[Federal Register Volume 78, Number 151 (Tuesday, August 6, 2013)]
[Proposed Rules]
[Pages 47832-47858]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-18335]



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Vol. 78

Tuesday,

No. 151

August 6, 2013

Part II





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Graham's Beardtongue (Penstemon grahamii) and White River 
Beardtongue (Penstemon scariosus var. albifluvis); Proposed Rule

  Federal Register / Vol. 78, No. 151 / Tuesday, August 6, 2013 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R6-ES-2013-0082; 4500030113]
RIN 1018-AZ61


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Graham's Beardtongue (>Penstemon grahamii) and 
White River Beardtongue (Penstemon scariosus var. albifluvis)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to designate 
critical habitat for Graham's beardtongue (Penstemon grahamii) and 
White River beardtongue (Penstemon scariosus var. albifluvis) under the 
Endangered Species Act of 1973, as amended (Act). We are proposing 
approximately 27,502 hectares (67,959 acres) for designation as 
critical habitat for Graham's beardtongue in Duchesne and Uintah 
Counties in Utah and Rio Blanco County in Colorado. We are proposing 
approximately 6,036 hectares (14,914 acres) for designation as critical 
habitat for White River beardtongue in Duchesne and Uintah Counties in 
Utah and Rio Blanco County in Colorado. If we finalize this rule as 
proposed, it will extend the Act's protections to these species' 
critical habitats.

DATES: We will accept comments received or postmarked on or before 
October 7, 2013. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES section, below) must be received by 
11:59 p.m. Eastern Time on the closing date. We must receive requests 
for public hearings, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by September 20, 2013.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R6-ES-2013-0082, which 
is the docket number for this rulemaking. Then, in the Search panel on 
the left side of the screen, under the Document Type heading, click on 
the Proposed Rules link to locate this document. You may submit a 
comment by clicking on ``Comment Now!''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R6-ES-2013-0082; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Information Requested section below for more information).
    The coordinates or plot points or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.fws.gov/utahfieldoffice under Latest News, http://www.regulations.gov at Docket 
No. FWS-R6-ES-2013-0082, and at the Utah Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT). Any additional tools or 
supporting information that we may develop for this critical habitat 
designation will also be available at the Fish and Wildlife Service Web 
site and Field Office set out above, and may also be included in the 
preamble and/or at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Larry Crist, Field Supervisor, U.S. 
Fish and Wildlife Service, Utah Ecological Services Field Office, 2369 
West Orton Circle, Suite 50, West Valley City, UT 84119; by telephone 
at 801-975-3330; or by facsimile at 801-975-3331. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. This is a proposed rule to designate 
critical habitat for two plant taxa, Graham's beardtongue (Penstemon 
grahamii) and White River beardtongue (P. scariosus var. albifluvis), 
which are proposed as threatened species under the Endangered Species 
Act (Act). A proposed rule to list Graham's beardtongue and White River 
beardtongue as threatened species is published elsewhere in today's 
Federal Register. Under the Act, any species that is determined to be 
an endangered or threatened species requires critical habitat to be 
designated, to the maximum extent prudent and determinable. 
Designations and revisions of critical habitat can only be completed by 
issuing a rule.
    The basis for our action. Under the Endangered Species Act, any 
species that is determined to be an endangered or threatened species 
shall, to the maximum extent prudent and determinable, have habitat 
designated that is considered to be critical habitat.
    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if she determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless she determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species.
    We are preparing an economic analysis of the proposed designations 
of critical habitat. In order to consider economic impacts, we are 
preparing an analysis of the economic impacts of the proposed critical 
habitat designations and related factors. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek additional public review and comment.
    We will seek peer review. We are seeking comments from independent 
specialists to ensure that our critical habitat proposal is based on 
scientifically sound data and analyses. We have invited these peer 
reviewers to comment on our specific assumptions and conclusions in 
this critical habitat proposal. Because we will consider all comments 
and information we receive during the comment period, our final rule 
may differ from this proposal.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific data available and be as accurate 
and as effective as possible. Therefore, we request comments or 
information from other concerned government agencies, the scientific 
community, industry, or any other interested party concerning this 
proposed rule. We particularly seek comments regarding:
    (1) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.) including whether there are threats to the species from human 
activity, the degree of which can be expected to increase due to the 
designation, and whether that increase in threat outweighs the benefit 
of designation such that the designation of critical habitat may not be 
prudent.
    (2) Specific information on:

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    (a) The amount and distribution of Graham's beardtongue and White 
River beardtongue occupied and suitable habitat;
    (b) Areas that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species that should be included in the designation 
and why;
    (c) What areas not occupied at the time of listing are essential 
for the conservation of the species and why;
    (d) What may constitute ``physical or biological features essential 
to the conservation of the species,'' within the geographical range 
currently occupied by the species;
    (e) Where the ``physical or biological features essential to the 
conservation of the species,'' features are currently found;
    (f) Information indicating how these species respond to natural and 
anthropogenic disturbances; and
    (g) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on Graham's and White River beardtongues and proposed 
critical habitat.
    (5) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, we seek information on any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (6) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act.
    (7) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    (8) The likelihood of adverse social reactions to the designation 
of critical habitat and how the consequences of such reactions, if 
likely to occur, would relate to the conservation and regulatory 
benefits of the proposed critical habitat designation.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(2) of the Act directs that 
critical habitat designations be made based on the best scientific data 
available and after consideration of economic and other relevant 
impacts.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We request 
that you send comments only by the methods described in the ADDRESSES 
section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. You may request 
at the top of your document that we withhold personal information such 
as your street address, phone number, or email address from public 
review; however, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Utah Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    Elsewhere in today's Federal Register, we propose to list Graham's 
beardtongue and White River beardtongue as threatened species under the 
Act. Please see this proposed listing rule for a complete history of 
previous Federal actions for these two plants.

Background

    We intend to discuss only those topics directly relevant to the 
designation of critical habitat in this proposed rule. For more 
information on Graham's beardtongue and White River beardtongue, refer 
to the proposed rule to list these species, also published in today's 
Federal Register.
    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
non-Federal landowners. Where a landowner requests Federal agency 
funding or authorization for an action that may affect a listed species 
or critical habitat, the consultation requirements of section 7(a)(2) 
of the Act would apply, but even in the event of a destruction or 
adverse modification finding, the obligation of the Federal action 
agency and the landowner is not to restore or recover the species, but 
to implement reasonable and prudent alternatives to avoid destruction 
or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or

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biological features (1) which are essential to the conservation of the 
species and (2) which may require special management considerations or 
protection. For these areas, critical habitat designations identify, to 
the extent known using the best scientific data available, those 
physical or biological features that are essential to the conservation 
of the species (such as space, food, cover, and protected habitat). In 
identifying those physical and biological features within an area, we 
focus on the principal biological or physical constituent elements 
(primary constituent elements such as roost sites, nesting grounds, 
seasonal wetlands, water quality, tide, soil type) that are essential 
to the conservation of the species. Primary constituent elements are 
those specific elements of the physical or biological features that 
provide for a species' life-history processes and are essential to the 
conservation of the species.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential to the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific data available. Further, 
our Policy on Information Standards Under the Endangered Species Act 
(published in the Federal Register on July 1, 1994 (59 FR 34271)), the 
Information Quality Act (section 515 of the Treasury and General 
Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; 
H.R. 5658)), and our associated Information Quality Guidelines, provide 
criteria, establish procedures, and provide guidance to ensure that our 
decisions are based on the best scientific data available. They require 
our biologists, to the extent consistent with the Act and with the use 
of the best scientific data available, to use primary and original 
sources of information as the basis for recommendations to designate 
critical habitat.
    When we determine which areas should be designated as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, biological assessments, or other unpublished 
materials and expert opinion or personal knowledge.
    We recognize that critical habitat designated at a particular point 
in time may not include all of the habitat areas that we may later 
determine are necessary for the recovery of the species. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may not be needed for 
recovery of the species. Areas that are important to the conservation 
of the species, both inside and outside the critical habitat 
designation, will continue to be subject to: (1) Conservation actions 
implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. Federally funded or permitted projects affecting listed 
species outside their designated critical habitat areas may still 
result in jeopardy findings in some cases. These protections and 
conservation tools will continue to contribute to recovery of this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12), require that, to the maximum extent 
prudent and determinable, the Secretary shall designate critical 
habitat at the time the species is determined to be an endangered or 
threatened species. Our regulations (50 CFR 424.12(a)(1)) state that 
the designation of critical habitat is not prudent when one or both of 
the following situations exist:
    (1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or
    (2) Such designation of critical habitat would not be beneficial to 
the species.
    There is no imminent threat of take attributed to collection or 
vandalism for either of these species, and identification and mapping 
of critical habitat is not expected to initiate any such threat. In the 
absence of finding that the designation of critical habitat would 
increase threats to a species, if there are any benefits to a critical 
habitat designation, then a prudent finding is warranted. Here, the 
potential benefits of designation include: (1) Triggering consultation 
under section 7 of the Act, for actions in which there may be a Federal 
nexus where it would not otherwise occur because, for example, the 
critical habitat has become unoccupied or the occupancy is in question; 
(2) focusing conservation activities on the species' most essential 
habitat features and areas; and (3) providing educational benefits to 
State or County governments or private entities. Therefore, because we 
determined that the designation of critical habitat will not likely 
increase the degree of threat to the species and may provide some 
measure of benefit, we find that designation of critical habitat is 
prudent for Graham's beardtongue and White River beardtongue.

