        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 20
        RIN 1018-AT87
        Migratory Bird Hunting; Approval of Iron-Tungsten-Nickel Shot as Nontoxic for Hunting Waterfowl and Coots

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule, availability of Draft Environmental Assessment.

          SUMMARY:

          The U.S. Fish and Wildlife Service (we, us, or USFWS) proposes to approve shot formulated of 62 percent iron, 25 percent tungsten, and 13 percent nickel as nontoxic for waterfowl and coot hunting in the United States. We assessed possible toxicity effects of the Iron-Tungsten-Nickel (ITN) shot, and have determined that it is not a threat to wildlife or their habitats, and that further testing of ITN shot is not necessary. We have concluded that because all of the metals in ITN shot type have been approved in higher concentrations in other nontoxic shot types and in ITN shot are very unlikely to adversely affect fish, wildlife, their habitats, or the human environment, we do not need to prepare an Environmental Assessment for this action. We believe that the toxicity risks from ITN shot are small.
          This rule also corrects the formulation of Tungsten-Tin-Bismuth shot. We inadvertently left the iron in the formulation out of our August 9, 2004, approval of the shot type (69 FR 48163).

          DATES:
          Send comments on this proposal by June 6, 2005.

          ADDRESSES:
          You may submit comments, identified by RIN 1018-AT87, by any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Agency Web Site: http://migratorybirds.fws.gov. Follow the links to submit a comment.
          • E-mail address for comments: George_T_Allen@fws.gov. Include “RIN 1018-AT87” in the subject line of the message. Please submit electronic comments as text files; do not use file compression or any special formatting.
          • Fax: 703-358-2217.
          • Mail: Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, Mail Stop MBSP-4107, Arlington, Virginia 22203-1610.
          • Hand Delivery: Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4501 North Fairfax Drive, Room 4091, Arlington, Virginia 22203-1610.
          We will not accept anonymous comments. Comments will become part of the Administrative Record for the review of the application. You may inspect comments at the mailing address above during normal business hours.
          The Draft Environmental Assessment for approval of ITN shot is available from the Division of Migratory Bird Management, U.S. Fish and Wildlife Service, 4501 North Fairfax Drive, Room 4091, Arlington, Virginia 22203-1610. You may call 703-358-1825 to request a copy of the Draft Environmental Assessment.
          The complete file for this rule is available, by appointment, during normal business hours at the same address. You may call 703-358-1825 to make an appointment to view the files.

          FOR FURTHER INFORMATION CONTACT:
          Dr. George T. Allen, Division of Migratory Bird Management, 703-358-1714.

        SUPPLEMENTARY INFORMATION:
        Background
        The Migratory Bird Treaty Act of 1918 (Act) (16 U.S.C. 703-711) and the Fish and Wildlife Improvement Act of 1978 (16 U.S.C. 712) implement migratory bird treaties between the United States and Great Britain for Canada (1916 and 1996 as amended), Mexico (1936 and 1972 as amended), Japan (1972 and 1974 as amended), and Russia (then the Soviet Union, 1978). These treaties protect certain migratory birds from take, except as permitted under the Acts. The Acts authorize the Secretary of the Interior to regulate take of migratory birds in the United States. Under this authority, the U.S. Fish and Wildlife Service controls the hunting of migratory game birds through regulations in 50 CFR part 20.
        Deposition of toxic shot and release of toxic shot components in waterfowl hunting locations are potentially harmful to many organisms. Research has shown that ingested spent lead shot causes significant mortality in migratory birds. Since the mid-1970s, we have sought to identify shot types that do not pose significant toxicity hazards to migratory birds or other wildlife. We addressed the issue of lead poisoning in waterfowl in an Environmental Impact Statement in 1976, and again in a 1986 supplemental EIS. The 1986 document provided the scientific justification for a ban on the use of lead shot and the subsequent approval of steel shot for hunting waterfowl and coots that began that year, with a complete ban of lead for waterfowl and coot hunting in 1991. We have continued to consider other potential candidates for approval as nontoxic shot. We are obligated to review applications for approval of alternative shot types as nontoxic for hunting waterfowl and coots.
        We have received an application from ENVIRON-Metal, Inc. of Sweet Home, Oregon, for approval of Iron-Tungsten-Nickel shot formulated as 62 percent iron, 25 percent tungsten, and 13 percent nickel by weight for waterfowl and coot hunting. We have reviewed the shot under the criteria in Tier 1 of the revised nontoxic shot approval procedures contained in 50 CFR 20.134 for permanent approval of shot as nontoxic for hunting waterfowl and coots. We propose to amend 50 CFR 20.21 (j) to add ITN shot to the list of the approved types of shot for waterfowl and coot hunting.

