of the threats to the species as they are known at the time of the 
decision.
    Comment 17--Boom and bust energy cycles have occurred in Uintah 
County for the past 75 years. Penstemon grahamii has continued to 
flourish.
    Our Response--Our finding has taken into consideration the known 
species' population status and trends, as well as the potential threat 
of energy development.

Comments Related to Inadequacy of Existing Regulatory Mechanisms

    Comment 18--Existing regulatory mechanisms, including the Energy 
Regulatory Act of 2005, are available to protect Penstemon grahamii 
from mineral development as well as other land use activities.
    Our Response--We acknowledge that regulatory mechanisms and 
policies exist to incorporate conservation measures for this species in 
oil-shale or tar-sands commercial leasing programs. Regulatory 
mechanisms and policies also are available for other land-use 
activities.
    Comment 19--Combined hydrocarbon leases (e.g., conventional oil and 
gas along with tar-sands) have been issued to some extent prior to the 
Energy Policy Act of 2005. There was no real restriction to leasing in 
these areas as portrayed in the Service's proposed rule (71 FR 3158).
    Our Response--We acknowledge there was some opportunity for oil and 
gas leasing prior to the Energy Policy Act of 2005. Energy Policy Act 
provisions alleviate some of the prior restrictions of oil and gas 
leasing in the tar-sands areas.
    Comment 20--Without listing, the BLM can only require that proposed 
facilities be moved 200 meters (m) (656 feet (ft)) or less, unless 
special stipulations have been attached to the lease. Even if one were 
able to preclude direct habitat loss under the 200-m (656-ft) 
limitation, substantial cumulative indirect effects and habitat 
fragmentation are likely to occur if one is simply shuffling 
disturbance around well by well, rather than actively conserving 
critical habitat.
    Our Response--We have considered existing regulatory mechanisms and 
management activities in this finding, and determined that conventional 
oil and gas development lease stipulations provide sufficient 
conservation measures to prevent extinction of Penstemon grahamii.
    Comment 21--The State of Utah supports the implementation of a 
Conservation Agreement for the Graham's beardtongue. Implementation of 
a Conservation Agreement will allow for better species' inventory, the 
opportunity to protect important habitats, and the opportunity to 
reduce potential threats to the species.
    Our Response--Our analysis of the best available scientific and 
commercial data indicates that listing Penstemon grahamii under the Act 
is not warranted at this time. Therefore, it was not necessary to 
further evaluate conservation efforts associated with a Conservation 
Agreement. We encourage continued development and implementation of 
conservation measures and a Conservation Agreement to protect and 
enhance P. grahamii and its habitat.

Comments Related to Other Threat Factors

    Comment 22--Information was provided regarding evaluations and 
conservation measures applied to grazing allotments in Penstemon 
grahamii habitat.
    Our Response--We concluded that grazing does not appear to be a 
species level threat to Penstemon grahamii, and our rationale is 
presented in the Summary of Factors Affecting the Species section. We 
encourage continued monitoring and conservation efforts to ensure 
grazing effects remain minimal in the future.
    Comment 23--Information was provided regarding off-road vehicle 
(ORV) use and available conservation measures to avoid and minimize 
impacts to Penstemon grahamii.
    Our Response--We have no information to indicate that ORV use is a 
threat to Penstemon grahamii or its habitat. To date, little ORV use 
has been observed in the species' range. We encourage continued 
monitoring and conservation efforts to ensure ORV effects remain 
negligible in the future.
    Comment 24--Overexploitation for horticultural purposes is a threat 
to Penstemon grahamii.
    Our Response--We acknowledge that the rarity and beauty of this 
species makes collection a potential concern. However, we have no 
information to conclude that collection is impacting wild populations 
in the species' native habitat. We encourage continued monitoring and 
conservation efforts to ensure horticultural collection remains a 
negligible impact in the future.
    Comment 25--Penstemon grahamii may be at greater risk because of a 
reduced ability to form a large seed bank to act as a buffer in the 
face of population decline, whether this decline is weather-related or 
caused by anthropogenic disturbance.
    Our Response--Information pertaining to the status, life history, 
and distribution of Penstemon grahamii has been reviewed and 
incorporated into our analysis. We have noted the presence of small 
population sizes at specific locations, but we do not believe that the 
threats to the species rise to a level that listing is warranted.
    Comment 26--Other concerns of increased energy development 
activities in Penstemon grahamii habitat are the incidental spread of 
noxious and exotic weeds and soil erosion, leading to decreased plant 
and insect (pollinator) biodiversity.
    Our Response--We acknowledge the presence of exotic weeds within 
occupied Penstemon grahamii habitat, including Bromus tectorum 
(cheatgrass) and Halogeton glomeratus (halogeton). Habitat disturbances 
associated with future energy development activities could exacerbate 
the situation. We encourage the development and

[[Page 76029]]

implementation of conservation efforts to minimize the invasion of 
exotic weed species.
    Comment 27--The notice fails to provide any scientific evidence 
that disease and predation are threats to the species.
    Our Response--We have identified that grazing may affect certain 
populations of Penstemon grahamii (see discussion in Factor A in the 
Factors Affecting the Species section), but we determined that grazing 
is not a threat to the species as a whole. Therefore, we determined 
that disease and predation do not constitute threats to the continued 
existence of P. grahamii.
    Comment 28--The species responds to cultivation and proliferates in 
habitats other than its natural habitat and, therefore, is capable of 
being cultivated for use in reclamation and revegetation.
    Our Response--It is true that the species has been cultivated as a 
garden plant, and is available for sale in catalogs and on the 
Internet. Propagation in the wild may be explored at a future date, but 
on an experimental basis. We do not have information at this time to 
conclude that populations propagated in the wild will be viable in the 
long-term. Until this information is available, we would not rely on 
restoration or revegetation of this species from a cultivated source.