Critical Habitat Determinability

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

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Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. 
These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    We derive the specific physical and biological features essential 
for Graham's beardtongue and White River beardtongue from studies of 
these species' habitat, ecology, and life history as described in our 
proposal to list the species as threatened published elsewhere in 
today's Federal Register.
Graham's Beardtongue
    We determined that Graham's beardtongue requires the physical and 
biological features described below.
Space for Individual and Population Growth and for Normal Behavior
    Plant Community. Graham's beardtongue is associated with a suite of 
species similarly adapted to xeric growing conditions on highly basic 
calcareous (containing calcium carbonate) shale soils (for more 
discussion, see ``Soils'' below). The vascular plant species most 
frequently associated with Graham's beardtongue include saline wild-rye 
(Leymus salina), spiny greasebush (Glossopetalon spinescens var. 
meionandra), Utah juniper (Juniperus osteosperma), shadscale saltbush 
(Atriplex confertifolia), twoneedle pi[ntilde]on (Pinus edulis), 
mountain thistle (Cirsium scopulorum), ephedra buckwheat (Eriogonum 
ephedroides), sulfur flower buckwheat (Eriogonum umbellatum), Colorado 
feverfew (Parthenium ligulatum), and Fremont's wild-buckwheat 
(Eriogonum corymbosum) (UNHP 2013, entire). Graham's beardtongue sites 
at higher elevation can be found within sparse pi[ntilde]on-juniper 
woodland dominated by Utah juniper and pi[ntilde]on pine. Graham's 
beardtongue sites at lower elevations are occasionally within a sparse 
desert shrubland dominated by shadscale saltbush.
    Within these plant communities, Graham's beardtongue is found in 
open or sparsely vegetated, raw shale areas. Dwarf shrubs and cushion-
like herbs make up the distinctive plant community type occurring on 
these calcareous shale sites. The following species are in part co-
occurring with Graham's beardtongue and are similarly endemic and 
totally restricted to the Green River Geologic Formation: Dragon 
milkvetch (Astragalus lutosus), oilshale columbine (Aquilegia 
barnebyi), Barneby's thistle (Cirsium barnebyi), oilshale cryptantha 
(Cryptantha barnebyi), Graham's cryptantha (Cryptantha grahamii), 
Rollins' cryptantha (Cryptantha rollinsii), ephedra buckwheat, and 
White River beardtongue. Intact native plant communities immediately 
adjacent to Graham's beardtongue shale habitat are also important to 
prevent the encroachment of invasive weeds into this habitat (Service 
2012b, entire).
    The long-term viability of Graham's beardtongue is dependent on 
having a diverse plant community that supports pollinators, even if 
that plant community is sparse (see Reproduction, below). Flowering in 
Graham's beardtongue can be highly unreliable year-to-year, so 
pollinators of this species are likely to rely on nearby plants as a 
food source in years when Graham's beardtongue does not flower very 
much (Dodge and Yates 2008, p. 30). Therefore, based on the information 
above, we identify sparsely vegetated, barren shales with a diverse 
plant community dominated by the dwarf shrubs, cushion-like plants, and 
endemic species listed above to be a physical or biological feature for 
this species.
    Slope and Topography. Throughout this proposed rule, we will refer 
to points, which are data that represent a physical location where one 
or more plants were observed on the ground. Point data are usually 
collected by GPS and stored as a ``record'' in a geographic information 
system (GIS) database. We mapped all plant points and grouped them into 
populations following standardized methods used by the national network 
of Natural Heritage Programs (see the proposed listing rule published 
elsewhere in today's Federal Register). About a third of all known 
Graham's beardtongue point locations in our files grow on slopes that 
are 10 degrees or less, with an average slope across all known points 
of 17.6 degrees (Service 2013, p. 2). Graham's beardtongue grows on 
slopes ranging from 0 to 73 degrees, although occurrences on steeper 
slopes are rare. Ninety-five percent of the known points are on slopes 
that are 40 degrees or less (GIS analysis 2013). Individuals of 
Graham's beardtongue usually grow on southwest-facing exposures (GIS 
analysis 2013). Therefore, we identify southwest-facing slopes of less 
than 40 degrees to be a physical or biological feature for this 
species.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Soils and Geology. Graham's beardtongue is found on highly basic 
soils derived from strata of the Green River Formation (Shultz and Mutz 
1979, p. 40; Neese and Smith 1982, p. 64). These soils provide the root 
microhabitat essential for the species' growth and reproduction. These 
soils are very shallow with virtually no soil horizon development. The 
little soil above the consolidated calcareous shale rock of its parent 
material is usually very light clay derived from thinly bedded shale. 
The soil surface is covered with shale channers (thin, flat fragments 
up to 15 cm (6 in) long, usually less than 5 cm (2 in) across), 
underlain with larger shale fragments to a depth of 5 to 10 cm (2 to 4 
in). The shale channers usually weather to a light tan color. Freshly 
broken channers exhibit a very dark brown interior due to the high 
organic content of the kerogen (the hydrocarbons from plant material 
that are the main source of oil in oil shales).
    The majority of Graham's beardtongue populations and those with the 
largest numbers of plants occur on the oil-shale-rich Mahogany ledge, 
which is the outcrop of the richest oil shale bed of the Parachute 
Creek Member of the Green River Formation (Cashion 1967, p. 1; Shultz 
and Mutz 1979, p. 40). Water can collect (called ``perching'') on the 
Mahogany zone, and Graham's beardtongue may be adapted to access water 
through this natural process (Shultz and Mutz 1979, p. 40; Service 
2012b, entire). The remaining occurrences are associated with upper 
members of the Green River Formation as described by Weiss and Witkind 
(Weiss et al. 1990, entire; Remy 1992, p. BB18). Therefore, based on 
the information above, we identify the upper Green River Formation oil 
shale soils as a physical or biological feature for this species.
    Climate. Graham's beardtongue is adapted to a cold desert climate, 
with

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most precipitation occurring in the spring and fall, and snow cover 
from December through March (Western Regional Climate Center 2013, 
entire). Winter snow cover may be important for this species by 
preventing severe frost damage to plants during the coldest months 
(Bannister et al. 2005, pp. 250-1). Temperatures can be extreme, with 
average summer highs around 34 degrees Celsius ([deg]C) (93 degrees 
Fahrenheit ([deg]F)) and average winter lows around -14 [deg]C (7 
[deg]F) (Western Regional Climate Center 2013, entire). Graham's 
beardtongue seeds need at least 45 to 90 consecutive days at less than 
4 [deg]C (40 [deg]F) in order to germinate (Wilcox et al. undated, p. 
5). Average annual precipitation across the range of this species 
varies from 15 to 30 cm (6 to 12 in) (GIS analysis 2013). Because 
Graham's beardtongue evolved under these climatic conditions, we 
identify suitable precipitation--15 to 30 cm (6 to 12 in) with most 
precipitation in spring and fall and snow cover from December through 
March--and suitable temperatures--average winter low temperature of -14 
[deg]C (7 [deg]F) and average summer high of 34 [deg]C (93 ([deg]F)) 
with at least 45 to 90 consecutive days less than 4 [deg]C (40 
[deg]F)--as physical or biological features for this plant. These 
climatic conditions are likely influenced, in part, by elevation.
Cover or Shelter
    Seeds and seedlings of Graham's beardtongue require the right 
microclimate for germination and establishment. However, we do not know 
the specific requirements of Graham's beardtongue for suitable 
microsites, nor are these features likely to be manageable as a 
physical or biological feature for this species. Suitable conditions 
for seed germination and seedling establishment are further described 
in the Plant Community and Soils and Geology sections, above.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    Reproduction. Graham's beardtongue can produce seeds through self-
pollination, but is much more reproductively successful when it is 
cross-pollinated (Dodge and Yates 2009, p. 14). At least 11 different 
pollinator species visit Graham's beardtongue (England 2003, entire; 
Lewinsohn and Tepedino 2007, p. 235; Dodge and Yates 2008, p. 31), and 
there is no evidence of pollinator limitation for this species (Dodge 
and Yates 2008, p. 14). Pollinators include small to medium-sized 
solitary bees in the following genera: Agopostemon, Anthophora, 
Lasioglossum, and Osmia. A Penstemon-specializing wasp, Pseudomasaris 
vespoides, is likely the most common pollinator for P.grahamii 
(Lewinsohn and Tepedino 2005, p. 17). Larger bumblebees, such as Bombus 
huntii (Hunt's bumblebee), are also thought to pollinate Graham's 
beardtongue (England 2003, entire). These bees are mostly ground and 
twig-nesting bees (Dodge and Yates 2008, pp. 30-1).
    Pollinators generally need a diversity of native plants whose 
blooming times overlap, nesting and egg-laying sites with appropriate 
nesting materials, undisturbed shelter for overwintering, and a 
landscape free of poisonous chemicals (Shepherd et al. 2003, pp. 49-
50). Intact native plant communities that connect populations of rare 
plants are also important, as anthropogenic disturbances may be a 
barrier to pollinator movement (Bhattacharya et al. 2003, pp. 42-43). 
As previously described (see Space for Individual and Population Growth 
and for Normal Behavior, above), Graham's beardtongue individuals are 
sparsely distributed and flowering can be irregular. Populations of 
other beardtongue species in areas adjacent to Graham's beardtongue 
occupied habitat are essential to support the pollinating wasp's 
(Pseudomasaris vespoides) population during periods of poor Graham's 
beardtongue floral availability (Lewinsohn and Tepedino 2007, p. 236). 
Protecting these species and intact native plant communities maintains 
connectivity between areas, allowing pollinators to move between or 
within populations. These beardtongue species include thickleaf 
beardtongue (Penstemon pachyphyllus), Fremont's beardtongue (P. 
fremontii), Rocky Mountain beardtongue (P. strictus), and White River 
beardtongue (P. scariosus, not to be confused with P. scariosus var. 
albifluvis). Because the evidence presented above indicates that 
pollinators are necessary to maximize successful reproduction of 
Graham's beardtongue, we have identified pollinators and their 
associated habitats as a physical or biological feature for this 
species.
    In general, pollinators will focus on small areas where floral 
resources are abundant; however, occasional longer distance pollination 
will occur. Typically, pollinators fly distances that are in relation 
to their body sizes, with smaller pollinators flying shorter distances 
than larger pollinators (Greenleaf et al. 2007, pp. 589-96). Using 
available information, we extrapolated likely travel distances of 
Graham's beardtongue pollinators based on their medium to large body 
sizes. The body size of Graham's beardtongue pollinators allows for 
travel distances of approximately 700 m (2,297 ft) (Service 2012a, p. 
8).
    If a pollinator can fly long distances, pollen transfer is also 
possible across these distances. In the interest of protecting 
pollinators of Graham's beardtongue, and thus genetic flow between 
individuals and reproduction for this species, we identified a 700-m 
(2,297-ft) area beyond occupied habitat to conserve the pollinators 
essential for plant reproduction. These pollinator habitat areas have 
the added benefit of potentially providing more habitat for Graham's 
beardtongue to expand into, and add protection against encroachment by 
invasive weeds or other disturbance effects.
Habitats Protected from Disturbance or Representative of the Historic 
Geographical and Ecological Distributions of the Species
    Intact Soils. Anthropogenic habitat fragmentation within Graham's 
beardtongue occupied habitat has not been severe. However, 
fragmentation is likely to increase in the future without additional 
protection. As an oil shale endemic, Graham's beardtongue is limited to 
a specific soil type and structure (see Soils and Geology, above). It 
is likely that once Graham's beardtongue habitat is disturbed through 
soil-disturbing activities such as oil shale development (see I. Energy 
Exploration and Development in our proposed listing rule published 
elsewhere in today's Federal Register), it is essentially lost to the 
species. In addition, restoration of native species in arid climates is 
difficult (Monsen 2004, p. 29). Maintaining intact shale soils where 
Graham's beardtongue grows is important to ensure viability of the 
species. We have identified intact soils within Graham's beardtongue 
occupied habitat and nearby plant communities is an important physical 
or biological feature for this species.
White River Beardtongue
    We have determined that White River beardtongue requires the 
physical and biological features described below.
Space for Individual and Population Growth and for Normal Behavior
    Plant Community. White River beardtongue is found in semi-barren 
openings of mixed desert shrub and pi[ntilde]on-juniper communities. 
The vascular plant species most frequently associated with White River 
beardtongue include Barneby's thistle, saline wild-rye, spiny 
greasebush, Utah juniper, twoneedle pi[ntilde]on, shadscale saltbush, 
Dragon milkvetch, Barneby's

