[Federal Register Volume 79, Number 87 (Tuesday, May 6, 2014)]
[Proposed Rules]
[Pages 25806-25813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-10274]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket Nos. FWS-R6-ES-2013-0081; FWS-R6-ES-2013-0082; 4500030113]
RIN 1018-AY95; 1018-AZ61


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rules; reopening of comment period.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment periods on the August 6, 2013, proposed 
listing determination and the August 6, 2013, proposed designation of 
critical habitat for Penstemon grahamii (Graham's beardtongue) and 
Penstemon scariosus var. albifluvis (White River beardtongue) under the 
Endangered Species Act of 1973, as amended (Act). For the proposed 
listing determination, we also announce the availability of a draft 
conservation agreement. For the proposed designation of critical 
habitat for Graham's beardtongue and White River beardtongue, we also 
announce the availability of a draft economic analysis (DEA); draft 
environmental assessment (draft EA); and amended required 
determinations section. In addition, we request public comment on new 
occurrence data that have become available since the publication of the 
proposed rules. Comments previously submitted need not be resubmitted, 
as they will be fully considered in preparation of the final rules. We 
also announce that we will hold a public hearing on our proposed 
listing and proposed designation of critical habitat for these plants 
(see DATES and ADDRESSES).

DATES: Written comments: In order to ensure full consideration of your 
comments, submit them by close of business on July 7, 2014. 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.
    Public informational session and public hearing: We will hold a 
public informational session from 4:30 p.m. to 6:00 p.m., followed by a 
public hearing from 6:30 p.m. to 8:30 p.m., on Wednesday, May 28, 2014, 
(see ADDRESSES).

ADDRESSES: Document availability: You may obtain copies of the listing 
proposed rule and the draft conservation agreement on the Internet at 
http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0081, and 
copies of the critical habitat proposed rule and its associated DEA and 
draft EA on the Internet at http://www.regulations.gov at Docket No. 
FWS-R6-ES-2013-0082. All of these documents are also available on the 
Internet at http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/, or by mail from the Utah Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Written comments: You may submit written comments by one of the 
following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the proposed listing rule and 
draft conservation agreement by searching for Docket No. FWS-R6-ES-
2013-0081, which is the docket number for this rulemaking. Submit 
comments on the critical habitat proposal and its associated DEA and 
draft EA by searching for Docket No. FWS-R6-ES-2013-0082, which is the 
docket number for this rulemaking.
    (2) By hard copy: Submit comments on the proposed listing and draft 
conservation agreement by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R6-ES-2013-0081; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203. Submit comments on the 
critical habitat proposal and its associated DEA and draft EA 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 Public Comments section below for more information).
    Public informational session and public hearing: We will hold a 
public informational session and public hearing at the Uintah County 
Public Library, at 204 E 100 N in Vernal, Utah.

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; telephone 
(801-975-3330); or facsimile (801-975-3331). Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION: 

Public Comments

    We will accept written comments and information during this 
reopened comment period on (1) our proposed listing of Graham's 
beardtongue and White River beardtongue as threatened species that was 
published in the Federal Register on August 6, 2013 (78 FR 47590); (2) 
our proposed critical habitat designation for Graham's beardtongue and 
White River beardtongue that was published in the Federal Register on 
August 6, 2013 (78 FR 47832); (3) our DEA of the proposed critical 
habitat designation; (4) our draft EA of the proposed critical habitat 
designation; (5) the draft conservation agreement; (6) the amended 
required determinations provided in this document for the proposed 
critical habitat designation; and (7) new occurrence data for Graham's 
beardtongue and White River beardtongue. We will consider information 
from all interested parties. We are particularly interested in:
    (1) Specific information on:
    (a) The amount and distribution of Graham's beardtongue and White 
River beardtongue occupied and suitable habitat;
    (b) Areas that 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 currently occupied 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'' are currently found;

[[Page 25807]]