Comments Related to the Biology of the Species

    Comment 29--Green River outcrops support a number of rare species 
of special concern. The edaphic features of Green River outcrops are 
natural laboratories of evolution and endemism, and should be 
preserved.
    Our Response--We concur that the Green River outcrops have 
significant ecological and evolutionary values. However, our evaluation 
of threats under the Act's criteria is restricted to Penstemon 
grahamii. This final rule does not evaluate other species associated 
with the Green River formation.
    Comment 30--The limited distribution and highly specific habitat 
requirements of this species make it a valuable component of the Utah 
flora and highly vulnerable to disturbance.
    Our Response--We concur that this species is a valuable component 
of the Utah flora. We considered the habitat requirements and threats 
to this species in our finding, and determined that the level of 
threats to Penstemon grahamii were insufficient to warrant listing.
    Comment 31--Penstemon grahamii habitat requirements make 
restoration/ reclamation of the species extremely difficult, if not 
impossible, if energy developments were to impact any of the known 
populations.
    Our Response--Our finding has evaluated the potential threats of 
energy development to Penstemon grahamii.
    Comment 32--Listing under the Act results in important protections 
for listed species threatened with development. Unlisted species may 
receive some consideration, but no real protection in the face of 
pressure to develop energy resources.
    Our Response--Our decision regarding Penstemon grahamii is based on 
the best available scientific and commercial data, as required by the 
Act. Our determination regarding whether or not this species warrants 
listing under the Act must be based on our assessment of the threats to 
the species at the time of the decision. We evaluated the threat of 
energy development, and the effectiveness of regulatory mechanisms in 
this finding.
    Comment 33--A few comments expressed concern about Penstemon 
grahamii's low population numbers and low and declining seed set 
numbers, as a result of substantial herbivory and livestock trampling. 
The Nature Conservancy's eco-regional assessments confirm that P. 
grahamii, with very low natural population numbers and restricted 
distribution, is at risk.
    Our Response--Information pertaining to the status, life history, 
and distribution of Penstemon grahamii has been reviewed and 
incorporated in our analysis. We have noted the presence of small 
population sizes at specific locations, and the potential for threats 
to have negative impacts if they occur. The referenced study sites are 
small, and do not provide sufficient information on threats to conclude 
that Penstemon grahamii warrants listing. Although additional studies 
may be desirable, we have made our decision based on the best available 
scientific and commercial data, as required by the Act.
    Comment 34--The extinction of Penstemon grahamii would undoubtedly 
affect the only specialist wasp, Pseudomasaris vespoides, which feeds 
its offspring exclusively on Penstemon pollen. This wasp should be the 
subject of further study.
    Our Response--Our evaluation is restricted to Penstemon grahamii, 
which we have determined does not warrant listing under the Act. The 
wasp is a specialist on most species of Penstemon. Other Penstemon 
species occur within the range of P. grahamii and are apparently 
supporting Pseudomasaris vespoides populations.
    Comment 35--This species may be valuable for a cure to cancer or 
some other disease.
    Our Response--Many plant species have provided important advances 
in medicine. However, our determination regarding whether or not this 
species warrants listing under the Act must be based on our assessment 
of the threats to the species, as they are known at the time of the 
decision.
    Comment 36--Current and historic population trend data do not show 
any decline in the population of Penstemon grahamii.
    Our Response--We evaluated available population status and trend 
information for the species in this finding.
    Comment 37--Penstemon grahamii habitat is not dependent on oil-
shale as represented. The association with oil-shale may be 
coincidental, and there is a substantial likelihood that the species' 
distribution is more widespread than presented in the proposed rule.
    Our Response--We cite several sources that indicate Penstemon 
grahamii is associated with oil-shale outcrops. We are not aware of any 
data indicating that the species is more widely distributed than as we 
described in the proposed rule and this document.
    Comment 38--Oil and gas operations are typically able to avoid 
individual plants.
    Our Response--Our finding has evaluated the threat of energy 
development to Penstemon grahamii. We encourage development and 
implementation of conservation efforts to avoid impacts to P. grahamii 
and its habitat.
    Comment 39--There is no clear evidence that the species' 
environment is as fragmented as is implied by the delineation of the 
units.
    Our Response--Our decision regarding Penstemon grahamii is based on 
the best available scientific and commercial data, as required by the 
Act. We have described the species' known distribution and provided 
citations for this information in our finding.
    Comment 40--There are areas in Uintah County that have shown no 
previous signs of this plant. However when the ground has been 
disturbed, followed by a rainfall, the plant has flourished. Listing 
this plant to prevent disturbance in the area, seems to defeat the 
natural course of growth, which includes ground disturbance and water.
    Our Response--To our knowledge the potential for land disturbance 
to facilitate Penstemon grahamii conservation has not been studied. 
However, we have no documentation of this species responding favorably 
to

[[Page 76030]]

disturbance as described above. Observations of biologists studying 
this species have not shown any such response to surface disturbance, 
and we provide a detailed description of the species' habitat 
requirements in the Background section of this document.
    Comment 41--Penstemon grahamii must be considered extremely rare 
whether considered at the global, national, State, or county level.
    Our Response--Rarity in and of itself does not automatically lead 
to listing. Our determination of whether or not listing this species 
under the Act is warranted must be based on our assessment of the 
threats to the species, as they are known at the time of the decision.