[[Page 47837]]

thistle, Barneby catseye, rayless tansy-aster (Xanthisma 
grindelioides), and Indian ricegrass (Achnatherum hymenoides) (UNHP 
2013, entire).
    Occasionally White River beardtongue is found with oilshale 
columbine and Graham's beardtongue (Franklin 1995, p. 5). Many of the 
other oil shale endemics found growing with Graham's beardtongue can be 
found with White River beardtongue, although White River beardtongue 
grows in slightly less sparse areas (see Plant Community for Graham's 
beardtongue, above, for a complete list (Neese and Smith 1982, p. 58)). 
We consider sparsely vegetated, barren shale dominated by the dwarf 
shrubs, cushion-like plants, and endemic species listed above to be a 
physical or biological feature for this species.
    Slope and Topography. About one-fifth of all known point locations 
of White River beardtongue are on slopes of 10 degrees or less, with an 
average slope for all known points of 19.2 degrees (Service 2013, p. 
3). This is somewhat steeper than the slopes on which Graham's 
beardtongue grows, although 95 percent of the known points are on 
slopes that are 33 degrees or less (GIS analysis 2013). Field 
observations also indicate that White River beardtongue grows on 
steeper slopes than Graham's beardtongue (Brunson 2012; Service 2012), 
but this hypothesis should be tested. White River beardtongue 
individuals usually grow on southwest-facing exposures (GIS analysis 
2013). Therefore, we identify southwest-facing slope of less than 33 
degrees to be a physical or biological feature for this species.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    Soils and Geology. White River beardtongue is restricted to 
calcareous soils derived from oil shale barrens of the Parachute Creek 
Member and other members of the Green River Formation in the Uinta 
Basin of northeastern Utah and adjacent Colorado. White River 
beardtongue is also associated with the Mahogany ledge (see Soils and 
Geology for Graham's beardtongue, above, for more details). White River 
beardtongue overlaps with Graham's beardtongue at some locations, and 
the soil types are basically the same, although White River beardtongue 
can also be found in red, fine-textured, shallow, soils. Based on the 
information above, we identify the Green River Formation oil shale 
soils as a physical or biological feature for this species.
    Climate. White River beardtongue is adapted to the same climate as 
Graham's beardtongue--a cold desert climate, with most precipitation 
occurring in the spring and fall, and snow cover from December through 
March (Western Regional Climate Center 2013, entire). Winter snow cover 
may be important for this species as it can prevent severe frost damage 
to plants during the winter months (Bannister et al. 2005, p. 250-1). 
Temperatures can be extreme, with average summer highs around 34 
degrees Celsius ([deg]C) (93 degrees Fahrenheit ([deg]F)) and average 
winter lows around -14 [deg]C (7[emsp14][deg]F) (Western Regional 
Climate Center 2013, entire). White River beardtongue seeds need at 
least 45 to 90 consecutive days at less than 4 [deg]C 
(40[emsp14][deg]F) to germinate (Wilcox et al. undated, p. 5). Average 
annual precipitation across the range of this species varies from 15 to 
30 cm (6 to 12 in) (GIS analysis 2013). Because White River beardtongue 
evolved under these climatic conditions, we identify suitable 
precipitation--15 to 30 cm (6 to 12 in) with most precipitation in 
spring and fall and snow cover from December through March--and 
suitable temperatures--average winter low temperature of -14 [deg]C 
(7[emsp14][deg]F) and average summer high of 34 [deg]C (93 ([deg]F)) 
with at least 45 to 90 consecutive days less than 4 [deg]C 
(40[emsp14][deg]F)--as physical or biological features for this plant. 
These climatic conditions are likely influenced, in part, by elevation.
Cover or Shelter
    Seeds and seedlings of White River beardtongue require the right 
microclimate for germination and establishment. However, we do not know 
the specific requirements of White River beardtongue for suitable 
microsites, nor are these features likely to be manageable as a 
physical or biological feature for this species. Suitable conditions 
for seed germination and seedling establishment are further described 
in the Plant Community and Soils and Geology sections, above.
Sites for Breeding, Reproduction, or Rearing (or Development) of 
Offspring
    Reproduction. Although White River beardtongue can produce seed 
through self-pollination, cross-pollination produces the most seed and 
fruits (Lewinsohn and Tepedino 2007, p. 234). At least 15 different 
pollinator species visit White River beardtongue, and there is no 
evidence of pollinator limitation for this species (Lewinsohn and 
Tepedino 2007). Pollinators include small to medium native solitary 
bees including Anthophora, Ceratina (carpenter bees), Halictus (sweat 
bees), Lasioglossum, and Osmia species. Pseudomasaris vespoides (wasp) 
also pollinates White River beardtongue. These bees are mostly ground 
and twig-nesting bees (Dodge and Yates 2008, p. 30-1).
    Pollinators generally need a diversity of native plants whose 
blooming times overlap, nesting and egg-laying sites with appropriate 
nesting materials, undisturbed shelter for overwintering, and a 
landscape free of poisonous chemicals (Shepherd et al. 2003, pp. 49-
50). Intact native plant communities that connect populations of rare 
plants are also important, as anthropogenic disturbances may be a 
barrier to pollinator movement (Bhattacharya et al. 2003, p. 42-3). 
Flowering in White River beardtongue is not as unreliable as that for 
Graham's beardtongue, although maintaining plant communities adjacent 
to occupied habitat are still important to maintain a diversity of 
pollinators (Tepedino et al. 1997, p. 246) and to maintain connectivity 
between areas, allowing pollinators to move between sites within each 
population. Because the evidence presented above indicates that 
pollinators are necessary to maximize successful reproduction of White 
River beardtongue, we consider pollinators and their associated 
habitats as a physical or biological feature for this species.
    Like Graham's beardtongue, we extrapolated likely travel distances 
of White River beardtongue pollinators based on their small to medium 
body sizes. A notable exception to pollinators observed on White River 
beardtongue is that Bombus spp. and other large bees do not visit these 
flowers. This observation is not surprising given the relatively 
smaller size of the flower compared to other beardtongues like Graham's 
beardtongue. In the interest of protecting pollinators of White River 
beardtongue, and thus genetic flow between individuals and reproduction 
for this species, we identified a 500-m (1,640-ft) area beyond occupied 
habitat to conserve the pollinators essential for plant reproduction. 
We based this distance on the fact that small to medium species visit 
White River beardtongue, and these species are likely capable of 
travelling a distance of 500 m (1,640 ft) between plants or from 
nesting sites to plants. These pollinator habitat areas have the added 
benefit of potentially providing more habitat for White River 
beardtongue to expand into, and add protection against encroachment by 
invasive weeds or other disturbance effects.

[[Page 47838]]

Habitats Protected From Disturbance or Representative of the Historic 
Geographical and Ecological Distributions of the Species
    Intact Soils. Anthropogenic habitat fragmentation within White 
River beardtongue occupied habitat has not been severe. However, 
fragmentation is likely to increase in the future without sufficient 
protection. As an oil shale endemic, White River beardtongue is limited 
to a specific soil type and structure (see Soils and Geology, above). 
It is likely that once White River beardtongue's habitat is disturbed 
through soil-removing activities such as oil shale development, it is 
essentially lost to the species (see I. Energy Exploration and 
Development in our proposed listing rule published elsewhere in today's 
Federal Register). In addition, restoration of native species in arid 
climates is difficult (Monsen 2004, p. 29). Maintaining intact shale 
soils where White River beardtongue grows is important to ensure 
viability of the species. We have identified intact soils within White 
River beardtongue occupied habitat and nearby plant communities as an 
important physical or biological feature for this species.
Primary Constituent Elements for Graham's Beardtongue
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of Graham's beardtongue in areas occupied at the time of 
listing, focusing on the features' primary constituent elements. We 
consider primary constituent elements to be those specific elements of 
the physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to Graham's beardtongue are:
    (1) Plant community.
    a. Barren areas with little, but diverse, plant cover.
    b. Presence of dwarf shrubs and cushion-like, oil shale endemic 
plants, including Dragon milkvetch (Astragalus lutosus), oilshale 
columbine (Aquilegia barnebyi), Barneby's thistle (Cirsium barnebyi), 
oilshale cryptantha (Cryptantha barnebyi), Graham's cryptantha 
(Cryptantha grahamii), Rollins' cryptantha (Cryptantha rollinsii), 
ephedra buckwheat (Eriogonum ephedroides), and White River beardtongue 
(Penstemon scariosus var. albifluvis).
    c. Intact, surrounding, native plant community to support 
pollinators and protect from the encroachment of invasive weeds and 
other potential threats.
    (2) Slopes and topography.
    a. Southwest- to western-facing slopes.
    b. Slopes of less than 40 degrees; average slope of 17.6 degrees.
    (3) Soils and geology.
    a. Parachute Creek Member and other upper members of the Green 
River Geologic Formation.
    b. Appropriate soil morphology characterized by shallow soils with 
virtually no soil horizon development, with a surface usually covered 
by broken shale channers or light clay derived from the thinly bedded 
shale.
    c. Intact soils with minimal anthropogenic disturbance (at or below 
current levels) within Graham's beardtongue occupied habitat and nearby 
plant communities.
    (4) Climate. A cold desert climate with the same conditions under 
which the species evolved and is typical for the area. Annual 
precipitation of 15 to 30 cm (6 to 12 inches) with most precipitation 
in spring and fall and snow cover from December through March. Average 
winter low temperature of -14 [deg]C (7[emsp14][deg]F) and average 
summer high of 34 [deg]C (93 ([deg]F)) with at least 45 to 90 
consecutive days less than 4 [deg]C (40[emsp14][deg]F).
    (5) Habitat for pollinators.
    a. Ground and twig nesting areas for pollinators. A diverse mosaic 
of native plant communities that include flowering plants that provide 
nectar and pollen for a wide array of pollinator species.
    b. Connectivity between areas allowing pollinators to move from one 
site to the next within each population.
    c. A 700-m (2,297-ft) area beyond occupied habitat to conserve the 
pollinators essential for plant reproduction.
Primary Constituent Elements for White River Beardtongue
    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of White River beardtongue in areas occupied at the time 
of listing, focusing on the features' primary constituent elements. We 
consider primary constituent elements to be those specific elements of 
the physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species. 
In addition, primary constituent elements for White River beardtongue 
are nearly identical in some cases to those for Graham's beardtongue. 
We note explicitly where differences exist.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to White River beardtongue are:
    (1) Plant community.
    a. Barren areas with little, but diverse, plant cover.
    b. Presence of dwarf shrubs and cushion-like, oil shale endemic 
plants, including Dragon milkvetch (Astragalus lutosus), oilshale 
columbine (Aquilegia barnebyi), Barneby's thistle (Cirsium barnebyi), 
oilshale cryptantha (Cryptantha barnebyi), Graham's cryptantha 
(Cryptantha grahamii), Rollins' cryptantha (Cryptantha rollinsii), 
ephedra buckwheat (Eriogonum ephedroides), and occasionally Graham's 
beardtongue (Penstemon grahamii).
    c. Intact, surrounding, native plant community to support 
pollinators and protect from the encroachment of invasive weeds and 
other potential threats.
    (2) Slopes and topography.
    a. South- to southwest-facing slopes.
    b. Slopes of less than 33 degrees; average slope of 19.2 degrees.
    (3) Soils and geology.
    a. Parachute Creek Member and other upper members of the Green 
River Geologic Formation.
    b. Appropriate soil morphology characterized by shallow soils with 
virtually no soil horizon development, with a surface usually covered 
by broken shale channers or light clay derived from the thinly bedded 
shale.
    c. Intact soils with minimal anthropogenic disturbance (at or below 
current levels) within White River beardtongue occupied habitat and 
nearby plant communities.
    (4) Climate. A cold desert climate with the same conditions under 
which the species evolved and is typical for the area. Annual 
precipitation of 15 to 30 cm (6 to 12 inches) with most precipitation 
in spring and fall and snow cover from December through March. Average 
winter low temperature of -14 [deg]C (7[emsp14][deg]F) and average 
summer high of 34 [deg]C (93 ([deg]F)) with at least 45 to 90 
consecutive days less than 4 [deg]C (40[emsp14][deg]F).
    (5) Habitat for pollinators.
    a. Ground and twig nesting areas for pollinators. A diverse mosaic 
of native plant communities that include flowering plants that provide 
nectar and