        The taxonomic family Anatidae, principally subfamily Anatinae (ducks) and their habitats, comprise the affected environment. Waterfowl habitats and populations in North America this year were described by the U.S. Fish and Wildlife Service (2004). In the Breeding Population and Habitat Survey traditional survey area (strata 1-18, 20-50, and 75-77), the total-duck population estimate was 32.2 ± 0.6 (± 1 standard error) million birds, 11% below last year's estimate of 36.2 ± 0.7 million birds and 3% below the 1955-2003 long-term average. Mallards (Anas platyrhynchos) numbered 7.4 ± 0.3 million, similar to last year's estimate of 7.9 ± 0.3 million birds and to the long-term average. Blue-winged teal (A. discors) numbered 4.1 ± 0.2 million, 26% below last year's estimate of 5.5 ± 0.3 million, and 10% below the long-term average. Among other duck species, northern shovelers (A. clypeata, 2.8 ± 0.2 million) and American wigeon (A. americana, 2.0 ± 0.1 million) were both 22% below their 2003 estimates. As in 2003, gadwall (A. strepera, 2.6 ± 0.2 million, +56%), green winged teal (A. crecca, 2.5 ± 0.1 million, +33%), and northern shovelers (+32%) were above their long-term averages. Northern pintails (A. acuta, 2.2 ± 0.2 million, −48%), scaup (Aythya affinis and A. marila, 3.8 ± 0.2 million, −27%), and American wigeon (−25%) were well below their long-term averages in 2004.
        Total May ponds in Prairie Canada and the north-central U.S. were 3.9 ± 0.2 million, or 24% lower than last year and 19% below the long-term average. The projected mallard fall flight (which is fundamental for setting waterfowl hunting regulations) was 9.4 ± 0.1 million birds, compared to the estimate of 10.3 ± 0.1 million in 2003.

        The 2004 total-duck population estimate for the eastern survey area (strata 51-56 and 62-69) was 3.9 ± 0.3 million birds. This estimate was similar to last year's estimate of 3.6 ± 0.3 million birds and to the 1996-2003 average. Individual species estimates for this area were similar to 2003 estimates and to 1996-2003 averages, with the exception of American wigeon (0.1 ± 0.1 million) and goldeneyes (Bucephala clangula and B. islandica, 0.4 ± 0.1 million), which were 61% and 42% below their 1996-2003 averages, respectively, and ring-necked ducks (Aythya collaris, 0.7 ± 0.2 million), for which the estimate was up 67% from 2003.
        Other Biota
        Waterfowl hunting occurs in habitats used by many taxa of migratory birds, as well as by aquatic invertebrates, amphibians, and some mammals. Fish also may be found in many hunting locations.
        Shot Formulation and Production

        Iron-Tungsten-Nickel shot is an alloy of 62% iron, 25% tungsten, and 13% nickel. Its density is about 9 grams/cm3. The shot has no coating, nor is it chemically or physically altered when fired from a shotgun. Neither manufacturing the shot nor firing shotshells containing the shot will alter the metals or increase their susceptibility to dissolving in the environment.
        ENVIRON-Metal estimates that the volume of ITN shot for use in hunting migratory birds in the United States will be approximately 200,000 pounds (90,719 kilograms) during the first year of sale, and perhaps 500,000 pounds (227,000 kg) per year thereafter.
        Environmental Fate of the Metals in ITN Shot
        Elemental tungsten and iron are virtually insoluble in water, and therefore do not weather and degrade in the environment. Tungsten is stable in acids and does not easily form compounds with other substances. Preferential uptake by plants in acidic soil suggests uptake of tungsten when it has formed compounds with other substances rather than when it is in its elemental form (Kabata-Pendias and Pendias 1984).
        Nickel is usually found at less than 1 part per billion (ppb) in fresh waters in locations unaffected by human activities. Pure nickel is not soluble in water. Free nickel may be part of chemical reactions, such as sorption, precipitation, and complexation. Reactions of nickel with anions are unlikely. Complexation with organic agents is poorly understood (USEPA 1980). Water hardness is the dominant factor governing nickel effects on biota (Stokes 1988).
        Possible Environmental Concentrations
        Calculation of the estimated environmental concentration (EEC) of a candidate shot in a terrestrial ecosystem is based on 69,000 shot per hectare (50 CFR 20.134). For ITN shot, if the shot are completely dissolved in dry, porous soil, the EEC for iron is 14.55 g/m3, or 11.19 parts per million (ppm). Iron is naturally widespread, comprising approximately 2% of the composition of soils and sediments in the U.S. The EEC for iron from ITN shot is much lower than that level.
        Tungsten is rare (1.5 ppm in the earth's crust), and is never found free in nature. The EEC for tungsten in soil is 5.92 g/m3, or 4.55 ppm. This is below the EEC for several other tungsten-based shot types that we have previously approved. We are not aware of any problems associated with those shot types. The U.S. Environmental Protection Agency (USEPA) does not have a biosolids application limit for tungsten.
        The EEC for nickel in ITN shot in soils is 3.08 g/m3, or 4.55 ppm. This concentration is far below the USEPA biosolids application limit of 420 ppm (USEPA 2000).
        The EEC for water assumes that 69,000 #4 shot are completely dissolved in 1 hectare of water 1 foot (30.48 cm) deep. For ITN shot, the EEC for iron in water is 2.39 milligrams per liter (mg/l). The USEPA chronic water quality criterion for iron in fresh water is 1 mg/l.
        The EEC for tungsten from ITN shot is 0.97 mg/l. The USEPA has set no acute or chronic criteria for tungsten in aquatic systems.
        The aquatic EEC for nickel from ITN shot is 505 mcg/l. The USEPA (1980) acute criterion for nickel in fresh water is 1400 mcg/l; the chronic criterion is 160 mcg/l. The acute and chronic criteria for salt water are 75 and 8.3 mcg/l, respectively.
        Effects of Iron-Tungsten-Nickel Shot