Comments Related to General Listing Issues Under the Act

    Comment 42--The various Federal Register notices are deficient in 
that they do not identify, other than by author, name, and year, the 
references on which they rely. The Administrative Procedures Act and 
other authorities require a reasonable opportunity to comment on 
proposed rules. The publications and page numbers at which the 
references appear could easily have been included in one of the 
notices.
    Our Response--We have included page numbers with citations in this 
notice, and the list of references and the references themselves are 
available for inspection at our Utah Field Office (see ADDRESSES 
section).
    Comment 43--Several commenters supported the proposal to list 
Penstemon grahamii and designate critical habitat, based on the 
species' status and the threats analysis presented in the proposed 
rule.
    Our Response--We have reevaluated the best available scientific and 
commercial data, based on information received during the public 
comment period, and have determined that the threats to Penstemon 
grahamii described in the proposed rule are not sufficient to warrant 
listing under the Act at this time. Our analysis is presented in the 
Summary of Factors Affecting the Species section.
    Comment 44--A commenter felt that listing of this species is not 
warranted.
    Our Response--We have considered all factors potentially affecting 
Penstemon grahamii in our decision and determined that the listing is 
not warranted. We have made our decision based on the best available 
scientific and commercial data, as required by the Act.
    Comment 45--Penstemon grahamii meets all five requirements to be 
listed as a threatened species.
    Our Response--Our analysis of the best available scientific and 
commercial data determined that listing Penstemon grahamii is not 
warranted at this time. Our analyses and conclusions are described in 
detail in the Summary of Factors Affecting the Species section.
    Comment 46--The U.S. House of Representatives has passed House Bill 
3824, which will amend the Act and repeal critical habitat 
requirements. The Service should delay any listing decisions until a 
final determination is made on this legislation.
    Our Response--The Act requires that we finalize proposed listings 
within 12 months of publication. In this case, we also are responding 
to a court-approved settlement agreement to complete a listing 
determination by December 8, 2006. Therefore, we are unable to postpone 
completion of this listing decision.
    Comment 47--Listing Penstemon grahamii now could protect against 
the most damaging projects in its habitat, and allow for recovery.
    Our Response--Our decision regarding Penstemon grahamii is a 
listing, not a recovery decision. Our determination of whether or not 
this species warrants listing under the Act must be based on our 
assessment of the threats to the species, as they are known at the time 
of the decision, not the potential for recovery under the Act.
    Comment 48--If listing is denied, the little extra attention that 
Penstemon grahamii has received based on its candidate status will 
disappear.
    Our Response--Candidate species are plants and animals for which 
the Service has sufficient information on their biological status and 
threats to propose them as endangered or threatened under the Act, but 
for which a proposed listing regulation is precluded by other higher 
priority listing activities. Candidate species receive no statutory 
protection under the Act. The BLM has designated Penstemon grahamii as 
a ``special status species'' and as such will provide strong 
consideration for the species in its land use planning and will 
implement measures to conserve the species and protect its habitat. The 
BLM has made an explicit commitment to conserve this species into the 
future, regardless of any energy or other development action within the 
species range (BLM 2001, 2006a p. 1-2). We encourage the formation of 
partnerships to conserve these species because they are, by definition, 
species that warrant future protection under the Act. Our decision not 
to list Penstemon grahamii removes the species from candidate status. 
However, P. grahamii retains its status as a BLM special status 
species. In addition, we are partnering with Federal and State agencies 
to develop and implement a Conservation Agreement for P. grahamii. This 
Conservation Agreement is not the basis for this withdrawal.
    Comment 49--If the plant is listed as threatened, the Service 
should adopt a special rule under section 4(d) of the Act that would 
provide that any energy development projects undertaken in accordance 
with BLM-mandated terms and conditions would not constitute a violation 
of any of the Act's plant-related prohibitions.
    Our Response--Our analysis of the best available scientific and 
commercial data determines that Penstemon grahamii is not warranted for 
listing under the Act.
    Comment 50--The proposed rule pays little attention to the best 
commercial data which, if considered, would provide both an estimate of 
the magnitude of the potential threats, and the adverse economic impact 
of listing Penstemon grahamii.
    Our Response--This final rule includes our analysis of the 
magnitude of potential threats to this species, and we have determined 
that these threats are not sufficient to warrant listing the species 
under the Act at this time. The Act does not include economic 
considerations as a factor in listing decisions.
    Comment 51--Listing under the Act ensures benign neglect of a 
species; it does nothing to proactively ensure proliferation of a 
species.
    Our Response--Our determination of whether or not this species 
warrants listing under the Act must be based on our assessment of the 
threats to the species, as they are known at the time of the decision, 
not whether listing would ensure the species' recovery.
    Comment 52--Costs to the Nation's economy and energy security can 
be avoided by withdrawal of the proposed rule, as warranted by the 
scientific and commercial evidence.
    Our Response--Our determination as to whether or not this species 
warrants listing under the Act must be based on our assessment of the 
threats to the species, as they are known at the time of the decision. 
The Act provides for evaluating economic considerations when 
designating critical habitat, but not when making listing 
determinations.
    Comment 53--A commenter disagreed with the statement on page 3173 
that the action is not a significant energy action.
    Our Response--Our analysis of the best available scientific and 
commercial data indicates that listing Penstemon

[[Page 76031]]

grahamii is not warranted at this time. Therefore, it was not necessary 
to further evaluate significant energy effects, or prepare an economic 
analysis for the designation of critical habitat.
    Comment 54--It appears that no attempt is being made to designate 
or restore all original habitats once occupied by this species.
    Our Response--The Act does not require restoration of all historic 
habitat for a listed species, nor does it require designation of all 
historic range as critical habitat. By determining that this species 
does not warrant listing we indicate that it is not in danger of 
becoming extinct throughout all or a significant portion of its range, 
or likely to become so in the foreseeable future.
    Comment 55--A recovery plan is not a part of the current proposal.
    Our Response--Recovery Plans are only completed for listed species 
under the Act. This current finding has determined that listing 
Penstemon grahamii under the Act is not warranted.