[[Page 47839]]

pollen for a wide array of pollinator species.
    b. Connectivity between areas allowing pollinators to move from one 
site to the next within each population.
    c. A 500-m (1,640-ft) area beyond occupied habitat to conserve the 
pollinators essential for plant reproduction.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. A detailed discussion of the current and future threats to 
Graham's beardtongue and White River beardtongue can be found in the 
proposed listing rule, which is published elsewhere in today's Federal 
Register. The primary threats impacting the physical and biological 
features essential to the conservation of Graham's beardtongue and 
White River beardtongue that may require special management 
considerations or protection within the proposed critical habitat 
include, but are not limited to, energy exploration and development, 
the cumulative impacts of increased energy development, livestock 
grazing, invasive weeds, small population sizes, and climate change 
(for a complete discussion, please see our proposed listing rule 
published elsewhere in today's Federal Register).
    Special management considerations or protections are required 
within critical habitat areas to address these threats. Management 
activities that could ameliorate these threats include (but are not 
limited to): Develop regulations and agreements to balance conservation 
with energy development and minimize its effects in Graham's 
beardtongue and White River beardtongue habitat; avoid placing roads 
and energy facilities in habitats that would affect these species or 
their pollinators; minimize livestock use that disturb the soil or 
seeds; minimize habitat fragmentation; establish permanent conservation 
easements or land acquisitions to protect the species on non-federal 
lands; and eliminate or avoid activities that alter the morphology of 
shale slopes.
    These management activities will protect the primary constituent 
elements for the species by preventing the loss of habitat and 
individuals, preserving these species' habitats and soils, maintaining 
native plant communities and natural levels of competition, and 
protecting these species' reproduction by protecting their pollinators.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. We review 
available information pertaining to the habitat requirements of the 
species. In accordance with the Act and its implementing regulation at 
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time 
of listing--are necessary to ensure the conservation of the species. We 
are not proposing to designate any areas outside the geographical area 
currently occupied by Graham's beardtongue or White River beardtongue 
because occupied areas are sufficient for the conservation of these 
species.
    Conserving imperiled species can be accomplished by following the 
three Rs: representation, resiliency, and redundancy (Shaffer and Stein 
2000). Representation, or preserving some of everything, means 
conserving not just a species but its associated plant communities, 
pollinators, and pollinator habitats. We addressed representation 
through our primary constituent elements for each species as discussed 
above, specifically by ensuring sufficient habitat for their 
pollinators. Resiliency and redundancy ensure there is enough of a 
species so that it can survive into the future. Resiliency means 
ensuring that the habitat is adequate for a species and its 
representative components. Redundancy ensures an adequate number of 
sites and individuals. This methodology has been widely accepted as a 
reasonable conservation methodology (Tear et al. 2005, p. 841).
    Critical habitat was identified by compiling all known locations 
for each species and delineating suitable habitat adjacent to the known 
locations to provide a sufficient area for pollinator habitat. 
Pollinator habitat areas for Graham's beardtongue were delineated using 
a 700-m (2,297-ft) distance from known locations. Pollinator habitat 
areas for White River beardtongue were delineated using a 500-m (1,640-
ft) distance from known locations. These distances were based on how 
far the primary pollinators can travel for each of the species (see 
Reproduction above for each species for more information).
    Given the total population numbers of each species, we believe the 
areas we propose to designate as critical habitat for Graham's 
beardtongue and White River beardtongue would also preserve redundancy 
and resilience. As described in our listing proposed rule, published 
elsewhere in today's Federal Register, White River beardtongue has 
11,423 known plants distributed in 7 populations, and Graham's 
beardtongue has 31,702 known plants distributed in 24 populations. We 
conclude that both species are currently viable, but that their 
viability will be substantially decreased in the future, mainly because 
of the threat of energy development. We consider a species viable if it 
can persist over the long term, thus avoiding extinction. A species can 
be conserved (and is thus viable) if it has representation, resiliency, 
and redundancy (Shaffer and Stein 2000), as explained earlier.
    As described in our listing proposed rule, published elsewhere in 
today's Federal Register, the total population of White River 
beardtongue may be as high as 25,000 plants (Franklin 1995, entire); 
additional surveys are likely to locate more plants and additional 
populations within the boundaries of the proposed critical habitat. Our 
proposed critical habitat includes all verified populations of both 
species and additional suitable habitats into which the species 
populations can expand. Therefore, we conclude that our proposed 
critical habitat boundaries would be sufficient to ensure species 
viability for both species over the long term.
    When determining proposed critical habitat boundaries, we did not 
attempt to avoid developed areas such as lands covered by buildings, 
pavement, and other structures because minimal development exists 
within habitat for these two species. Although any developed areas lack 
the physical or biological features necessary for Graham's and White 
River beardtongues, both of these species grow in remote areas that 
have not yet experienced considerable development and, for the most 
part, have few developed roads crossing through them at this time. 
However, any developed lands occurring inside the critical habitat 
boundaries shown on the maps of this proposed rule are excluded by text 
in this proposed rule and are not proposed for designation as critical 
habitat. Therefore, if the critical habitat is finalized as proposed, a 
federal action involving already developed areas would not, in most 
cases, trigger section 7 consultation.
    We delineated the proposed critical habitat unit boundaries for 
Graham's beardtongue and White River beardtongue using the following 
steps:
    (1) We mapped all plant points on file (using ArcMap 10.0) at the 
Utah Natural

[[Page 47840]]

Heritage Program (UNHP), Colorado Natural Heritage Program (CNHP), and 
the BLM (see the proposed listing rule published elsewhere in today's 
Federal Register for more details). These data consist of point 
locations collected over several decades by organizations, agencies, or 
consultants.
    (2) For Graham's beardtongue, we examined Bing Maps Aerial imagery 
(provided with ArcMap 10.0 software) and excluded all GIS locations 
that were collected prior to the year 2000, and that were farther than 
50 m (164 ft) from suitable habitat. Locations collected prior to 2000 
within 50 m (164 ft) of suitable habitat were retained in our dataset 
(GIS analysis 2013). If it was not clear from looking at the aerial 
imagery whether the point was in suitable habitat, we erred on the side 
of the species and included the point in our proposed critical habitat 
areas.
    Through this process, we removed 15 point locations from our 
Graham's beardtongue dataset. Most of the historical points that we 
removed overlapped or were very close to recently collected data. We 
removed a historical point from Carbon County from our proposed 
critical habitat area that has not been revisited for more than 30 
years, even though this is the only point in that county. We 
acknowledge that there is potential habitat in the area, but this point 
needs to be revisited to confirm whether the species is present near 
this location.
    For White River beardtongue, we did not remove any historical 
points because they all appeared to be within or adjacent to suitable 
habitat. The exception is 16 points from herbaria records ranging from 
the vicinity of Bitter Creek west to Willow Creek, which we have not 
confirmed as White River beardtongue and therefore do not include in 
proposed critical habitat for this plant.
    (3) For Graham's beardtongue data from Utah, we created proposed 
critical habitat areas by including all pollinator habitat within 700 m 
(2,297 ft) around each point. We then dissolved boundaries between the 
overlapping polygons. We did not have as complete a dataset for 
Colorado as for Utah, so we combined all of the point and polygon data 
we received from the CNHP, and calculated pollinator habitat areas 
within 700 m (2,297 ft) (see Sites for Breeding, Reproduction, or 
Rearing (or Development) of Offspring, above). We also created our own 
polygon to incorporate suitable habitat on Raven Ridge, which we 
identified via aerial imagery.
    We followed a similar protocol for White River beardtongue, but 
instead created pollinator habitat areas within 500 m (1,640 ft) around 
all points. We did this for both Utah and Colorado points.
    (4) Critical habitat units are not one contiguous unit; rather, 
each contains several polygons. Each polygon is a subunit containing 
the PCEs within the larger unit that contain the essential features and 
are occupied. Proposed units are separated from each other by either 
relatively great distance or by geographic features. Units for Graham's 
beardtongue are essentially the same as in the January 19, 2006, 
proposed rule (71 FR 3158), although the proposed unit boundaries are 
expanded slightly to include new data. Proposed units for White River 
beardtongue are delineated based on geographic features that separated 
polygons.
    We are proposing for designation as critical habitat lands that we 
have determined are occupied and contain sufficient elements of 
physical or biological features to support life-history processes 
essential for the conservation of Graham's and White River 
beardtongues.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document in the rule portion. We include more detailed 
information on the boundaries of the critical habitat designation in 
the preamble of this document. We will make the coordinates or plot 
points that the maps are based on available to the public at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0082, on our Internet 
site at http://www.fws.gov/utahfieldoffice, and at the field office 
responsible for the designation (see FOR FURTHER INFORMATION CONTACT 
above).