        Iron is an essential nutrient, so reported iron toxicosis in mammals is primarily a phenomenon of overdosing of livestock. Maximum recommended dietary levels of iron range from 500 ppm for sheep to 3,000 ppm for pigs (National Research Council [NRC] 1980). Chickens require at least 55 ppm iron in the diet (Morck and Austic 1981). Chickens fed 1,600 ppm iron in an adequate diet displayed no ill effects (McGhee et al. 1965). Turkey poults fed 440 ppm in the diet suffered no adverse effects. The tests in which eight #4 tungsten-iron shot were administered to each mallard in a toxicity study indicated that the 45% iron content of the shot had no adverse effects on the test animals (Kelly et al. 1998).

        Tungsten may be substituted for molybdenum in enzymes in mammals. Ingested tungsten salts reduce growth, and can cause diarrhea, coma, and death in mammals (e.g. Bursian et al. 1996, Cohen et al. 1973, Karantassis 1924, Kinard and Van de Erve 1941, National Research Council 1980, Pham-Huu-Chanh 1965), but elemental tungsten is virtually insoluble and therefore essentially nontoxic. Tungsten powder added to the food of young rats at 2, 5, and 10% by mass for 70 days did not affect health or growth (Sax and Lewis 1989). A dietary concentration of 94 parts ppm did not reduce weight gain in growing rats (Wei et al. 1987). Exposure to pure tungsten through oral, inhalation, or dermal pathways is not reported to cause any health effects (Sittig 1991).

        Tungsten salts are toxic to mammals. Lifetime exposure to 5 ppm tungsten as sodium tungstate in drinking water produced no discernible adverse effects in rats (Schroeder and Mitchener 1975). At 100 ppm tungsten as sodium tungstate in drinking water, rats had decreased enzyme activity after 21 days (Cohen et al. 1973).
        Kraabel et al. (1996) surgically embedded tungsten-bismuth-tin shot in the pectoralis muscles of ducks to simulate wounding by gunfire and to test for toxic effects of the shot. They found that the shot neither produced toxic effects nor induced adverse systemic effects in the ducks during the 8-week period of their study.

        Chickens given a complete diet showed no adverse effects of 250 ppm sodium tungstate administered for 10 days in the diet. However, 500 ppm in the diet reduced xanthine oxidase activity and reduced growth of day-old chicks (Teekell and Watts 1959). Adult hens had reduced egg production and egg weight on a diet containing 1,000 ppm tungsten (Nell et al. 1981). Ecological Planning and Toxicology (1999) concluded that the No Observed Adverse Effect Level for tungsten for chickens should be 250 ppm in the diet; the Lowest Observed Adverse Effect Level should be 500 ppm. Kelly et al. (1998) demonstrated no adverse effects on mallards dosed with tungsten-iron or tungsten-polymer shot according to nontoxic shot test protocols.
        Ringelman et al. (1993) conducted a 32-day acute toxicity study which involved dosing game-farm mallards with a shot alloy of 39% tungsten, 44.5% bismuth, and 16.5% tin (TBT shot) by weight, respectively. All the test birds survived, showed normal behavior, and suffered no tissue toxicity or damage. Kraabel et al. (1996) determined that imbedded tungsten-bismuth-tin shot neither produced toxic effects nor induced any adverse systemic effects on the health of ducks.
        Nickel is a dietary requirement of mammals, with necessary consumption set at 50 to 80 ppb for the rat and chick (Nielsen and Sandstead 1974). Though it is necessary for some enzymes, nickel can compete with calcium, magnesium, and zinc for binding sites on many enzymes.