Comments Related to Agency Management of the Species

    Comment 56--The Energy Policy Act strengthens the BLM and Service 
capability to protect this species.
    Our Response--The 2005 Energy Policy Act resulted in increased 
staffing and funding levels for pilot project offices, including the 
Vernal BLM Field Office. We strongly encourage BLM to utilize these 
available resources to ensure long-term, successful conservation 
efforts for Penstemon grahamii and other listed and sensitive species 
during energy project planning and implementation.
    Comment 57--The BLM has done a poor job of protecting plant 
communities from rapid industrialization and lawless ORV use.
    Our Response--We considered potential threats, such as increased 
energy development and ORV use, in our finding, but we were unable to 
document threats from these activities that would warrant listing 
Penstemon grahamii.
    Comment 58--There is no assurance at this point that the BLM, 
through the Vernal Resource Management Plan (RMP), will provide 
adequate protection for Penstemon grahamii.
    Our Response--Our determination of whether or not this species 
warrants listing under the Act must be based on our assessment of the 
threats to the species, as they are known at the time of the decision. 
We understand that all action alternatives within the BLM's draft 
Vernal RMP commit the BLM to protect the populations and habitat of 
Special Status Species, including P. grahamii.
    Comment 59--The Act provides no authority to protect this plant on 
State or private lands. Therefore, it is that much more important to 
protect them on Federal lands.
    Our Response--Existing regulatory mechanisms were evaluated for our 
finding. We encourage Federal land management agencies to continue 
conservation efforts for Penstemon grahamii and its habitat. In 
addition we will work with both the State of Utah and private 
landowners to encourage voluntary measures to conserve viable 
populations of the species and its habitat on their properties.
    Comment 60--BLM has recently initiated survey and life history 
studies for Penstemon grahamii. Life history and survey data are out of 
date and may not accurately portray the species' distribution and 
abundance. Lack of information may affect the Service's decisions 
regarding critical habitat designation.
    Our Response--We agree that additional population status, 
distribution, and life history information would be useful to determine 
the status of the species and identification of critical habitat. 
However, as required by the Act, we have used the best scientific and 
commercial information available when making the determination on 
whether to list Penstemon grahamii.
    Comment 61--All action alternatives in the draft BLM Vernal RMP 
would lead to Penstemon grahamii being more imperiled.
    Our Response--The BLM has provided its commitment to continue 
implementation of effective conservation measures through the RMP to 
ensure long-term conservation of P. grahamii. Our analysis of the best 
available scientific and commercial data reveals that P. grahamii is 
not warranted for listing under the Act. We have evaluated existing 
regulatory mechanisms in our finding. All action alternatives within 
the BLM's draft RMP commit the BLM to protect the populations and 
habitat of Special Status Species, including P. grahamii. We have 
identified specific protective measures for the protection of P. 
grahamii which BLM will include in the final RMP and as stipulations in 
all subsequent mineral leases. (See discussion under listing Factors A 
and D below.)
    Comment 62--The BLM Vernal Field Office has continued to offer oil 
and gas lease parcels even though it is in the midst of a Plan 
revision, and the Service must consider that the areas unleased because 
of tar-sands development potential could be offered in any upcoming 
sale.
    Our Response--Our analysis assumes that leasing will occur in 
suitable tar-sands areas and other areas in the Uinta Basin. Leasing 
does not necessarily mean that an area will be developed for oil and 
gas. We have addressed the potential impacts of energy development to 
Penstemon grahamii in our finding, and determined that those impacts 
now and in the foreseeable future do not rise to the level that would 
warrant listing of the species.
    Comment 63--In the Castle Peak Environmental Impact Statement, the 
BLM was quite frank about not being able to impinge on valid, existing 
lease rights, and openly refused to require No Surface Occupancy within 
the Pariette Wetlands Area of Critical Environmental Concern (ACEC), 
even though (1) that was one of the expectations set forth in the 
biological opinion, and (2) Uinta Basin hookless cactus' (Sclerocactus 
glaucus) listed status should have allowed the agency to place 
additional constraints on those leases. The BLM White River Field 
Office also has permitted pipelines through ACECs designated for the 
Dudley Bluffs plants, in what appears to be direct contravention of the 
White River RMP.
    Our Response--This finding pertains to Penstemon grahamii, not 
other plant species in the area. Our analysis of the best available 
scientific and commercial data indicates that P. grahamii is not 
warranted for listing under the Act. We have considered existing 
regulatory mechanisms and management activities in this finding. The 
Service encourages the successful development and implementation of 
conservation measures for P. grahamii to maintain the species' status 
in the long-term.
    Comment 64--The BLM has provided very little in the way of 
conservation measures for Penstemon grahamii, despite its candidate 
status.
    Our Response--We have considered existing regulatory mechanisms and 
management activities in this finding, and determined that the impacts 
to Penstemon grahamii populations and habitat are not sufficient to 
warrant listing under the Act. This species has been a listing 
candidate for decades, and we have no evidence to indicate that current 
BLM management is resulting in serious impacts to populations of this 
species.