    (f) Information indicating how these species respond to natural and 
anthropogenic disturbances;
    (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; and
    (h) Whether the new occurrence data for Graham's beardtongue and 
White River beardtongue should affect the boundaries of our critical 
habitat designation.
    (2) 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.
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on the species or its proposed 
critical habitat.
    (4) Information on the projected and reasonably likely impacts of 
climate change on Graham's beardtongue and White River beardtongue 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 
critical habitat designation; in particular, we seek information on 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, as discussed in the DEA, 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.
    (9) Information on the extent to which the description of economic 
impacts in the DEA is a reasonable estimate of the likely economic 
impacts and the description of the environmental impacts in the draft 
EA is complete and accurate.
    (10) Whether the draft conservation agreement provides sufficient 
conservation measures to reduce threats to one or both species, and 
whether these measures are sufficiently certain to be implemented and 
effective.
    If you submitted comments or information on the proposed rules (78 
FR 47590 and 78 FR 47832) during the initial comment period from August 
6, 2013, to October 7, 2013, please do not resubmit them. We will 
incorporate them into the public record as part of this comment period, 
and we will fully consider them in the preparation of our final 
determinations. Our final determinations concerning listing and 
critical habitat will take into consideration all written comments and 
any additional information we receive during both comment periods. On 
the basis of public comments, we may, during the development of our 
final critical habitat determination, find that areas proposed are not 
essential, are appropriate for exclusion under section 4(b)(2) of the 
Act, or are not appropriate for exclusion. We may, during the 
development of our final listing decision, decide that either species 
should be listed as endangered; should be listed as threatened; or is 
no longer warranted for listing under the Act, in which case we would 
withdraw the proposed rules.
    You may submit your comments and materials concerning the proposed 
rules, DEA, draft EA, draft conservation agreement, or new information 
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.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. We will also post all hardcopy comments on http://www.regulations.gov. If you submit a hardcopy comment that includes 
personal identifying information, you may request at the top of your 
document that we withhold this information 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 the proposed rules, DEA, and draft 
EA will be available for public inspection at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0081 for the listing 
proposal and at Docket No. FWS-R6-ES-2013-0082 for the critical habitat 
proposal and its associated documents. All comments, materials, and 
supporting documentation are available by appointment, during normal 
business hours, at the U.S. Fish and Wildlife Service, Utah Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT). You may 
obtain copies of the proposed rules, the DEA, draft EA, and draft 
conservation agreement on the Internet at http://www.regulations.gov at 
Docket No. FWS-R6-ES-2013-0081 for the proposed listing rule, or at 
Docket No. FWS-R6-ES-2013-0082 for the proposed critical habitat rule 
and its associated documents, or by mail from the Utah Ecological 
Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Public Informational Session and Public Hearing

    We will hold a public informational session and public hearing on 
the date shown in the DATES section at the address shown in the 
ADDRESSES section. Registration to present oral comments on the 
proposed rules at the public hearing will begin at the start of the 
informational session. People needing reasonable accommodations in 
order to attend and participate in the public hearing should contact 
Larry Crist, Field Supervisor, Utah Ecological Services Field Office, 
as soon as possible (see FOR FURTHER INFORMATION CONTACT).

Background

    It is our intent to discuss only those topics directly relevant to 
the proposed designation of critical habitat (including the DEA and 
draft EA) and the development of a draft conservation agreement for 
Graham's beardtongue and White River beardtongue in this document. For 
more information on previous Federal actions concerning Graham's 
beardtongue and White River beardtongue, or for more information on 
Graham's beardtongue and White River beardtongue or their habitat, 
refer to the proposed listing rule published in the Federal Register on 
August 6, 2013 (78 FR 47590), which is available online at http://www.regulations.gov (at Docket Number FWS-R6-ES-2013-0081) or from the 
Utah Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Previous Federal Actions

    On August 6, 2013, we published a proposed rule to list Graham's 
beardtongue and White River beardtongue under the Act (78 FR 47590), 
and a proposed rule to designate critical habitat for Graham's 
beardtongue and White River beardtongue (78 FR 47832). We proposed to 
designate 67,959 acres (ac)

[[Page 25808]]

(27,502 hectares (ha)) of critical habitat for Graham's beardtongue in 
five units located in Duchesne and Uintah Counties in Utah and Rio 
Blanco County in Colorado. We also proposed to designate 14,914 acres 
(ac) (6,036 hectares (ha)) as critical habitat for White River 
beardtongue in three units located in Uintah County in Utah and Rio 
Blanco County in Colorado. That proposal had a 60-day comment period, 
ending October 7, 2013. We will publish in the Federal Register a final 
listing rule or withdrawal for Graham's beardtongue and White River 
beardtongue on or before August 6, 2014, and if appropriate, we will 
also publish a final critical habitat designation for Graham's 
beardtongue and White River beardtongue.