        Water-soluble nickel salts are poorly absorbed if ingested by rats (Nieboer et al. 1988). Nickel carbonate caused no treatment effects in rats fed 1,000 ppm for 3 to 4 months (Phatak and Patwardhan 1952). Rats fed 1,000 ppm nickel sulfate for 2 years showed reduced body and liver weights, an increase in the number of stillborn pups, and decrease in weanling weights through three generations (Ambrose et al. 1976). Nickel chloride was even more toxic; 1,000 ppm fed to young rats caused weight loss in 13 days (Schnegg and Kirchgessner 1976).

        Soluble nickel salts are very toxic to mammals, with an oral LD50 of 136 mg/kg in mice, and 350 mg/kg in rats (Fairchild et al. 1977). Nickel catalyst (finely divided nickel in vegetable oil) fed to young rats at 250 ppm for 16 months, however, produced no detrimental effects (Phatak and Patwardhan 1952).
        In chicks from hatching to 4 weeks of age, 300 ppm nickel as nickel carbonate or nickel acetate in the diet produced no observed adverse effects, but concentrations of 500 ppm or more reduced growth (Weber and Reid 1968). A diet containing 200 ppm nickel as nickel sulfate had no observed effects on mallard ducklings from 1 to 90 days of age. Diets of 800 ppm or more caused significant changes in physical condition of the ducklings (Cain and Pafford 1981). Eastin and O'Shea (1981) observed no apparent significant changes in pairs of breeding mallards fed diets containing up to 800 ppm nickel as nickel sulfate for 90 days. Mallard ducklings fed 1,200 ppm nickel as nickel sulfate from one to 90 days of age experienced reduced growth rates, tremors, paresis, and death (71% within 60 days) (Cain and Pafford 1981). Weights of ducklings receiving 200 and 800 ppm nickel were not significantly different than controls, but the humerus weight/length ratio, a measure of bone density, was significantly lower than controls among females in the 800 ppm group and all birds in the 1,200 ppm group. There was no mortality in the 200 and 800 ppm groups. Assuming a mean daily consumption of 128 g per bird (Heinz 1979), the 800 ppm treatment group would have consumed 102 mg nickel each day and 9.2 g nickel during the course of the 90-day study. In a Tier 2 dosing study under the regulations governing approval of nontoxic shot, mallard ducks birds would each be given eight number 4 ITN shot (each containing 0.02206 g of nickel) during the study. A duck would be exposed to 0.176 g of nickel during the study if the nickel were completely dissolved. This is much less than the nickel exposure experienced by the mallards in the Eastin and O'Shea (1981) study.
        Toxicity of nickel to aquatic organisms is dependent upon water hardness, pH, and organic content, as well as other minor environmental parameters (Allen and Hansen 1996). In soft water, as few as 7 ppb may be acutely toxic to fish fry, but in harder waters toxicity thresholds may be an order of magnitude higher (Stokes 1988). General toxicity ranges for aquatic organisms are as variable, with an acute toxicity of as low as 82 mcg/l for some oligochaetes to 138,000 mcg/l for some gastropods; chronic toxicity values range from fewer than 100 mcg/l for some green algae to 10,000 mcg/l for filamentous algae (Stokes 1988).
        The freshwater criterion maximum concentration is dependent on hardness. For a water body with hardness of 50 mg/l (generally associated with highly oligotrophic systems that would not support large numbers of waterfowl), this results in a criterion of 1,400 mcg/l. However, because early fish life stages are more sensitive to nickel, the freshwater chronic criterion is 160 mcg/l at a hardness of 50 mg/l (USEPA 1986).
        The aquatic EEC for nickel from ITN shot is 505 mcg/l. The USEPA (1980) acute criterion for nickel in fresh water is 1400 mcg/l; the chronic criterion is 160 mcg/l. The acute and chronic criteria for salt water are 75 and 8.3 mcg/l, respectively. Based on the EEC, the maximum release of nickel from ITN shot would be well below the fresh water acute criterion for protection of aquatic life. The EEC exceeds the chronic criterion for fresh water and both acute and chronic values for seawater. However, ENVIRON-Metal reported that corrosion studies recently performed by an independent laboratory show that the corrosion rate for ITN shot is essentially equivalent to that of common steel, which is roughly linear with exposure time. Assuming that the rate of loss in the corrosion study continued, ITN shot would release about 11% of the calculated EEC per year; or about 4% of the acute water quality criterion and 35% of the chronic criterion for nickel in fresh water. After accounting for the dissolution of the shot, the EEC would be below the chronic criterion for salt water, but still about 7 times the acute criterion. However, the 11% dissolution would occur over a full year. Deposition of ITN shot in salt water environments would occur only during the hunting season, so worst-case nickel concentrations would be well below the chronic criterion. In addition, in most settings, shot deposition is far below that upon which the EEC is based.
        Based on the information provided about ITN shot provided to us, we have little concern for the organisms from ingestion of ITN shot or from dissolution of the shot in aquatic settings.
        We have previously approved as nontoxic other shot types that contain tungsten, iron, and nickel. Previous assessments of tungsten-containing alloys indicated that neither the tungsten nor the iron in ITN shot should be of concern in terrestrial or aquatic systems. The release of iron from the shot would be insignificant in natural settings. Reviews of past studies for approvals of other tungsten-alloy nontoxic shot types also support the idea that ingestion of ITN shot will not cause harm to birds or mammals.
        Impacts of Approval of ITN Shot as Nontoxic
        The status quo would be maintained by not authorizing use of ITN shot for hunting waterfowl and coots. By regulation, 10 other nontoxic shot types are authorized for use by waterfowl and coot hunters. Because these shot types are nontoxic to migratory birds, using only those shot types would have no adverse impact on waterfowl and their habitats.
        Based on past test results of shot types containing the metals in ITN shot, we believe it too is nontoxic to waterfowl, other biota, and their habitats. Furnishing another approved nontoxic shot will likely result in a minor positive long-term impact on waterfowl and wetland habitats. Approval of ITN shot as nontoxic would have a positive impact on the waterfowl resource.
        The impact on endangered and threatened species of approval of the shot will be small but positive. We obtain a biological opinion pursuant to Section 7 of the Endangered Species Act prior to establishing the seasonal hunting regulations. The hunting regulations promulgated as a result of this consultation remove and alleviate chances of conflict between migratory bird hunting and endangered and threatened species.
        Our consultations do not address take resulting from noncompliance. Indeed, a factor considered when we developed the regulations banning the use of lead for migratory waterfowl hunting was the impact of lead on endangered and threatened species. Hunter failures to comply with the ban on lead for waterfowl and coot hunting are of concern to us. We believe noncompliance is of some concern, but failure to approve ITN shot as nontoxic would have only a small negative impact on the resource.
        The impact of approval of ITN shot on endangered and threatened species is similar to that described for waterfowl. In the short- and long-term, approval would provide a positive impact on endangered and threatened species because all indications are that ITN shot is nontoxic. Also, as an alternative shot, it will further discourage the use of lead during waterfowl hunting and perhaps extend to upland game.