Comments Related to Critical Habitat

    Comment 65--There were numerous comments regarding the importance,

[[Page 76032]]

extent, and boundary lines regarding the proposed critical habitat 
designation.
    Our Response--We considered all factors potentially affecting 
Penstemon grahamii in our decision and we have determined that the 
listing is not warranted. Therefore, we are withdrawing our proposed 
critical habitat designation.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to Federal lists. We analyzed the threats applicable 
to the species in the present and foreseeable future to determine 
whether the species as a whole meets the definition of endangered or 
threatened due to one or more of the five factors described in section 
4(a)(1). The five factors considered and their application to P. 
grahamii are as follows:

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

Energy Resources
    Our proposed rule concluded that recent Federal policy direction, 
technological advances, world oil demand, and economics have renewed 
the desirability to invest in renewed energy development in Utah and 
Colorado. However, based on comments received on the proposed rule, it 
appears that the development of oil-shale and tar-sands resources in 
Penstemon grahamii habitat is not likely to occur, if it occurs at all, 
until at least 20 years into the future.
    Penstemon grahamii has been listed as a candidate species since 
1980, in part due to the potential threat of increased energy 
development (Service 2004). The habitat of P. grahamii is a series of 
knolls and slopes of raw oil-shale derived from the Green River 
geologic formation (Shultz and Mutz 1979a, pp. 38-42; Shultz and Mutz 
1979b, pp. 25-38; Neese and Smith 1982a, pp. 63-66; Neese and Smith 
1982b, pp. 115-140; Borland 1987, p. 1; Franklin 1993, Appendix D; 
Franklin 1995, Appendix B; Colorado NHP 2005, pp. 1-20; Utah NHP 2005, 
pp. 1-124; Service 2005, pp. 1-13; Decker et al. 2006, pp. 3-10). Oil-
shale resources associated with the Green River formation underlie 
approximately 41,440 km\2\ (16,000 mi\2\) and represent the largest 
known concentration of oil-shale in the world with potential 
recoverable reserves in excess of 1 trillion barrels (Bartis et al. 
2005, pp. 5-7; Bunger et al. 2004 p. 1; Dyni 2003, pp. 241-245; Lonnie 
2005, pp. 1-3). P. grahamii only grows directly on weathered surface 
exposures of the oil-shale bearing strata in the Parachute member and 
closely associated strata, making the species vulnerable to impacts if 
that oil-shale strata is exploited in the future (Bartis 2005, pp. 35-
37; Cashion 1967, p. 31, Fig. 8; Johnson et al. 2004b. pp. 3-5; Service 
2005, p. 21; Shultz and Mutz 1979a, p. 42; Neese and Smith 1982a, pp. 
64-66).
    One hundred five of 109 (96 percent) Penstemon grahamii occurrences 
are in the Parachute Creek member of the Green River formation; the 
remaining 4 sites are in oil-shale strata of the Evacuation Creek 
member of the Green River formation (Service 2005, p. 21; Shultz and 
Mutz 1979a, p. 39; Neese and Smith 1982a, p. 64). Oil-shale beds are 
most numerous and important in the Parachute Member of the Green River 
formation (Cashion 1967, p. 13), but the underlying Evacuation Creek 
member also contains a few beds of oil-shale (Cashion 1967, p. 17). The 
105 occurrences in the Parachute Creek member harbor an estimated 6,100 
individuals or 98 percent of the species' estimated population of 6,200 
(Shultz and Mutz 1979a, pp. 38-42; Neese and Smith 1982a, pp. 63-66).
    There are no oil-shale or tar-sand development projects currently 
in operation or proposed within the known occupied habitat of Penstemon 
grahamii, or anywhere else in the United States (BLM 2006a, p. 13). The 
BLM projects that the oil-shale industry will focus its earliest 
commercial production efforts in the Piceance Basin, Colorado, about 
48.3 km (30 mi) from the nearest known P. grahamii occurrence (BLM, 
2006, pp. 14, 36). The Piceance Basin contains larger oil-shale 
deposits than the Uinta Basin in Utah. Deposits are more than 305 m 
(1,000 ft) thick in parts of the Piceance Basin and continuous across 
311 km\2\ (120 mi\2\) (BLM, 2006, p. 14).
    Initial industry interest appears to support BLM projections. In 
2005, the BLM received 20 proposals and applications for oil-shale 
Research, Development, and Demonstration (RD&D) leases on Federal lands 
in Colorado and Utah. None of these RD&D lease applications are within 
the occupied habitat of Penstemon grahamii (BLM 2006a, pp. 6, 12-13). 
The nearest is about 3.2 km (2 mi) southeast of known occurrences (on 
Green River shale barrens). Of the 20 RD&D lease application proposals, 
the BLM selected 6 for further consideration--5 are in Colorado in the 
Piceance Basin about 50 km (30 mi) east of the P. grahamii's population 
at Raven Ridge. The one Utah RD&D application still under review is 
located about 8 km (5 mi) west and 13 km (8 mi) north of the nearest P. 
grahamii occurrences in habitat not suitable for the species (BLM 
2006a, pp. 12-13, 15, 18-19, 34).
    Any future oil-shale development within the Uinta Basin nearest the 
range of Penstemon grahamii is expected to be associated with the 
thickest deposits of oil-shale, which occur about 8 km (5 mi) from the 
nearest occurrence of P. grahamii (BLM 2006a, pp. 12-13). These 
deposits occur in the vicinity of the aforementioned Utah RD&D 
proposal. We do not have information to indicate that oil-shale 
development, if it occurs at commercial levels, will overlap known P. 
grahamii occurrences.
    Oil-shale and tar-sands development has failed to materialize due 
largely to technological problems and unfavorable economics. The first 
interest in oil-shale extraction occurred in the latter years of and 
immediately following World War I. However, limited accessibility and 
low economic viability resulted in declining interest. More recently in 
the 1970-1980s, BLM made oil-shale resources on public lands available 
through the Oil Shale Prototype Program, which was designed to allow 
companies to develop and refine the technology for extracting oil from 
oil-shale. Since then, during the mid-1980s and 1990s, interest in oil-
shale development lagged because of declining petroleum prices (Bartis 
et al. 2005, p. 1; Lonnie 2005, pp. 1-3).
    Significant economic questions remain concerning the development of 
the Green River formation oil-shale and tar-sands (Bartis et al. 2005, 
pp. 15, 53; BLM 2006a, pp. 7, 15-19, 31, 34-36). The cost associated 
with an enormous and essentially new industry using new and innovative 
technologies is likely to be great. Economic success of oil-shale and 
tar-sands derived petroleum will depend on continuing and stable 
petroleum prices at a level of $70 to $95 per barrel. Due to past 
fluctuation of petroleum prices, private industry has exhibited a 
reluctance to proceed with research, development, and subsequent 
commercial production of oil-shale. This situation will likely continue 
unless the petroleum industry is convinced that petroleum prices will 
remain high well into the future (Bartis et al. 2005, pp. 59-61; Bunger 
et al. 2004, pp. 7-9).
    Various technologies for oil-shale extraction and processing into 
synthetic petroleum have been explored. The traditional approach is 
mining the oil-shale either by surface mining (i.e., removing the 
surface non oil-shale bearing material from the underlying