Proposed Critical Habitat Designation

Graham's beardtongue

    We are proposing five units as critical habitat for Graham's 
beardtongue, which are the same units we proposed in 2006, although the 
boundaries of each unit have changed (71 FR 3158, January 19, 2006). 
The critical habitat units we describe below constitute our best 
assessment of areas that meet the definition of critical habitat for 
Graham's beardtongue. The five units we propose as critical habitat 
are: (1) Sand Wash, (2) Seep Ridge, (3) Evacuation Creek, (4) White 
River, and (5) Raven Ridge. All of these units contain occupied 
Graham's beardtongue habitat. The approximate acreage and land 
ownership status of each proposed critical habitat unit is shown in 
Table 1.

  Table 1--Acreage and Land Ownership Status for the Proposed Critical Habitat Units for Graham's Beardtongue.
                    Area Estimates Reflect All Land Within Critical Habitat Unit Boundaries.
----------------------------------------------------------------------------------------------------------------
          Critical habitat unit                  Land ownership                       Size of unit
----------------------------------------------------------------------------------------------------------------
1. Sand Wash............................  BLM........................  3,056 ha (7,550 ac).
                                          State......................  27 ha (66 ac).
                                          Private....................  76 ha (189 ac).
                                                                      ------------------------------------------
                                             Total...................  3,159 ha (7,805 ac).
----------------------------------------------------------------------------------------------------------------
2. Seep Ridge...........................  BLM........................  6,649 ha (16,430 ac).
                                          State......................  2,650 ha (6,549 ac).
                                          Private....................  862 ha (2,131 ac).
                                                                      ------------------------------------------
                                             Total...................  10,162 ha (25,110 ac).
----------------------------------------------------------------------------------------------------------------
3. Evacuation Creek.....................  BLM........................  3,879 ha (9,586 ac).
                                          State......................  1,417 ha (3,502 ac).
                                          Private....................  1,632 ha (4,033 ac).
                                                                      ------------------------------------------
                                             Total...................  6,929 ha (17,122 ac).
----------------------------------------------------------------------------------------------------------------
4. White River..........................  BLM........................  2,243 ha (5,542 ac).

[[Page 47841]]

 
                                          State......................  401 ha (991 ac).
                                          Private....................  2,047 ha (5,059 ac).
                                                                      ------------------------------------------
                                             Total...................  4,691 ha (11,592 ac).
----------------------------------------------------------------------------------------------------------------
5. Raven Ridge..........................  BLM........................  2,257 ha (5,578 ac).
                                          Private....................  304 ha (752 ac).
                                             Total...................  2,562 ha (6,330 ac).
----------------------------------------------------------------------------------------------------------------
Total Across All Units..................  BLM........................  18,084 ha (44,686 ac).
                                          State......................  4,495 ha (11,108 ac).
                                          Private....................  4,921 ha (12,164 ac).
                                             Total...................  27,502 ha (67,959 ac)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of the proposed units, and reasons 
why they meet the definition of critical habitat for Graham's 
beardtongue, below. The units are listed in order geographically west 
to east, and north to south.
Unit 1: Sand Wash
    The Sand Wash Unit is the westernmost proposed critical habitat 
unit found in the vicinity of Sand Wash in southwestern Uintah County 
and adjacent Duchesne County, Utah. This unit contains nine subunits, 
and each subunit is occupied and contains all of the physical and 
biological features essential to the conservation of the species, 
including outcrops of the Parachute Creek member and other upper 
members of the Green River Geologic Formation, the appropriate plant 
community including other oil shale endemics, a climate with 15 to 30 
cm (6 to 12 in.) in annual precipitation, and intact pollinator 
habitat. This unit is occupied and includes approximately 62 Graham's 
beardtongue locations representing at least 1,156 plants and seven 
populations. This unit is the most geographically isolated from the 
other units and has minor differences in flower and vegetation color 
from the remainder of Graham's beardtongue populations (Shultz and Mutz 
1979, p. 41). These color differences may indicate that this unit, due 
to geographic isolation, is genetically divergent from the remainder of 
the species' population.
    Factors affecting Graham's beardtongue within this unit, regardless 
of land ownership, include energy development, domestic livestock and 
native grazing and trampling, and road impacts, including road 
maintenance, increased fugitive dust, and spreading invasive weeds. A 
majority of this unit is managed by the BLM, where Graham's beardtongue 
receives some protection via a signed conservation agreement and as a 
BLM special status species (see Factor D in our proposed listing rule 
published elsewhere in today's Federal Register for more details).
    No oil and gas wells are located within the Sand Wash Unit, 
although 66 percent of the area is leased for oil and gas. Private 
mineral rights do not require leases to develop and so are not included 
in the total. Oil shale and tar sand leases discussed include only 
Federal leases of oil shale and tar sands. None of the critical habitat 
in this unit falls within designated oil shale or tar sands areas. 
Nearly the entire unit is leased as grazing allotments. At least one 
class B (graveled) road and several class D roads pass through this 
unit. Class B roads are highways, roads, or streets designated and 
maintained by a county. Class D roads are unmaintained. OHV use and 
unauthorized collection have not been documented within the Sand Wash 
unit, although a major road runs through this unit and these stressors 
could potentially occur here. A cohesive management strategy will be 
necessary to reduce threats and protect the physical and biological 
features essential to the conservation of the species.
Unit 2: Seep Ridge
    The Seep Ridge Unit occurs approximately 17 miles east of the Sand 
Wash Unit, in the vicinity of Buck, Sunday School, and Klondike Canyons 
near the Seep Ridge Road in south central Uintah County, Utah. This 
unit contains ten subunits, and each subunit is occupied and contains 
all of the physical and biological features essential to the 
conservation of the species including outcrops of the Parachute Creek 
member and other upper members of the Green River Geologic Formation, 
the appropriate plant community including other oil shale endemics, a 
climate with 20 to 30 cm (8 to 12 in) in annual precipitation, and 
intact pollinator habitat. This unit is occupied and includes 
approximately 1,442 Graham's beardtongue points representing at least 
8,017 plants and seven populations.
    Factors affecting Graham's beardtongue within this unit include 
energy development, domestic livestock and native grazing and 
trampling, and road impacts, including road maintenance, increased 
fugitive dust, and spreading invasive weeds. The Seep Ridge Unit is 
managed mostly by the BLM, although it includes the most State and 
Institutional Trust Lands (SITLA) lands managed by the State of Utah of 
any of the proposed units. The SITLA land in this unit contains 
occupied and suitable habitat (GIS analysis 2013). To date, SITLA has 
not provided protection to Graham's beardtongue on the lands it manages 
in the Uinta Basin where energy development exists.
    Four producing gas wells occur across all ownerships within the 
Seep Ridge Unit (GIS analysis 2013). An additional 13 gas wells are in 
various states of abandonment (plugged and abandoned, operations 
suspended, or shut-in) but may have resulted in the loss of plants and 
their habitat when they were active. Approximately 30 percent of the 
Seep Ridge Unit is leased for traditional oil and gas development, and 
38 percent falls within oil shale and tar sands lease areas (some of 
these lease areas overlap current oil and gas leases). Combined, about 
56 percent of the Seep Ridge Unit is leased or open for leasing for 
energy development.
    Several roads cross through the Seep Ridge Unit, including four 
class B (graveled) roads and at least eight class D roads. Seep Ridge 
Road crosses through a portion of one population of

[[Page 47842]]