        Approval of ITN shot as nontoxic would have a short-term positive impact on ecosystems. Some hunters still shooting lead shot might switch to ITN shot. Approval of an additional nontoxic shot type will result in positive long-term impact on ecosystems.
        Cumulative Impacts
        We foresee no negative cumulative impacts of approval of ITN shot for waterfowl hunting. Approval of an additional nontoxic shot type should help to further reduce the negative impacts of the use of lead shot for hunting waterfowl and coots. We believe the impacts of approval of ITN shot for waterfowl hunting should be positive both in the United States and elsewhere.
        Nontoxic Shot Approval
        The first condition for nontoxic shot approval is toxicity testing. Based on the results of the toxicological reports and the toxicity tests, we preliminarily conclude that ITN shot does not pose a significant danger to migratory birds, other wildlife, or their habitats.
        The second condition for approval is testing for residual lead levels. Any shot with a lead level of 1% or more will be illegal. We determined that the maximum environmentally-acceptable level of lead in shot is 1%, and incorporated this requirement in the nontoxic shot approval process we published in December 1997 (62 FR 63608). International Nontoxic Composites, Inc. has documented that ITN shot meets this requirement.
        The third condition for approval involves enforcement. In 1995 (60 FR 43314), we stated that approval of any nontoxic shot would be contingent upon the development and availability of a noninvasive field testing device. This requirement was incorporated in the nontoxic shot approval process. ITN shotshells can be drawn to a magnet as a simple field detection method.
        For these reasons, and in accordance with 50 CFR 20.134, we propose to approve Iron-Tungsten-Nickel shot as nontoxic for migratory bird hunting, and propose to amend 50 CFR 20.21(j) accordingly. This decision is based on data about the components of this shot, assessment of concentrations in aquatic settings, and assessment of the environmental effects of the shot. Those results indicate no likely deleterious effects of ITN shot to ecosystems or when ingested by waterfowl. Earlier testing of shot types containing tungsten and/or tin and/or iron indicated no environmental problems due to those metals in nontoxic shot. We do not believe the nickel in ITN shot will pose a significant environmental hazard, and we propose to approve ITN shot with no further testing.