[[Page 76033]]

oil-shale ore body then removing the oil-shale itself for further 
processing) or underground mining (i.e., digging a vertical shaft 
through the surface non oil-shale bearing material to the underlying 
oil-shale ore body, or where possible digging a horizontal shaft into 
the oil-shale ore body, then removing the oil-shale by various 
underground mining techniques for further processing) (Bartis et al. 
2005, pp. 11-13; BLM 2006a, pp. 14, 32-33). Raw oil-shale is then 
retorted by heating to vaporize the carbon containing kerogen (shale 
oil) and then hydrolyzed, by the adding of hydrogen, to form synthetic 
petroleum which then can be refined by traditional methods into 
hydrocarbon fuels and other products (Bartis et al. 2006, pp. 13-14). 
Mining techniques are centuries old and are an effective direct 
approach to accessing ore bodies including oil-shale. Recent new 
technologies involve in-situ removal of kerogen directly from oil-shale 
by drilling wells into the oil-shale ore body and heating the 
underground oil-shale ore body and then extracting the liquefied 
kerogen for further processing (Bartis et al. 2005, p. 17; BLM 2005, 
pp. 32-33). There have been several variations of in-situ oil-shale 
recovery proposed and investigated (Bartis et al. 2005, pp. 17-20; BLM 
2006a, pp. 32-33).
    Surface mining is potentially the most damaging process to the 
environment. In-situ oil-shale recovery may be much less destructive to 
the environment. There is still great uncertainty as to the procedures 
that may be used in future oil-shale development, including within the 
range of Penstemon grahamii where there are no current proposals for 
oil-shale development.
    Even if economic and technological conditions favor oil-shale and 
tar-sand development, it would be at least 20 years before any 
production would begin in or near Penstemon grahamii occupied habitat, 
if it occurs in those locations at all. Indications are that initial 
oil-shale development will take place at existing RD&D sites in the 
Piceance Basin of Colorado and immediately south of the White River in 
the Uinta Basin of Utah (BLM 2006a, pp. 6, 38-40). None of the sites 
are within the range of P. grahamii, nor does suitable habitat exist 
for the species at those sites. At present there are no tar-sand 
development projects proposed for the PR springs tar-sand area which 
underlies portions of P. grahamii's range (BLM 2006a, p. 33).
    The entire range of Penstemon grahamii also is underlain with 
deposits of traditional petroleum resources, primarily natural gas. 
Impacts to P. grahamii from energy development have been largely 
avoided to date because surface disturbance within the species' habitat 
has been minimal. For example, under the existing development 
situation, only 5 of the known occurrences (4.6 percent) have oil and 
gas wells located within them (Service 2005 , p. 17). Thirty-nine 
active wells are within 1.6 km (1 mi) of P. grahamii occupied habitat, 
and future oil and gas development within P. grahamii habitat is 
likely. Of the 109 occurrences of P. grahamii, 69 (63 percent) are 
currently leased for oil and gas drilling, or are within established 
oil and gas fields that have active resource extraction programs. 
Ninety-six of the species' 109 known occurrences (88 percent) are 
within active seismic exploration areas (BLM 2003).
    The BLM reports that conservation stipulations for Penstemon 
grahamii near well locations have prevented adverse impacts to the 
species' habitat and possible loss of P. grahamii individuals (BLM 
2005, pp. 2-29, 2-30, 3-94, 4-233; Specht 2005). Conservation measures 
include moving well pad and pipeline locations to avoid direct impacts 
to the species. The BLM considers these measures to be effective 
protection mechanisms (Specht 2005). The BLM, as part of its sensitive 
species program outlined in its Administrative Manual 6840, will 
continue to provide protection to the species and its habitat through 
land use planning and implementation of conservations measures for oil 
and gas development (BLM 2005, pp. 2-29, 2-30, 3-94, 4-233; BLM 2006a, 
p. 43).
    The BLM has stressed its commitment to develop appropriate 
regulations for the leasing program, and to develop conservation 
measures for Penstemon grahamii and other plant species within future 
Federal oil-shale and tar-sand lease areas in Utah and Colorado (BLM 
2006b). These conservation measures are intended to eliminate 
significant potential threats to P. grahamii from oil-shale and tar-
sand development, and will be applied to lease stipulations for oil-
shale and tar-sands when and if they are issued (BLM 2000, p. 8). 
Additional mitigation measures to conserve P. grahamii also will be 
developed at the operational stage (BLM 2006a, pp. 24-27). Because 
these conservation measures have not yet been developed, we are not 
basing this withdrawal on their potential implementation. However, we 
expect development and implementation of sufficient conservation 
measures to help ensure long-term protection of the plant if oil-shale 
development becomes economically and technologically feasible.
    Approximately 60 percent of the species' population and 75 percent 
of the species' occupied habitat is on Bureau of Land Management (BLM) 
managed land with the remainder on non-Federal lands under State or 
private ownership (USFWS 2005). These State and private lands are 
intermingled within a broad mosaic of land ownerships dominated by 
Federal (BLM) lands. With this ``checkerboard'' spatial pattern of 
ownerships, large-scale development on non-Federal lands would, at a 
minimum, require coordination with the BLM. In most cases, development 
of these lands would only be possible via consolidation of Federal and 
non-Federal lands into economically viable development units (Bunger 
2006), which would require extensive review under the National 
Environmental Policy Act (NEPA) among other Federal laws.
    Biological studies specific to Penstemon grahamii and sympatric 
species are in their beginning phase (Lewinsohn et al. 2005).
    At this time, we have no information demonstrating population 
declines, range contraction, or significant habitat impacts for P. 
grahamii because of energy development (which includes current 
traditional oil and gas exploration, drilling and production, and 
potential oil-shale and tar-sand development). Therefore, we conclude 
that energy development within the range of P. grahamii is not 
currently a threat to the species, nor is it likely to become a 
significant threat in the foreseeable future, such that listing under 
the Act is warranted.
Other Activities
    Grazing may have localized effects on Penstemon grahamii, and one 
occurrence of the species is believed to have been eradicated by 
livestock trampling. The Dragon Sheep bed site first recorded in a 1982 
survey (Neese and Smith 1982b, p. 137) has not been relocated in recent 
years. This is an area of heavy sheep grazing and trampling, which is 
thought to have caused the possible extirpation of this occurrence 
(England 2003). Lewinsohn (2005 pp. 1, 12-14) reported a general 
decline in the species at one study area due to overgrazing. However, 
no research has been conducted to document effects of grazing on P. 
grahamii populations or habitat, and we have no information indicating 
that grazing impacts threaten the continued existence of the species 
throughout all or a significant portion of its range.