Critical Habitat

    Section 3 of the Act defines critical habitat as the specific areas 
within the geographical area occupied by a species, at the time it is 
listed in accordance with the Act, on which are found those physical or 
biological features essential to the conservation of the species and 
that may require special management considerations or protection, and 
specific areas outside the geographical area occupied by a species at 
the time it is listed, upon a determination that such areas are 
essential for the conservation of the species. If the proposed rule is 
made final, section 7 of the Act will prohibit destruction or adverse 
modification of critical habitat by any activity funded, authorized, or 
carried out by any Federal agency. Federal agencies proposing actions 
affecting critical habitat must consult with us on the effects of their 
proposed actions, under section 7(a)(2) of the Act.

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

    Section 4(b)(2) of the Act requires that we designate or revise 
critical habitat based upon the best scientific data available, after 
taking into consideration the economic impact, impact on national 
security, or any other relevant impact of specifying any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of excluding the area outweigh the 
benefits of including the area as critical habitat, provided such 
exclusion will not result in the extinction of the species.
    When considering the benefits of inclusion for an area, we consider 
among other factors, the additional regulatory benefits that an area 
would receive through the analysis under section 7 of the Act 
addressing the destruction or adverse modification of critical habitat 
as a result of actions with a Federal nexus (activities conducted, 
funded, permitted, or authorized by Federal agencies), the educational 
benefits of identifying areas containing essential features that aid in 
the recovery of the listed species, and any ancillary benefits 
triggered by existing local, State, or Federal laws as a result of the 
critical habitat designation.
    When considering the benefits of exclusion, we consider, among 
other things, whether exclusion of a specific area is likely to 
incentivize or result in conservation; the continuation, strengthening, 
or encouragement of partnerships; or implementation of a management 
plan. In the case of Graham's beardtongue and White River beardtongue, 
the benefits of critical habitat include public awareness of the 
presence of these species and the importance of habitat protection, 
and, where a Federal nexus exists, increased habitat protection for 
Graham's beardtongue and White River beardtongue due to protection from 
adverse modification or destruction of critical habitat. In practice, 
situations with a Federal nexus exist primarily on Federal lands or for 
projects undertaken or permitted by Federal agencies.
    We have not proposed to exclude any areas from critical habitat. 
However, the final decision on whether to exclude any areas will be 
based on the best scientific data available at the time of the final 
designation, including information obtained during the comment period 
and information about the economic impact of designation. Accordingly, 
we have prepared a draft economic analysis (DEA) concerning the 
proposed critical habitat designation, which is available for review 
and comment (see ADDRESSES).

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios ``with critical 
habitat'' and ``without critical habitat.'' The ``without critical 
habitat'' scenario represents the baseline for the analysis, which 
includes the existing regulatory and socio-economic burden imposed on 
landowners, managers, or other resource users potentially affected by 
the designation of critical habitat (e.g., under the Federal listing as 
well as other Federal, State, and local regulations). The baseline, 
therefore, represents the costs of all efforts attributable to the 
listing of the species under the Act (i.e., conservation of the species 
and its habitat incurred regardless of whether critical habitat is 
designated). The ``with critical habitat'' scenario describes the 
incremental impacts associated specifically with the designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts would not be expected without the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat, 
above and beyond the baseline costs. These are the costs we use when 
evaluating the benefits of inclusion and exclusion of particular areas 
from the final designation of critical habitat should we choose to 
conduct an optional 4(b)(2) exclusion analysis.
    For this designation, we developed an incremental effects 
memorandum (IEM, April 15, 2014) considering the probable incremental 
economic impacts that may result from the proposed designation of 
critical habitat. We used the information in our IEM to develop a 
screening analysis of the probable economic effects of the designation 
of critical habitat for Graham's beardtongue and White River 
beardtongue (Industrial Economics, Inc. May 1, 2014). We began by 
conducting a screening analysis of the proposed designation of critical 
habitat in order to focus our analysis on the key factors that are 
likely to result in incremental economic impacts. The purpose of the 
screening analysis is to filter out the geographic areas in which the 
critical habitat designation is unlikely to result in probable 
incremental economic impacts. In particular, the screening analysis 
considers baseline costs (i.e., absent critical habitat designation) 
and includes probable economic impacts where land and water use may be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the species. The