Graham's beardtongue. This road was paved and widened within occupied 
Graham's beardtongue habitat in 2012, and 33 Graham's beardtongue 
individuals were salvaged or transplanted as a result (see our proposed 
listing rule published elsewhere in today's Federal Register for more 
details). The entirety of this unit is leased as grazing allotments. 
OHV use and unauthorized collection have not been documented within the 
Seep Ridge unit, although several major roads run through this unit and 
these stressors could potentially occur here. A cohesive management 
strategy will be necessary to reduce threats and protect the physical 
and biological features essential to the conservation of the species.
Unit 3: Evacuation Creek
    The Evacuation Creek Unit occurs approximately 6 miles 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. The Evacuation Creek Unit is occupied and contains 
the most individuals of Graham's beardtongue: Approximately 1,375 
points representing at least 15,077 plants and three populations. This 
unit contains four subunits, and each subunit is occupied and contains 
all of the physical and biological features essential to the 
conservation of the species including outcrops of the Parachute Creek 
member and other upper members of the Green River Geologic Formation, 
the appropriate plant community including other oil shale endemics, a 
climate with 20 to 30 cm (8 to 12 in) in annual precipitation, and 
intact pollinator habitat.
    Factors affecting Graham's beardtongue within this unit include 
energy development, domestic livestock and native grazing and 
trampling, and road impacts, including road maintenance, increased 
fugitive dust, and spreading invasive weeds. Most of this unit is 
managed by the BLM, with some private and State lands. One producing 
gas well lies within the Evacuation Creek unit. An additional 17 wells 
are plugged and abandoned but may have resulted in the loss of plants 
and their habitat when they were active. Approximately 36 percent of 
the Evacuation Creek Unit is leased for traditional oil and gas 
development, and 39 percent falls within oil shale and tar sands lease 
areas (some of these lease areas overlap current oil and gas leases). 
Combined, about 69 percent of the Evacuation Creek Unit is leased or 
open for leasing for energy development. The entire unit is leased as 
grazing allotments. Several roads cross through the Evacuation Creek 
Unit, including three class B (graveled) roads and at least eight class 
D roads. A cohesive management strategy will be necessary to reduce 
threats and protect the physical and biological features essential to 
the conservation of the species.
Unit 4: White River
    The White River Unit occurs approximately 3 miles north of the 
Evacuation Creek unit in Hells Hole and Weaver Canyons immediately 
south of the White River. This unit in eastern Uintah County, Utah, 
includes approximately 1,565 points representing at least 7,385 plants 
and one population. This unit contains four subunits, and each subunit 
is occupied and contains all of the physical and biological features 
essential to the conservation of the species including outcrops of the 
Parachute Creek member and other upper members of the Green River 
Geologic Formation, the appropriate plant community including other oil 
shale endemics, suitable elevation ranges of 1,484 to 2,113 m (4,869 to 
6,932 ft), a climate with 20 to 30 cm (8 to 12 in.) in annual 
precipitation, and intact pollinator habitat.
    Factors affecting Graham's beardtongue within this unit include 
energy development, domestic livestock and native grazing and 
trampling, and road impacts, including road maintenance, increased 
fugitive dust, and spreading invasive weeds. Approximately 50 percent 
of this unit is managed by the BLM. The other 50 percent is privately 
and State owned. No producing wells occur within the White River Unit. 
Approximately 27 percent of the White River Unit is leased for 
traditional oil and gas development, and 22 percent falls within oil 
shale and tar sands lease areas (some of these lease areas overlap 
current oil and gas leases). Combined, about 43 percent of the White 
River Unit is leased or open for leasing for energy development. 
Although this critical habitat unit has less area available for oil 
shale and tar sands leasing than other critical habitat units, this 
unit includes a proposed oil shale mining project (Enefit) that is 
likely to impact 20 percent of the known individuals of Graham's 
beardtongue (see our proposed listing rule published elsewhere in 
today's Federal Register for more details).
    Overall, the most substantial threat within the White River Unit is 
oil shale development. About half of this unit is in private or State 
ownership that is likely to be mined for oil shale in the future. 
Direct loss of habitat or individuals within this critical habitat unit 
is also likely to have impacts on the Evacuation Creek and Raven Ridge 
Units, as the White River Unit serves as an important connection 
between the Utah and Colorado populations of Graham's beardtongue.
    This entire unit is leased as grazing allotments. A small portion 
of a class B (graveled) road and several class D roads pass through the 
White River Unit, but this unit is more remote than the other critical 
habitat units. A cohesive management strategy will be necessary to 
reduce threats and protect the physical and biological features 
essential to the conservation of the species.
Unit 5: Raven Ridge
    The Raven Ridge Unit occurs approximately 4 miles 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 includes approximately 11 points 
representing at least 33 plants and four populations. Although 
population estimates within this unit in 2006 were 200 plants, more 
recent surveys have not located as many individuals. This unit contains 
three subunits, and each subunit is occupied and contains all of the 
physical and biological features essential to the conservation of the 
species including outcrops of the Parachute Creek member and other 
upper members of the Green River Geologic Formation, the appropriate 
plant community including other oil shale endemics, a climate with 15 
to 30 cm (6 to 12 in.) in annual precipitation, and intact pollinator 
habitat.
    Factors affecting Graham's beardtongue within this unit include 
energy development, domestic livestock and native grazing and 
trampling, and road impacts, including road maintenance, increased 
fugitive dust, and spreading invasive weeds. This unit is primarily 
managed by the BLM, with some private lands.
    Sixty percent of this unit is within the BLM Raven Ridge Area of 
Critical Environmental Concern (ACEC), which was established to protect 
listed, candidate, and BLM-sensitive species. The ACEC restricts 
motorized travel to existing roads and trails and includes a no surface 
occupancy (NSO) stipulation for new oil and gas leases within the ACEC 
(BLM 1997, p. 2-19, 2-44). Although the Raven Ridge ACEC sets out goals 
for a management plan for the

[[Page 47843]]

area, BLM has not completed a formal management plan for this area.
    No producing wells occur within the Raven Ridge Unit, although two 
abandoned wells may have resulted in the loss of plants and their 
habitat when they were active. Approximately 27 percent of the Raven 
Ridge Unit is leased for traditional oil and gas development, but none 
of this unit falls within oil shale and tar sands lease areas. An 
additional 30 percent of the Raven Ridge ACEC was proposed for leasing 
in 2013, but the lease sale is now deferred for further analysis (BLM 
2013, entire). The entirety of this unit is leased as grazing 
allotments. One class B road passes through the Raven Ridge Unit. 
Overall, a cohesive, unit-wide management strategy is still needed to 
protect Graham's beardtongue across the entire unit.

White River Beardtongue

    We are proposing three units as critical habitat for White River 
beardtongue. The critical habitat areas we describe below constitute 
our best assessment of areas that meet the definition of critical 
habitat for White River beardtongue. The three units we propose as 
critical habitat are: (1) North Evacuation Creek, (2) Weaver Ridge, and 
(3) South Raven Ridge. All of these units are occupied by White River 
beardtongue. The approximate acreage of each proposed critical habitat 
unit is shown in Table 2.

 Table 2--Acreage and Land Ownership Status for the Proposed Critical Habitat Units for White River Beardtongue.
                    Area Estimates Reflect All Land Within Critical Habitat Unit Boundaries.
----------------------------------------------------------------------------------------------------------------
          Critical habitat unit                   Land ownership                       Size of unit
----------------------------------------------------------------------------------------------------------------
1. North Evacuation Creek................  BLM.........................  1,368 ha (3,382 ac).
                                           State.......................  185 ha (457 ac).
                                           Private.....................  1,415 ha (3,498 ac).
                                                                        ----------------------------------------
                                              Total....................  2,969 ha (7,336 ac).
----------------------------------------------------------------------------------------------------------------
2. Weaver Ridge..........................  BLM.........................  788 ha (1,946 ac).
                                           State.......................  651 ha (1,608 ac).
                                           Private.....................  1,397 ha (3,452 ac).
                                                                        ----------------------------------------
                                              Total....................  2,836 ha (7,006 ac).
----------------------------------------------------------------------------------------------------------------
3. South Raven Ridge.....................  BLM.........................  191 ha (472 ac).
                                           Private.....................  41 ha (101 ac).
                                                                        ----------------------------------------
                                              Total....................  232 ha (573 ac).
----------------------------------------------------------------------------------------------------------------
Total Across All Units...................  BLM.........................  2,347 ha (573 ac).
                                           State.......................  836 ha (2,853 ac).
                                           Private.....................  2,853 ha (7,051 ac).
                                                                        ----------------------------------------
                                              Total....................  6,036 ha (14,914 ac).
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for White River beardtongue, 
below. The units are listed in order geographically south to north. 
There is no obvious geographical or biological barrier between the 
Evacuation Creek and White River critical habitat units. We chose to 
separate these units based on splitting the known Utah populations into 
a northern half and a southern half. We also discuss where White River 
beardtongue critical habitat overlaps Graham's beardtongue critical 
habitat--approximately 54 percent of all proposed White River 
beardtongue critical habitat overlaps with Graham's beardtongue's 
proposed critical habitat.
Unit 1: North Evacuation Creek
    The North Evacuation Creek Unit occurs about 11 km (7 miles) south 
and east of Bonanza, Utah, 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. The North Evacuation Creek Unit contains 
approximately 259 points representing at least 6,820 plants and three 
populations. Fifty-three percent of this unit overlaps with Graham's 
beardtongue proposed critical habitat. This unit contains nine 
subunits, and each subunit is occupied and contains all of the physical 
and biological features essential to the conservation of the species 
including outcrops of the Parachute Creek member and other upper 
members of the Green River Geologic Formation, the appropriate plant 
community including other oil shale endemics, a climate with 20 to 30 
cm (8 to 12 in) in annual precipitation, and intact pollinator habitat.
    Factors affecting White River beardtongue within this unit include 
energy development, domestic livestock and native grazing and 
trampling, and road impacts, including road maintenance, increased 
fugitive dust, and spreading invasive weeds. This unit is split almost 
evenly by BLM and private landownership, with a small amount of State 
land. Four plugged and abandoned wells are located within the North 
Evacuation Creek Unit but may have resulted in the loss of plants and 
their habitat when they were active. Approximately 10 percent of the 
North Evacuation Creek Unit is leased for traditional oil and gas 
development, and 39 percent falls within oil shale and tar sands lease 
areas, with very little overlap between the two lease types. 
Additionally, a majority of the critical habitat areas included in this 
unit occurs on private land and is therefore not included in these 
lease totals. Combined, about 49 percent of the North Evacuation Creek 
unit is leased or open for leasing for energy development. The entire 
portion of this unit on BLM land is grazed. Several roads cross through 
the North Evacuation Creek unit, including four graveled, class B 
roads. A cohesive management strategy will be necessary

[[Page 47844]]