[[Page 76034]]

    To date little ORV use has been observed in the species' range. 
Federal and energy industry personnel are increasingly utilizing ORVs 
in oil and gas field survey and site location development prior to the 
establishment of oil field road networks (Specht 2005). However, we do 
not have any information indicating that ORV use is a threat to 
Penstemon grahamii or its habitat.
    Based on our analysis of the best available scientific and 
commercial information, we conclude that the present or threatened 
destruction, modification, or curtailment of Penstemon grahamii habitat 
or range is not currently a threat to the species, nor is it likely to 
become a significant threat in the foreseeable future, such that 
listing under the Act is warranted.

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

    Penstemon grahamii is a species of horticultural interest. The 
species is advertised on the internet and plants and seed are 
available. In 2004, a Penstemon collector approached Red Butte Garden 
(the Utah State botanical garden located at the University of Utah) 
inquiring how to obtain seeds of P. grahamii (Lewinsohn 2004). Several 
internet sites identify P. grahamii as a desirable plant for gardens or 
horticultural exhibitions. However, we do not have any information 
indicating that collection from the wild is occurring or if it is 
occurring, the level of collection or the impact of collection on wild 
populations.
    Based on our analysis of the best available scientific and 
commercial information, we conclude that overutilization of Penstemon 
grahamii for commercial, recreational, scientific, or educational 
purposes habitat or range is not currently a threat to the species, nor 
is it likely to become a significant threat in the foreseeable future, 
such that listing under the Act is warranted.

C. Disease or Predation

    Penstemon grahamii is grazed by wildlife, including rodents, 
rabbits, antelope, deer, elk, and insects (Shultz and Mutz 1979a, pp. 
37-42; Neese and Smith 1982a, pp. 63-66; England 1979; Specht 2005; 
Lewinsohn et al. 2005, pp. 2, 12-14, 17). The species also is grazed by 
livestock, primarily sheep. There are some anecdotal reports of the 
possible impacts of grazing on P. grahamii. For example, recent 
attempts to establish pollination studies and population monitoring 
plots for the species were complicated by overgrazing, which resulted 
in the loss of flowers before seeds set, resulting in no reproduction 
(Lewinsohn et al. 2005, p. 17). Lewinsohn also reported that all sites 
visited in southern Uintah County were either too small or too heavily 
grazed to conduct suitable pollination studies. However, there are no 
specific studies on the effects of grazing on this species.
    Based on our analysis of the best available scientific and 
commercial information, we conclude that disease or predation are not 
currently threats to Penstemon grahamii, nor are they likely to become 
significant threats in the foreseeable future, such that listing under 
the Act is warranted.