[[Page 25809]]

screening analysis filters out particular areas of critical habitat 
that are already subject to such protections and are therefore unlikely 
to incur incremental economic impacts. The screening analysis also 
assesses whether units are unoccupied by the species and may require 
additional management or conservation efforts as a result of the 
critical habitat designation and may incur incremental economic 
impacts. This screening analysis combined with the information 
contained in our IEM is what we consider our DEA of the proposed 
critical habitat designation for Graham's beardtongue and White River 
beardtongue and is summarized in the narrative below.
    Executive Orders 12866 and 13563 direct Federal agencies to assess 
the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the Executive Orders' regulatory analysis requirements, our 
effects analysis under the Act may take into consideration impacts to 
both directly and indirectly impacted entities, where practicable and 
reasonable. We assess to the extent practicable, the probable impacts, 
if sufficient data are available, to both directly and indirectly 
impacted entities. As part of our screening analysis, we considered the 
types of economic activities that are likely to occur within the areas 
affected by the critical habitat designation. In our evaluation of the 
probable incremental economic impacts that may result from our proposed 
designation of critical habitat for Graham's beardtongue and White 
River beardtongue, first we identified, in the IEM dated April 15, 
2014, probable incremental impacts associated with the following 
categories of activities: (1) Oil and gas development (includes oil 
shale, tar sands, and traditional oil and gas development); (2) 
livestock grazing; and (3) conservation activities (specifically 
nonnative weed control). We considered each industry or category 
individually. Additionally, we considered whether their activities have 
any Federal involvement. Critical habitat designation will not affect 
activities that do not have any Federal involvement; designation of 
critical habitat only affects activities conducted, funded, permitted, 
or authorized by Federal agencies. If we finalize the proposed listing 
rule, in areas where Graham's beardtongue and White River beardtongue 
are present, Federal agencies already will be required to consult with 
the Service under section 7 of the Act on activities they fund, permit, 
or implement that may affect these species. If we finalize the proposed 
critical habitat designation, consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process. Therefore, disproportionate impacts to 
any geographic area or sector would not be likely as a result of the 
critical habitat designation.
    In our IEM, we attempted to clarify the distinction between the 
effects that would result from these species being listed and those 
attributable to the critical habitat designations (i.e., difference 
between the jeopardy and adverse modification standards) for Graham's 
beardtongue and White River beardtongue. Because the designations of 
critical habitat for Graham's beardtongue and White River beardtongue 
were proposed concurrently with the listing, it has been our experience 
that it is more difficult to discern which conservation efforts are 
attributable to the species being listed and those which would result 
solely from the designation of critical habitat. However, the following 
specific circumstances in this case help to inform our evaluation: (1) 
The essential physical and biological features identified for critical 
habitat are the same features essential for the life requisites of the 
species and (2) any actions that would result in sufficient harm or 
harassment to constitute jeopardy to Graham's beardtongue and White 
River beardtongue would also likely adversely affect the essential 
physical and biological features of critical habitat. The IEM outlines 
our rationale concerning this limited distinction between baseline 
conservation efforts and incremental impacts of the designation of 
critical habitat for this species. This evaluation of the incremental 
effects has been used as the basis to evaluate the probable incremental 
economic impacts of the proposed designation of critical habitat.
    The proposed critical habitat designation for Graham's beardtongue 
includes the Sand Wash, Seep Ridge, Evacuation Creek, White River, and 
Raven Ridge units (Table 1), all five of which are occupied by the 
species.

  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. BLM Is Bureau of Land
                               Management
------------------------------------------------------------------------
      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)
                                  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
                                  State.............   ac)
                                                      4,495 ha (11,108
                                                       ac)
                                  Private...........  4,921 ha (12,164
                                                       ac)

[[Page 25810]]

 
                                   Total............  27,502 ha (67,959
                                                       ac)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    The proposed critical habitat designation for White River 
beardtongue includes the North Evacuation Creek, Weaver Ridge, and 
South Raven Ridge units (Table 2), all three of which are occupied by 
the species.