          References
          Allen, H. E. and D. J. Hansen. 1996. The importance of trace metal speciation to water quality criteria. Water Environment Research. 68:42-54.
          Ambrose, P., P. S. Larson, J. F. Borzelleca, and G. R. Hennigar, Jr. 1976. Long term toxicologic assessment of nickel in rats and dogs. Journal of Food Science and Technology 13:181-187.
          Bursian, S. J., M. E. Kelly, R. J. Aulerich, D.C. Powell, and S. Fitzgerald. 1996. Thirty-day dosing test to assess the toxicity of tungsten-polymer shot in game-farm mallards. Report to Federal Cartridge Company.
          Cain, B. W. and E. A. Pafford. 1981. Effects of dietary nickel on survival and growth of mallard ducklings. Archives of Environmental Contamination and Toxicology 10:737-745.

          Cohen, H. J., R. T. Drew, J. L. Johnson, and K. V. Rajagopalan. 1973. Molecular basis of the biological function of molybdenum: the relationship between sulfite oxidase and the acute toxicity of bisulfate and SO2. Proceedings of the National Academy of Sciences 70:3655-3659.
          Eastin, W. C., Jr. and T. J. O'Shea. 1981. Effects of dietary nickel on mallards. Journal of Toxicology and Environmental Health 7:883-892.

          Ecological Planning and Toxicology, Inc. 1999. Application for approval of Hevi-metalTM nontoxic shot: Tier 1 report. Cherry Hill, New Jersey.
          Fairchild, E. J., R. J. Lewis, and R. L. Tatken (editors). 1977. Registry of toxic effects of chemical substances, Volume II. Pages 590-592. U.S. Department of Health, Education, and Welfare Publication (NIOSH) 78-104B. 227 pages.
          Heinz, G.H. 1979. Methylmercury: Reproductive and behavioral effects on three generations of mallard ducks. Journal of Wildlife Management 43:394-401.
          Kabata-Pendias, A. and H. Pendias. 1984. Trace elements in soils and plants. CRC Press, Inc. Boca Raton, FL.
          Karantassis, T. 1924. On the toxicity of compounds of tungsten and molybdenum. Annals of Medicine 28:1541-1543.
          Kelly, M. E., S. D. Fitzgerald, R. J. Aulerich, R. J. Balander, D. C. Powell, R. L. Stickle. W. Stevens, C. Cray, R. J. Tempelman, and S. J. Bursian. 1998. Acute effects of lead, steel, tungsten-iron and tungsten-polymer shot administered to game-farm mallards. Journal of Wildlife Diseases 34:673-687.
          Kinard, F. W. and J. Van de Erve. 1941. The toxicity of orally-ingested tungsten compounds in the rat. Journal of Pharmacology and Experimental Therapeutics 72:196-201.
          Kraabel, F. W., M. W. Miller, D. M. Getzy, and J. K. Ringleman. 1996. Effects of embedded tungsten-bismuth-tin shot and steel shot on mallards. Journal of Wildlife Diseases 38:1-8.
          McGhee, F., C. R. Greger, and J. R. Couch. 1965. Copper and iron toxicity. Poultry Science 44:310-312.
          Morck, T. A. and R. E. Austic. 1981. Iron requirements of white leghorn hens. Poultry Science 60:1497-1503.
          National Research Council. 1980. Mineral tolerance of domestic animals. National Research Council, National Academy of Sciences, Washington, DC.
          Nell, J. A., W. L. Bryden, G. S. Heard, and D. Balnave. 1981. Reproductive performance of laying hens fed tungsten. Poultry Science 60:257-258.

          Nieboer, E., R. T. Tom, and W. E. Sanford. 1988. Nickel metabolism in man and animals. Pages 91-122 in Metal ions in biological systems, volume 23: nickel and its role in biology. H. Sigel and A. Sigel, editors. Marcel Dekker, New York.
          Nielsen, F. H. and H. H. Sandstead. 1974. Are nickel, vanadium, silicon, fluoride, and tin essential for man? American Journal of Clinical Nutrition 27:515-520.
          Pham-Huu-Chanh. 1965. The comparative toxicity of sodium chromate, molybdate, tungstate, and metavanadate. Archives Internationales de Pharmacodynamie et de Therapie 154:243-249.
          Phatak, S. S. and V. N. Patwardhan. 1952. Toxicity of nickel. Journal of Science and Industrial Research 9B:70-76.
          Ringelman, J. K., M. W. Miller, and W. F. Andelt. 1993. Effects of ingested tungsten-bismuth-tin shot on captive mallards. Journal of Wildlife Management 57:725-732.
          Sax, N. I., and R. J. Lewis. 1989. Dangerous Properties of Industrial Materials. Seventh Edition, Volume II. Van Nostrand Reinhold, New York.
          Schnegg, S. and M. Kirchgessner. 1976. [Toxicity of dietary nickel]. Landwirtsch. Forsch. 29:177. Cited in Chemical Abstracts 86:101655y (1977).
          Schroeder, H. A. and M. Mitchener. 1975. Life-term studies in rats: effects of aluminum, barium, beryllium, and tungsten. Journal of Nutrition 105:421-427.
          Sittig, M. 1991. Handbook of toxic and hazardous chemicals and carcinogens. Volume II. Third edition. Noyes Publications, Park Ridge, New Jersey.