D. The Inadequacy of Existing Regulatory Mechanisms

    No Federal or State laws or regulations specifically protect 
Penstemon grahamii. The species is not protected by the Convention on 
International Trade in Endangered Species of Wild Fauna and Flora. Some 
populations occur on private lands, which were given mineral entry 
patents during the 1920s specifically because of oil-shale values. 
There is no regulatory protection for Penstemon grahamii on non-Federal 
lands.
    The majority of Penstemon grahamii populations occur on lands 
administered by the BLM. The BLM administratively recognizes rare and 
potentially imperiled plant species for special management 
consideration through its 6840 Manual for special status species, which 
includes P. grahamii. Because P. grahamii will be classified as a 
special status species, BLM will continue to provide conservation 
protection to the plant (BLM 2006b, pp. 1-2). The BLM, through existing 
land management regulations, land use planning, and specific lease and 
use stipulations (BLM 2006a, pp. 43-70), has considerable regulatory 
authority to manage lands and resources under its jurisdiction. These 
include oil and gas leasing regulatory mechanisms such as: land use 
planning guidance; lease sale stipulations; exploration and field 
development analysis and planning guidance for oil and gas fields and 
geophysical exploration; an individual oil and gas well review and 
approval (Applications for Permit to Drill (APD)) process; and on-the-
ground inspection processes for compliance with lease and APD 
stipulations (BLM 2005; BLM 2006a, pp. 45-53, 60, 67-69).
    Oil-shale and tar-sand regulatory mechanisms are under development, 
but will follow a similar environmental protection direction (BLM 
2006a, p 45). These measures will only be necessary if oil-shale 
development occurs in the future in habitat for Penstemon grahamii. In 
addition, the BLM has significant authority to regulate and manage 
grazing on lands under its jurisdiction (BLM 2005; BLM 2006a, pp. 54-
56, 60); ORV use (BLM 2005; BLM 2006a, pp. 58, 60); and collection of 
plant materials for horticultural and other uses (BLM 2006a, pp. 56-
58).
    We conclude that BLM has the necessary regulatory mechanisms in 
place to provide for the conservation of Penstemon grahamii and the 
protection of its habitat.
    Based on our analysis of the best available scientific and 
commercial information, we conclude that the inadequacy of existing 
regulatory mechanisms is not currently a threat to Penstemon grahamii, 
nor is it likely to become a significant threat in the foreseeable 
future, such that listing under the Act is warranted.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    We note the presence of exotic weeds within occupied Penstemon 
grahamii sites, including Bromus tectorum (cheatgrass) and Halogeton 
glomeratus (halogeton) (England 2003). These invasive exotic species 
are most abundant along roads and well site locations (Specht 2004). 
These species may compete with P. grahamii, thus further degrading 
habitat quality. However, we have no information to indicate that 
exotic weeds threaten the existence of P. grahamii.
    Little is known concerning the species' pollination biology. The 
BLM is currently funding pollination biology studies (Bolander 2005; 
Lewinsohn et al. 2005, pp. 12-14, 17). Collections and observations of 
pollinators to the flowers of Penstemon grahamii have been limited over 
the past two flowering seasons because of the paucity of flowering 
plants. The most consistent pollinator of this species is likely to be 
the wasp Pseudomasaris vespoides (Lewinsohn et al. 2005, p. 17). 
Because flowers of P. grahamii appear to be very scarce, this plant 
species may be unable to support a viable population of P. vespoides. 
Successful reproduction by P. grahamii may depend on the occurrence of 
other concurrently blooming Penstemon species which support and keep 
abundant populations of P. vespoides in the area.
    Low population numbers and habitat fragmentation pose a threat to 
rare plant species' genetic potential to adapt to changing 
environmental conditions (Lienert 2002, pp. 62, 63, 66; Matthies et al. 
2004, pp. 481, 486). Three of Penstemon grahamii's 5 population habitat 
units have 200 or fewer

[[Page 76035]]

individuals. In addition, 8 smaller occurrences with populations of 20 
or fewer individuals are isolated, and 10 km (6 mi) or more from the 
core area of the 5 P. grahamii population units. These smaller 
occurrences of P. grahamii may not be at levels that would ensure the 
species' long-term demographic stability and genetic viability. The 
effects of habitat degradation and fragmentation caused by human 
activities in concert with the effects of deleterious natural 
phenomena, such as drought, may lead to the extirpations of small, 
localized populations. At present there are no studies or information 
on these threats relative to P. grahamii, and we have no information to 
indicate that low population levels and habitat fragmentation have 
range-wide effects on the species.
    Based on our analysis of the best available scientific and 
commercial information, we conclude that there are no other natural or 
manmade factors affecting the continued existence of Penstemon grahamii 
such that listing under the Act is warranted.

Listing Determination

    We have carefully assessed the best scientific and commercial 
information available regarding threats to Penstemon grahamii. After a 
review of additional information provided during the public comment 
period, we have determined that existing and potential threats to P. 
grahamii and its habitat are not sufficient to warrant listing the 
species as threatened or endangered under the Act. No documented 
decreases in population numbers or range of distribution have been 
documented for P. grahamii. Potential threats to the species' habitat 
from energy development, including traditional oil and gas exploration, 
field development, and production, have been adequately addressed and 
mitigated by BLM policies, land use planning, and on-the-ground 
protective measures. Oil-shale development has the potential to cause 
increased habitat loss and fragmentation in areas of occupied P. 
grahamii habitat. However, there is great uncertainty over the 
technological and economic viability of commercial production, and, 
therefore, over timing and eventual location of oil-shale extraction. 
Based on the best available information, we conclude that there may 
never be a significant impact to the species from oil-shale or tar-sand 
energy development, and if there is it will not occur for at least the 
next 20 years. No significant habitat threats from livestock grazing or 
ORV use are presently affecting the species. Overutilization for 
horticultural use is not known to be negatively impacting populations.
    Because we have determined there are no significant threats that 
warrant listing this species under the Act, we withdraw our proposed 
listing rule and proposed critical habitat designation for Penstemon 
grahamii, as published in the Federal Register of January 19, 2006 (71 
FR 3158). We are taking this action under section 4(b)(6)(A)(i)(IV) of 
the Act. Our decision to withdraw the proposed rule to list Penstemon 
grahamii also removes the species from candidate status under the Act.
    In making this finding, we recognize there are potential future 
threats to the species from energy development, particularly if oil-
shale and tar-sands development is commercialized in the Uinta Basin. 
We further conclude that additional population inventory, habitat and 
population monitoring, and life history studies are needed for P. 
grahamii. If realization of any potential threats occurs, we will 
reexamine the status of P. grahamii.

References Cited

    A complete list of all references cited is available at the Utah 
Field Office, U.S. Fish and Wildlife Service (see ADDRESSES above).

Author

    The primary author of this document is John L. England of the Utah 
Fish and Wildlife Service Field Office (see ADDRESSES above).

Authority

    The authority for this action is section 4(b)(6)(B)(ii) of the 
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: December 6, 2006.
Marshall Jones,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. E6-21260 Filed 12-18-06; 8:45 am]
BILLING CODE 4310-55-P