  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 (5,800
                                                       ac)
                                  State.............  836 ha (2,065 ac)
                                  Private...........  2,853 ha (7,051
                                                       ac)
                                   Total............  6,036 ha (14,914
                                                       ac)
------------------------------------------------------------------------

    All proposed critical habitat units are occupied by the species. 
For the purposes of section 7 consultations, the areas of critical 
habitat within the consultation buffer are considered occupied, while 
the areas outside of the consultation buffer but within the 
ecologically important pollinator buffer are considered unoccupied. 
Without critical habitat, the Service would not require formal 
consultation or conservation measures within the pollinator buffer. In 
the draft economic screening memorandum, the pollinator buffer was 
analyzed separately from the consultation buffer to determine the 
incremental costs of critical habitat. The incremental costs within the 
consultation buffer are expected to consist of minor administrative 
costs associated with addressing critical habitat in consultation 
documents. Within the consultation buffer, any actions that may affect 
the species or its habitat would also affect designated critical 
habitat and it is unlikely that any additional conservation efforts 
would be recommended in addition to those necessary to avoid 
jeopardizing the continued existence of Graham's beardtongue and White 
River beardtongue. While this additional analysis within the 
consultation buffer will require time and resources by both the Federal 
action agency and the Service, it is believed that, in most 
circumstances, these costs would predominantly be administrative in 
nature and would not be significant. However, for projects within the 
pollinator buffer, the incremental cost of critical habitat would 
include the full costs of the formal consultation and conservation 
efforts. Within the pollinator buffer, the recommended conservation 
efforts would be additional to what would be recommended as necessary 
to avoid jeopardizing the continued existence of Graham's beardtongue 
and White River beardtongue. A summary of recommended conservation 
efforts is provided in the screening analysis (Industrial Economics, 
Inc. May 1, 2014).
    The entities most likely to incur incremental costs are parties to 
section 7 consultations, including Federal action agencies and, in some 
cases, third parties, most frequently State agencies or municipalities. 
Activities we expect would be subject to consultations that may involve 
private entities as third parties are related to energy development, 
primarily oil shale development, that may occur on State or private 
lands. The incremental costs associated with activities occurring 
within the consultation buffer are expected to be relatively minor 
(administrative costs of less than $10,000 per consultation effort); 
however, for activities occurring within the pollinator buffer, the 
incremental costs include the section 7 consultation and additional 
conservation efforts. The total quantifiable section 7 costs for energy 
development (traditional oil and gas, oil shale, and tar sands) and 
grazing activities associated with the proposed critical habitat 
designation are estimated to be $2,900,000 (2013 dollars) in a single 
year. The incremental cost associated with grazing activities is a 
relatively minor component of the total cost ($9,000); the major 
component of the total cost is associated with energy development 
activities. In summary, the draft economic screening memorandum 
concludes that future probable economic impacts are not likely to 
exceed $100 million in any given year.
    As we stated earlier, we are soliciting data and comments from the 
public on the DEA, as well as all aspects of the proposed rules and our 
amended required determinations. We may revise the proposed rules or 
supporting documents to incorporate or address information we receive 
during the public comment period. In particular, we may exclude an area 
from critical habitat if we determine that the benefits of excluding 
the area outweigh the

[[Page 25811]]

benefits of including the area, provided the exclusion will not result 
in the extinction of the Graham's beardtongue or White River 
beardtongue.