          Stokes, P. 1988. Nickel in aquatic systems. Pages 31-46 in Metal ions in biological systems, volume 23: nickel and its role in biology. H. Sigel and A. Sigel, editors. Marcel Dekker, New York.
          Teekel, R. A. and A. B. Watts. 1959. Tungsten supplementation of breeder hens. Poultry Science 38:791-794.
          U.S. Environmental Protection Agency. 1980. Ambient water quality criteria for nickel. U.S. Environmental Protection Agency, Washington, DC.
          U.S. Environmental Protection Agency. 1986. Ambient water quality criteria—nickel. USEPA Office of Water, Criteria and Standards Division, Washington, DC. EPA 440/5-86-004.

          U.S. Environmental Protection Agency. 2000. Biosolids technology fact sheet: land application of biosolids. U.S. Environmental Protection Agency, Office of Water. Washington, DC. EPA 832-F-00-064.

          U.S. Fish and Wildlife Service. 2004. Waterfowl population status, 2004. U.S. Fish and Wildlife Service, Washington, DC.
          Weber, C. W. and B. L. Reid. 1968. Nickel toxicity in growing chicks. Journal of Nutrition 95:612-616.
          Wei, H. J., X-M. Luo, and X-P. Yand. 1987. Effects of molybdenum and tungsten on mammary carcinogenesis in Sprague-Dawley (SD) rats. Chung Hua Chung Liu Tsa Chih 9:204-7. English abstract.

        Public Comments Solicited
        Our past experience with nontoxic shot approvals has been that 30 days is sufficient time for those interested in these actions to comment. Tungsten, iron, and nickel have been reviewed for use in nontoxic shot. Therefore, we will accept comments on this proposal for a 30-day period. A longer public comment period could unnecessarily delay approval of this shot for subsequent production and use.
        NEPA Consideration
        In compliance with the requirements of section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(C)), and the Council on Environmental Quality's regulation for implementing NEPA (40 CFR 1500-1508), though all of the metals in this shot type have been approved in higher concentrations in other shot types and are not likely to pose adverse toxicity effects on fish, wildlife, their habitats, or the human environment, we have prepared a Draft Environmental Assessment for this action. We will finalize the Environmental Assessment before we publish a final rule on this action.
        Endangered Species Act Considerations

        Section 7 of the Endangered Species Act (ESA) of 1972, as amended (16 U.S.C. 1531 et seq.), provides that Federal agencies shall “insure that any action authorized, funded or carried 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 (critical) habitat.” We have concluded that because all of the metals in this shot type have been approved in higher concentrations in other shot types and should not be available to biota due to use of ITN shot, this action will not affect endangered or threatened species. A Section 7 consultation under the ESA for this rule is not needed.
        Cumulative Impacts
        We foresee no negative cumulative impacts from approval of this additional nontoxic shot type. Approval of an additional shot type with metals already approved as nontoxic will not additionally impact the human environment.
        Regulatory Flexibility Act
        The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires the preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which includes small businesses, organizations, or governmental jurisdictions. This rule proposes to approve an additional type of nontoxic shot that may be sold and used to hunt migratory birds; this rule would provide one shot type in addition to the types that are approved. We have determined, however, that this rule will have no effect on small entities since the approved shot merely will supplement nontoxic shot already in commerce and available throughout the retail and wholesale distribution systems. We anticipate no dislocation or other local effects, with regard to hunters and others.
        Executive Order 12866
        This rule is not a significant regulatory action subject to Office of Management and Budget (OMB) review under Executive Order 12866. This rule will not have an annual economic effect of $100 million or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. Therefore, a cost-benefit economic analysis is not required. This action will not create inconsistencies with other agencies' actions or otherwise interfere with an action taken or planned by another agency. No other Federal agency has any role in regulating nontoxic shot for migratory bird hunting. The action is consistent with the policies and guidelines of other Department of the Interior bureaus. This action will not materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients because it has no mechanism to do so. This action will not raise novel legal or policy issues because the Service has already approved several other nontoxic shot types.