to reduce threats and protect the physical and biological features 
essential to the conservation of the species.
Unit 2: Weaver Ridge
    The Weaver Ridge Unit occurs directly east and southeast of 
Bonanza, Utah, and immediately north of the North Evacuation Creek 
Unit. This unit is in southeastern Uintah County, Utah, and adjacent 
Rio Blanco County, Colorado. The Weaver Ridge Unit includes 
approximately 319 points representing at least 4,575 plants and 3 
populations. Fifty-five percent of this unit overlaps with proposed 
Graham's beardtongue critical habitat. This unit contains thirteen 
subunits, and each subunit is occupied and contains all of the physical 
and biological features essential to the conservation of the species 
including outcrops of the Parachute Creek member and other upper 
members of the Green River Geologic Formation, the appropriate plant 
community including other oil shale endemics, a climate with 15 to 30 
cm (6 to 12 in.) in annual precipitation, and intact pollinator 
habitat.
    Factors affecting White River beardtongue within this unit include 
energy development, domestic livestock and native grazing and 
trampling, and road impacts, including road maintenance, increased 
fugitive dust, and spreading invasive weeds. Most of this unit is 
privately owned, with some BLM and State land. Although most of the 
critical habitat within this unit occurs on private land, most of the 
known plant points occur on Federal lands. This is not surprising, as 
private lands are not typically surveyed, and we expect that additional 
surveys conducted on private lands would count many more individuals of 
White River beardtongue within this unit.
    Two producing wells and three approved well locations are located 
within the Weaver Ridge Unit. Approximately 31 percent of the Weaver 
Ridge Unit is leased for traditional oil and gas development, and 19 
percent falls within oil shale and tar sands lease areas. Combined, 
about 45 percent of the Weaver Ridge Unit is leased or, in the case of 
oil shale and tar sands development, designated for leasing for energy 
development. The entire portion of the unit on BLM lands is grazed. A 
paved State road, the Bonanza Highway, crosses just through the edge of 
a critical habitat area within the Weaver Ridge Unit, and another paved 
class B road skirts another area. A cohesive management strategy will 
be necessary to reduce threats and protect the physical and biological 
features essential to the conservation of the species.
Unit 3: South Raven Ridge
    The South Raven Ridge Unit occurs about 10 km northeast of the 
Weaver Ridge Unit and about 11 km west of Rangely, Colorado, on the 
southern portion of Raven Ridge overlooking the White River. This unit 
is entirely within Rio Blanco County, Colorado. The South Raven Ridge 
Unit is the smallest unit for this species and contains 6 points 
representing at least 28 plants and 1 population. Fifty-nine percent of 
this unit overlaps with Graham's beardtongue critical habitat. This 
unit has all the physical and biological features essential to the 
conservation of the species including outcrops of the Parachute Creek 
member and other upper members of the Green River Geologic Formation, 
the appropriate plant community including other oil shale endemics, a 
climate with 15 to 30 cm (6 to 12 in) in annual precipitation, and 
intact pollinator habitat.
    Factors affecting White River beardtongue within this unit include 
domestic livestock and native grazing and trampling, and some road 
impacts, including road maintenance, increased fugitive dust, and 
spreading invasive weeds. No oil or gas wells are located within the 
South Raven Ridge Unit. This unit is mostly on BLM lands with some 
private lands. Approximately 20 percent of the South Raven Ridge Unit 
is leased for traditional oil and gas development. None of this unit 
falls within oil shale and tar sands lease areas. All of the BLM-
managed lands in this unit are grazed. No major roads cross through 
this unit. Sixty-four percent of this unit is within the Raven Ridge 
ACEC (discussed above), with restricted motorized travel and NSO 
stipulations (BLM 1997, p. 2-19, 2-44). As described above, although 
the Raven Ridge ACEC sets out goals for a management plan for the area, 
BLM has not completed a formal management plan for this area. Overall, 
threats occur across the entire unit, and thus a cohesive management 
strategy will be necessary to reduce threats and protect the physical 
and biological features essential to the conservation of the species.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:

[[Page 47845]]

    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which consultation has been completed, if those 
actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for Graham's beardtongue and 
White River beardtongue. As discussed above, the role of critical 
habitat is to support life-history needs of the species and provide for 
the conservation of these species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for Graham's beardtongue or White River beardtongue. These 
activities include, but are not limited to:
    (1) Actions that have the potential to appreciably degrade or 
destroy Graham's beardtongue or White River beardtongue habitat and 
primary constituent elements. Such activities could include, but are 
not limited to, energy development, road construction and maintenance, 
OHV use, and intensive livestock grazing. These activities could 
eliminate or reduce the habitat necessary for the growth, reproduction, 
and establishment of these species;
    (2) Alteration of naturally existing hydrology by redirection of 
sheet flow or water ``perching'' (to which the species may be adapted, 
discussed above in Soils and Geology for Graham's beardtongue) from 
areas adjacent to occupied habitat;
    (3) Compaction of soil through the establishment of new wellpads, 
roads, pipelines, or trails;
    (4) Activities that foster the introduction of nonnative 
vegetation, particularly noxious weeds, or create conditions that 
encourage the growth of nonnatives. These activities could include, but 
are not limited to: Supplemental feeding of livestock, ground 
disturbance associated with energy development, roads, and other soil-
disturbing activities; and
    (5) Indirect effects that appreciably decrease habitat value or 
quality (e.g., energy development near critical habitat that leads to 
disturbance, erosion, herbicide and pesticide use that could impair 
pollinators, and changes to drainage patterns, soil stability, and 
vegetative community composition).

Exemptions

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

    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete an integrated natural resources management plan (INRMP) by 
November 17, 2001. The INRMPs must to the extent appropriate and 
applicable, provide for fish and wildlife management; fish and wildlife 
habitat enhancement or modification; wetland protection, enhancement, 
and restoration where necessary to support fish and wildlife; and 
enforcement of applicable natural resource laws. There are no 
Department of Defense lands within our proposed critical habitat 
designation.

Exclusions

Application of Section 4(b)(2) of the Act

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

[[Page 47846]]

Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. All of the proposed critical habitat units contain private 
lands, Federal lands with oil and gas leases, and grazing permits. 
Several State-owned parcels are included in some units where oil and 
gas development occurs. The economic analysis will estimate the 
economic impact of a potential designation of critical habitat on these 
activities.
    During the development of a final designation, we will consider 
economic impacts based on information in our economic analysis, public 
comments, and other new information, and areas may be excluded from the 
final critical habitat designation under section 4(b)(2) of the Act and 
our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
where a national security impact might exist. In preparing this 
proposal, we have determined that the lands within the proposed 
designation of critical habitat for Graham's beardtongue and White 
River beardtongue are not owned or managed by the Department of Defense 
or Department of Homeland Security, and, therefore, we anticipate no 
impact on national security. Consequently, the Secretary is not 
intending to exercise her discretion to exclude any areas from the 
final designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any habitat conservation plans (HCPs) or 
other management plans for the area, or whether there are conservation 
partnerships that would be encouraged by designation of, or exclusion 
from, critical habitat. In addition, we look at any tribal issues, and 
consider the government-to-government relationship of the United States 
with tribal entities. We also consider any social impacts that might 
occur because of the designation. There are no tribal lands included in 
our proposed critical habitat designation.
    In preparing this proposal, we have determined that there are no 
HCPs or other management plans for Graham's beardtongue and White River 
beardtongue, and the proposed designation does not include any tribal 
lands or trust resources. We anticipate no impact on tribal lands, 
partnerships, or HCPs from this proposed critical habitat designation. 
Accordingly, the Secretary does not intend to exercise her discretion 
to exclude any areas from the final designation based on other relevant 
impacts.

Peer Review

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

Public Hearings

    Section 4(b)(5) of the Act provides for one or more public hearings 
on this proposal, if requested. Requests must be received within 45 
days after the date of publication of this proposed rule in the Federal 
Register. Such requests must be sent to the address shown in the FOR 
FURTHER INFORMATION CONTACT section. We will schedule public hearings 
on this proposal, if any are requested, and announce the dates, times, 
and places of those hearings, as well as how to obtain reasonable 
accommodations, in the Federal Register and local newspapers at least 
15 days before the hearing.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as manufacturing and mining concerns with fewer 
than 500 employees, wholesale trade entities with fewer than 100 
employees, retail and service businesses with less than $5 million in 
annual sales, general and heavy construction businesses with less than 
$27.5 million in annual business, special trade contractors doing less 
than $11.5 million in annual business, and forestry and logging 
operations with fewer than 500 employees and annual business less than 
$7 million. To determine whether small entities may be affected, we 
will consider the types

[[Page 47847]]

of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    Importantly, the incremental impacts of a rule must be both 
significant and substantial to prevent certification of the rule under 
the RFA and to require the preparation of an initial regulatory 
flexibility analysis. If a substantial number of small entities are 
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify. 
Likewise, if the per-entity economic impact is likely to be 
significant, but the number of affected entities is not substantial, 
the Service may also certify.
    Under the RFA, as amended, and following recent court decisions, 
Federal agencies are only required to evaluate the potential 
incremental impacts of rulemaking on those entities directly regulated 
by the rulemaking itself, and not the potential impacts to indirectly 
affected entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried by the Agency is not 
likely to adversely modify critical habitat. Therefore, only Federal 
action agencies are directly subject to the specific regulatory 
requirement (avoiding destruction and adverse modification) imposed by 
critical habitat designation. Under these circumstances, it is our 
position that only Federal action agencies will be directly regulated 
by this designation. Therefore, because Federal agencies are not small 
entities, the Service may certify that the proposed critical habitat 
rule will not have a significant economic impact on a substantial 
number of small entities.
    We acknowledge, however, that in some cases, third-party proponents 
of the action subject to permitting or funding may participate in a 
section 7 consultation, and thus may be indirectly affected. We believe 
it is good policy to assess these impacts if we have sufficient data 
before us to complete the necessary analysis, whether or not this 
analysis is strictly required by the RFA. While this regulation does 
not directly regulate these entities, in our draft economic analysis we 
will conduct a brief evaluation of the potential number of third 
parties participating in consultations on an annual basis in order to 
ensure a more complete examination of the incremental effects of this 
proposed rule in the context of the RFA.
    In conclusion, we believe that, based on our interpretation of 
directly regulated entities under the RFA and relevant case law, this 
designation of critical habitat will only directly regulate Federal 
agencies which are not by definition small business entities. As such, 
we certify that, if promulgated, this designation of critical habitat 
would not have a significant economic impact on a substantial number of 
small business entities. Therefore, an initial regulatory flexibility 
analysis is not required. However, though not necessarily required by 
the RFA, in our draft economic analysis for this proposal, we will 
consider and evaluate the potential effects to third parties that may 
be involved with consultations with Federal action agencies related to 
this action.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. Graham's beardtongue and White River beardtongue both 
occur in areas with energy development activity. Existing well pads and 
proposed oil shale development projects are within proposed critical 
habitat units. On Federal lands, entities conducting energy-related 
activities would need to consult within areas designated as critical 
habitat. We are deferring our finding until the draft economic analysis 
has been completed. We will further evaluate this issue as we conduct 
our economic analysis, and review and revise this assessment as 
warranted.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments. Small governments will be affected 
only to the extent that any programs having Federal funds, permits, or 
other authorized activities must ensure that their actions will not 
adversely affect the critical habitat. Therefore, a Small Government 
Agency

[[Page 47848]]

Plan is not required. However, we will further evaluate this issue as 
we conduct our economic analysis, and review and revise this assessment 
if appropriate.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Graham's beardtongue and White 
River beardtongue in a takings implications assessment. Based on the 
best available information, the takings implications assessment 
concludes that this designation of critical habitat for the Graham's 
beardtongue and the White River beardtongue does not pose significant 
takings implications. However, we will further evaluate this issue as 
we develop our final designation, and review and revise this assessment 
as warranted.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
federalism summary impact statement is not required. In keeping with 
Department of the Interior and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
proposed critical habitat designation with appropriate State resource 
agencies in Utah and Colorado. The designation of critical habitat in 
areas occupied by Graham's beardtongue and White River beardtongue may 
impose nominal additional regulatory restrictions to those currently in 
place and, therefore, has little incremental impact on State and local 
governments and their activities. The designation may have some benefit 
to these governments because the areas that contain the physical and 
biological features essential to the conservation of the species are 
more clearly defined, and the elements of the features of the habitat 
necessary to the conservation of the species are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist local 
governments in along-range planning (rather than having them wait for 
case-by-case section 7 consultation to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

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

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).] However, when the 
range of the species includes States within the Tenth Circuit, such as 
that of Graham's beardtongue and White River beardtongue, under the 
Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. 
Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we will 
undertake a NEPA analysis for critical habitat designation and notify 
the public of the availability of the draft environmental assessment 
for this proposal when it is finished.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
tribes in developing programs for healthy ecosystems, to acknowledge 
that tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to tribes.
    We determined that there are no tribal lands that were occupied by 
Graham's beardtongue or White River beardtongue at the time of listing 
that contain the features essential for conservation of the species, 
and no tribal lands unoccupied by Graham's beardtongue or White River 
beardtongue that are essential for the conservation of these species. 
Therefore, we are not proposing to designate critical habitat for 
Graham's beardtongue or White River beardtongue on tribal lands.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES

[[Page 47849]]

section. To better help us revise the rule, your comments should be as 
specific as possible. For example, you should tell us the numbers of 
the sections or paragraphs that are unclearly written, which sections 
or sentences are too long, the sections where you feel lists or tables 
would be useful, etc.