Draft Conservation Agreement

    We have worked with key federal and non-federal landowners to 
develop a draft conservation agreement intended to provide for the 
conservation of Graham's beardtongue and White River beardtongue. This 
15-year conservation agreement was developed in early 2014 with the BLM 
Utah State Office, BLM Utah Vernal Field Office, BLM White River Field 
Office, State of Utah School and Institutional Trust Lands 
Administration (SITLA), Utah Public Lands Policy Coordination Office, 
and Uintah County, Utah. The draft agreement outlines detailed and 
specific conservation measures that will be enacted throughout the 
range of each species to address the threats that were identified in 
our August 6, 2013, proposed listing rule (78 FR 47590). The draft 
agreement is a new agreement and not an amendment to the 2007 
conservation agreement for Graham's beardtongue, as described in the 
proposed rule (August 6, 2013, 78 FR 47832).
    The draft conservation agreement provides conservation benefits to 
Graham's beardtongue by protecting 64 percent of the total population, 
and to White River beardtongue by protecting 76 percent of the total 
population. Conservation measures set forth in the agreement address 
threats to both species from energy development (traditional oil and 
gas, oil shale, and tar sands) and the cumulative effect of increased 
energy development, livestock grazing, invasive weeds, small population 
sizes, and climate change. In summary, the range of each species on 
Federal, State, and private lands is divided into conservation areas--
totaling 44,373 acres for Graham's and White River beardtongue. Within 
these conservation areas, new and permanent surface disturbance is 
limited to a 5-percent and 2.5-percent disturbance cap, respectively. 
Additionally, surface disturbance will be avoided within 300 feet of 
plants. If federal land within a conservation area is transferred to 
the State of Utah, the State will maintain the land as a designated 
conservation area. On federal lands outside of conservation areas, 
surface disturbance will be sited to avoid plants by 300 feet. To 
address livestock grazing impacts, a livestock monitoring plan will be 
developed and implemented within 1 year of the signed agreement date; 
the livestock monitoring plan will identify impacts for which 
management actions are necessary. To address invasive weeds, a weed 
management plan will be developed and implemented within 1 year of the 
signed agreement date. To address small population size, conservation 
areas limit disturbance to protect against habitat fragmentation and 
maintain population connectivity. To address climate change, weather 
monitoring equipment will be installed near long-term population 
monitoring sites to determine basic species responses to climate 
patterns. In an attempt to restore both species to reclaimed sites 
within their ranges, a restoration study will be implemented to assess 
the success of seedling recruitment, plant establishment, and 
population trend on restored sites. The development and implementation 
of all of these plans and studies will be funded and supervised by the 
conservation team identified in the draft conservation agreement.
    We intend to consider this conservation agreement once it has been 
signed in our final decisions on whether to list Graham's beardtongue 
and White River beardtongue under the Act, and invite the public to 
comment on the agreement and its impact on the conservation of these 
species, and whether the draft agreement sufficiently ameliorates the 
threats to Graham's beardtongue and White River beardtongue. We intend 
to evaluate this agreement under our Policy for Evaluation of 
Conservation Efforts When Making Listing Decisions (PECE policy) (68 FR 
15100, March 28, 2003). The draft conservation agreement is available 
at http://www.regulations.gov at Docket No. FWS-R6-ES-2013-0081 and at 
http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/.

New Survey Information

    Since the publication of the proposed rules, we have received 
additional survey information for Graham's beardtongue and White River 
beardtongue. Survey information was provided to us with location and, 
in some instances, plant abundance information. For Graham's 
beardtongue, we now know of an additional 8,631 plants, with 5,814 
falling outside of our proposed critical habitat. For White River 
beardtongue, a total of 792 additional plants were documented, of which 
276 are located outside of our proposed critical habitat. Maps of 
additional plant locations are available at http://www.regulations.gov 
at Docket No. FWS-R6-ES-2013-0081 and at http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/. We request the public review 
these data and provide comment on whether and how they should be 
considered for the designation of critical habitat, and how this 
information might impact our assessment of the species status under the 
Act.

Required Determinations--Amended

    In our August 6, 2013, proposed critical habitat rule (78 FR 
47832), we indicated that we would defer our determination of 
compliance with several statutes and executive orders until we had 
evaluated the probable effects on landowners and stakeholders and the 
resulting probable economic impacts of the designation. Following our 
evaluation of the probable incremental economic impacts resulting from 
the designation of critical habitat for Graham's beardtongue and White 
River beardtongue, we have amended or affirmed our determinations 
below. Specifically, we affirm the information in our proposed rule 
concerning Executive Orders (E.O.s) 12866 and 13563 (Regulatory 
Planning and Review), E.O. 13132 (Federalism), E.O. 12988 (Civil 
Justice Reform), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et 
seq.), and the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.). However, based on our evaluation of the probable incremental 
economic impacts of the proposed designation of critical habitat for 
Graham's beardtongue and White River beardtongue, we are amending our 
required determinations concerning the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), the National Environmental Policy Act (42 U.S.C. 
4321 et seq.), E.O. 12630 (Takings), E.O. 13211 (Energy, Supply, 
Distribution, or Use), and the President's memorandum of April 29, 
1994, ``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951). See below for more information on these 
determinations.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will

[[Page 25812]]

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 manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term ``significant economic impact'' is meant to apply 
to a typical small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself, and therefore, not required to evaluate the 
potential impacts to indirectly regulated entities. The regulatory 
mechanism through which critical habitat protections are realized is 
section 7 of the Act, which requires Federal agencies, in consultation 
with the Service, to ensure that any action authorized, funded, or 
carried out by the Agency is not likely to adversely modify critical 
habitat. Therefore, under these circumstances 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. Consequently, it is our position that only Federal action 
agencies will be directly regulated by this designation. Moreover, 
Federal agencies are not small entities. Therefore, because no small 
entities are directly regulated by this rulemaking, the Service 
certifies that, if promulgated, the proposed critical habitat 
designation will not have a significant economic impact on a 
substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if promulgated, the proposed 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