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at http://www.regulations.gov under Docket No. FWS-R6-
ES-2013-0082 and upon request from the Utah Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this package are the staff members of the 
Utah Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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

0
2. In Sec.  17.96, amend paragraph (a) by adding entries for 
``Penstemon grahamii (Graham's beardtongue)'' and ``Penstemon scariosus 
var. albifluvis (White River beardtongue)'' in alphabetical order under 
Family Plantaginaceae, to read as follows:


Sec.  17.96  Critical habitat--plants.

* * * * *
    (a) Flowering plants.
* * * * *
Family Plantaginaceae: Penstemon grahamii (Graham's beardtongue)
    (1) Critical habitat units are depicted for Uintah and Duchesne 
Counties, Utah, and Rio Blanco County, Colorado, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of 
Graham's beardtongue consist of:
    (i) Plant community.
    (A) Barren areas with little, but diverse, plant cover.
    (B) Presence of dwarf shrubs and cushion-like, oil shale endemic 
plants, including Dragon milkvetch (Astragalus lutosus), oilshale 
columbine (Aquilegia barnebyi), Barneby's thistle (Cirsium barnebyi), 
oilshale cryptantha (Cryptantha barnebyi), Graham's cryptantha 
(Cryptantha grahamii), Rollins' cryptantha (Cryptantha rollinsii), 
ephedra buckwheat (Eriogonum ephedroides), and White River beardtongue 
(Pensemon scariosus var. albifluvis).
    (C) Intact, surrounding, native plant community to support 
pollinators and protect from the encroachment of invasive weeds and 
other potential threats.
    (ii) Slopes and topography.
    (A) Southwest- to western-facing slopes.
    (B) Slopes of less than 40 degrees; average slope of 17.6 degrees.
    (iii) Soils and geology.
    (A) Parachute Creek Member and other upper members of the Green 
River Geologic Formation.
    (B) Appropriate soil morphology characterized by shallow soils with 
virtually no soil horizon development, with a surface usually covered 
by broken shale channers or light clay derived from the thinly bedded 
shale.
    (C) Intact soils with minimal anthropogenic disturbance (at or 
below current levels) within Graham's beardtongue occupied habitat and 
nearby plant communities.
    (iv) Climate. A cold desert climate with the same conditions under 
which the species evolved and is typical for the area. Annual 
precipitation of 15 to 30 cm (6 to 12 inches) with most precipitation 
in spring and fall and snow cover from December through March. Average 
winter low temperature of -14 [deg]C (7[emsp14][deg]F) and average 
summer high of 34 [deg]C (93 ([deg]F)) with at least 45 to 90 
consecutive days less than 4 [deg]C (40[emsp14][deg]F).
    (v) Habitat for pollinators.
    (A) Ground and twig nesting areas for pollinators. A diverse mosaic 
of native plant communities that include flowering plants that provide 
nectar and pollen for a wide array of pollinator species.
    (B) Connectivity between areas allowing pollinators to move from 
one site to the next within each population.
    (C) A 700-m (2,297-ft) area beyond occupied habitat to conserve the 
pollinators essential for plant reproduction.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this entry.
    (4) Critical habitat map units. Data layers defining map units were 
created by using satellite imagery (Bing 2012 Aerial Imagery basemap 
provided with ArcMap10, NAIP 2011 imagery). Units were mapped using NAD 
83 Universal Transverse Mercatore (UTM), Zone 12 N coordinates. 
Location information came from a wide array of sources. A habitat model 
created by the Colorado Natural Heritage Program was also used. The 
maps in this entry, as modified by any accompanying regulatory text, 
establish the boundaries of the critical habitat designation. On the 
index map, critical habitat is delineated by gray shading. Boxes around 
the gray shading indicate only which polygons are included within the 
same unit and do not delineate critical habitat boundaries. The 
coordinates or plot points or both on which each map is based are 
available to the public at the Service's internet site (http://www.fws.gov/utahfieldoffice/), on http://www.regulations.gov at Docket 
No. FWS-R6-ES-2013-0082, and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Index map follows:
BILLING CODE 4310-55-P

[[Page 47850]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.008

    (6) Unit 1: Sand Wash, Duchesne and Uintah Counties, Utah. Map of 
Subunits 1A, 1B, 1C, 1D, 1E, 1F, 1G, 1H, and 1I follows:

[[Page 47851]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.009

    (7) Unit 2: Seep Ridge, Uintah County, Utah. Map of Subunits 2A, 
2B, 2C, 2D, 2E, 2F, 2G, 2H, 2I, and 2J follows:

[[Page 47852]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.010

    (8) Unit 3: Evacuation Creek, Uintah County, Utah, and Rio Blanco 
County, Colorado. Map of Subunits 3A, 3B, 3C, and 3D follows:

[[Page 47853]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.011

    (9) Unit 4: White River, Uintah County, Utah. Map of Subunits 4A, 
4B, 4C, 4D, 5A, 5B, and 5C follows:

[[Page 47854]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.012

    (10) Unit 5: Raven Ridge, Rio Blanco County, Colorado. Map of Unit 
5 is provided at paragraph (a)(9) of this entry.
Family Plantaginaceae: Penstemon scariosus var. albifluvis (White River 
beardtongue)
    (1) Critical habitat units are depicted for Uintah County, Utah, 
and Rio Blanco County, Colorado, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of White 
River beardtongue consist of:
    (i) Plant community.
    (A) Barren areas with little, but diverse, plant cover.
    (B) Presence of dwarf shrubs and cushion-like, oil shale endemic 
plants, including Dragon milkvetch (Astragalus lutosus), oilshale 
columbine (Aquilegia barnebyi), Barneby's thistle (Cirsium barnebyi), 
oilshale cryptantha (Cryptantha barnebyi), Graham's cryptantha 
(Cryptantha grahamii), Rollins' cryptantha (Cryptantha rollinsii), 
ephedra buckwheat (Eriogonum ephedroides), and occasionally Graham's 
beardtongue (Penstemon grahamii).
    (C) Intact, surrounding, native plant community to support 
pollinators and protect from the encroachment of

[[Page 47855]]

invasive weeds and other potential threats.
    (ii) Slopes and topography.
    (A) South- to southwest-facing slopes.
    (B) Slopes of less than 33 degrees; average slope of 19.2 degrees.
    (iii) Soils and geology.
    (A) Parachute Creek Member and other upper members of the Green 
River Geologic Formation.
    (B) Appropriate soil morphology characterized by shallow soils with 
virtually no soil horizon development, with a surface usually covered 
by broken shale channers or light clay derived from the thinly bedded 
shale.
    (C) Intact soils with minimal anthropogenic disturbance (at or 
below current levels) within White River beardtongue occupied habitat 
and nearby plant communities.
    (iv) Climate. A cold desert climate with the same conditions under 
which the species evolved and is typical for the area. Annual 
precipitation of 15 to 30 cm (6 to 12 inches) with most precipitation 
in spring and fall and snow cover from December through March. Average 
winter low temperature of -14 [deg]C (7[emsp14][deg]F) and average 
summer high of 34 [deg]C (93 ([deg]F)) with at least 45 to 90 
consecutive days less than 4 [deg]C (40[emsp14][deg]F).
    (v) Habitat for pollinators.
    (A) Ground and twig nesting areas for pollinators. A diverse mosaic 
of native plant communities that include flowering plants that provide 
nectar and pollen for a wide array of pollinator species.
    (B) Connectivity between areas allowing pollinators to move from 
one site to the next within each population.
    (C) A 500-m (1,640-ft) area beyond occupied habitat to conserve the 
pollinators essential for plant reproduction.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this entry.
    (4) Critical habitat map units. Data layers defining map units were 
created by using satellite imagery (Bing 2012 Aerial Imagery basemap 
provided with ArcMap10, NAIP 2011 imagery). Units were mapped using NAD 
83 Universal Transverse Mercatore (UTM), Zone 12 N coordinates. 
Location information came from a wide array of sources. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. On the index map, 
critical habitat is delineated by gray shading. Boxes around the gray 
shading indicate only which polygons are included within the same unit 
and do not delineate critical habitat boundaries. The coordinates or 
plot points or both on which each map is based are available to the 
public at the Service's internet site (http://www.fws.gov/utahfieldoffice/), on http://www.regulations.gov at Docket No. FWS-R6-
ES-2013-0082, and at the field office responsible for this designation. 
You may obtain field office location information by contacting one of 
the Service regional offices, the addresses of which are listed at 50 
CFR 2.2.
    (5) Index map follows:

[[Page 47856]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.013

    (6) Unit 1: North Evacuation Creek, Uintah County, Utah, and Rio 
Blanco County, Colorado. Map of Subunits 1A, 1B, 1C, 1D, 1E, 1F, 1G, 
1H, and 1I follows:

[[Page 47857]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.014

    (7) Unit 2: Weaver Ridge, Uintah County, Utah, and Rio Blanco 
County, Colorado. Map of Subunits 2A, 2B, 2C, 2D, 2E, 2F, 2G, 2H, 2I, 
2J, 2K, 2L, 2M and Unit 3 follows:

[[Page 47858]]

[GRAPHIC] [TIFF OMITTED] TP06AU13.015

    (8) Unit 3: South Raven Ridge, Rio Blanco County, Colorado. Map of 
Unit 3 is provided at paragraph (a)(7) of this entry.
* * * * *

    Dated: July 18, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-18335 Filed 8-5-13; 8:45 am]
BILLING CODE 4310-55-C