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

    When the range of a species includes States within the jurisdiction 
of the U.S. Court of Appeals for the Tenth Circuit, pursuant to that 
court's ruling in Catron County Board of Commissioners v. U.S. Fish and 
Wildlife Service, 75 F .3d 1429 (10th Cir. 1996), we will complete an 
analysis under the National Environmental Policy Act of 1969 (42 U.S.C. 
4321 et seq.) (NEPA) on critical habitat designations. The ranges of 
Graham's beardtongue and White River beardtongue are entirely within 
the States of Utah and Colorado, which are within the Tenth Circuit.
    The draft EA presents the purpose of and need for critical habitat 
designation; the proposed action and alternatives; and an evaluation of 
the direct, indirect, and cumulative effects of the alternatives under 
the requirements of NEPA as implemented by the Council on Environmental 
Quality regulations (40 CFR part 1500 et seq.) and according to the 
Department of the Interior's NEPA procedures.
    We will use the draft EA to decide whether or not critical habitat 
will be designated as proposed; if the proposed action requires 
refinement, or if another alternative is appropriate; or if further 
analyses are needed through preparation of an environmental impact 
statement. If the proposed action is selected as described (or is 
changed minimally) and no impacts will be significant, then a finding 
of no significant impact (FONSI) would be the appropriate conclusion of 
this process. We are seeking data and comments from the public on the 
draft EA, which is available at http://www.regulations.gov at Docket 
No. FWS-R6-ES-2013-0082 and at http://www.fws.gov/mountain-prairie/species/plants/2utahbeardtongues/.

E.O. 12630 (Takings)

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for Graham's beardtongue and White River beardtongue in a 
takings implications assessment. As discussed above, the designation of 
critical habitat affects only Federal actions. Although private parties 
that receive Federal funding or assistance, or that 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. The economic analysis found that 
no significant economic impacts are likely to result from the 
designation of critical habitat for Graham's beardtongue and White 
River beardtongue. Because the Act's critical habitat protection 
requirements apply only to Federal agency actions, few conflicts 
between critical habitat and private property rights should result from 
this designation. Based on information contained in the draft economic 
analysis, it is not likely that economic impacts to a property owner 
would be of a sufficient magnitude to support a takings action. 
Therefore, the takings implications assessment concludes that this 
designation of critical habitat for Graham's beardtongue and White 
River beardtongue does not pose significant takings implications for 
lands within or affected by the designation.

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 and tar sands 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. As stated in the Consideration of Economic Impacts 
section, above, we do not anticipate additional conservation efforts 
related to oil and gas beyond those requested to avoid jeopardy to the 
species within occupied beardtongue habitat, which

[[Page 25813]]

comprises the majority of the area proposed as critical habitat. 
Incremental effects of the proposed critical habitat designation are 
assumed to occur for energy projects in the pollinator buffer of 
proposed critical habitat. As of January 2014, 88 and 21 producing or 
newly permitted wells are located within proposed critical habitat for 
Graham's beardtongue and White River beardtongue, respectively. Within 
the pollinator buffer of proposed critical habitat, there are 75 and 16 
producing or newly permitted wells for Graham's beardtongue and White 
River beardtongue, respectively. The number of wells within the 
proposed designation represents less than 1 percent of wells in the 
States of Utah and Colorado. We do not anticipate that the designation 
of critical habitat would result in significant impacts to the energy 
industry on a national scale. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

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 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 are occupied by 
Graham's beardtongue or White River beardtongue and 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. However, tribal lands 
belonging to the Ute Tribe do occur adjacent to proposed critical 
habitat, and a recently developed suitable habitat model for both 
beardtongues indicates suitable habitat exists within the Reservation 
boundary. Since December of 2013, the Service has been in communication 
with the Ute Tribe regarding the proposed listing and critical habitat 
designation, and the Service will conduct government-to-government 
consultation with the Ute Tribe throughout the development of the final 
rules.

Authors

    The primary authors of this notice are the staff members of the 
Utah Ecological Services Field Office, Region 6, U.S. Fish and Wildlife 
Service.

Authority

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

    Dated: April 29, 2014.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2014-10274 Filed 5-5-14; 8:45 am]
BILLING CODE 4310-55-P