        OMB makes the final determination under E.O. 12866. We invite comments on how to make this rule easier to understand, including answers to questions such as the following: (1) Are the requirements in the rule clearly stated? (2) Does the rule contain technical language or jargon that interferes with its clarity? (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading; for example, “§ 20.134 Approval of nontoxic shot types.”) (5) Is the description of the rule in the SUPPLEMENTARY INFORMATION section of the preamble helpful in understanding the rule? What else could we do to make the rule easier to understand?
        Paperwork Reduction Act
        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. We have examined this regulation under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501) and found it to contain no information collection requirements. OMB has approved collection of information for the nontoxic shot approval process, and has assigned control number 1018-0067, which expires on December 31, 2006, to collection of information shot manufacturers are required to provide to us for the nontoxic shot approval process. For further information see 50 CFR 20.134.
        Unfunded Mandates Reform

        We have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities.
        Civil Justice Reform—Executive Order 12988
        We, in promulgating this rule, have determined that these regulations meet the applicable standards provided in Sections 3(a) and 3(b)(2) of Executive Order 12988.
        Takings Implication Assessment
        In accordance with Executive Order 12630, this rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property.
        Federalism Effects

        Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. This rule does not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with Executive Order 13132, this regulation does not have significant federalism effects and does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
        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) and 512 DM 2, we have determined that this rule has no effects on Federally recognized Indian tribes.

          List of Subjects in 50 CFR Part 20
          Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.

        For the reasons discussed in the preamble, we propose to amend part 20, subchapter B, chapter I of title 50 of the Code of Federal Regulations as follows:

          PART 20—[AMENDED]
          1. The authority citation for part 20 continues to read as follows:

            Authority:
            16 U.S.C. 703-712; 16 U.S.C. 742a-j; Pub. L. 106-108.

          2. Section 20.21 is amended by revising paragraph (j)(1) to read as follows:

            § 20.21
            What hunting methods are illegal?

            (j)(1) While possessing loose shot for muzzle loading or shotshells containing other than the following approved shot types.

                Approved shot type
                Percent composition by weight

                bismuth-tin
                97 bismuth, 3 tin.

                iron (steel)
                iron and carbon.

                iron-tungsten (2 types)
                60 iron, 40 tungsten and 78 iron, 22 tungsten.

                iron-tungsten-nickel
                62 iron, 25 tungsten, 13 nickel.

                tungsten-bronze
                51.1 tungsten, 44.4 copper, 3.9 tin, 0.6 iron.

                tungsten-matrix
                95.9 tungsten, 4.1 polymer.

                tungsten-nickel-iron
                50 tungsten, 35 nickel, 15 iron.

                tungsten-polymer
                95.5 tungsten, 4.5 Nylon 6 or 11.

                tungsten-tin-bismuth
                49-71 tungsten, 29-51 tin; 0.5-6.5 bismuth, 0.8 iron.

                tungsten-tin-iron-nickel
                65 tungsten, 21.8 tin, 10.4 iron, 2.8 nickel.

            Dated: February 1, 2005.
            Craig Manson,
            Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 05-9022 Filed 5-5-05; 8:45 am]
      BILLING CODE 4310-55-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R04-OAR-2009-0303(b); FRL-8936-1]
        Approval and Promulgation of Implementation Plans; South Carolina; Transportation Conformity Memorandum of Agreement Update

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          EPA is proposing to approve a revision to the South Carolina State Implementation Plan (SIP) submitted on November 28, 2008, through the South Carolina Department of Health and Environmental Control. This revision consists of transportation conformity criteria and procedures related to interagency consultation and enforceability of certain transportation-related control measures and mitigation measures. The intended effect is to update the transportation conformity criteria and procedures in the South Carolina SIP.
          In the Final Rules Section of this Federal Register, EPA is approving the State's SIP revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period on this document. Any parties interested in commenting on this document should do so at this time.

          DATES:
          Written comments must be received on or before August 27, 2009.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R04-OAR-2009-0303, by one of the following methods:
          a. http://www.regulations.gov: Follow the on-line instructions for submitting comments.
          b. E-mail: Wood.amanetta@epa.gov.

          c. Fax: (404) 562-9019.
          d. Mail: EPA-R04-OAR-2009-0303, Air Quality Modeling and Transportation Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.
          e. Hand Delivery or Courier: Amanetta Wood, Air Quality Modeling and Transportation Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

          Please see the direct final rule which is located in the Rules section of this Federal Register for detailed instructions on how to submit comments.

          FOR FURTHER INFORMATION CONTACT:

          Amanetta Wood of the Air Quality Modeling and Transportation Section at the Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Ms. Wood's telephone number is 404-562-9025. She can also be reached via electronic mail at Wood.amanetta@epa.gov.

        SUPPLEMENTARY INFORMATION:

        For additional information see the direct final rule which is published in the Rules Section of this Federal Register.

          Dated: July 8, 2009.
          Beverly H. Banister,
          Acting Regional Administrator, Region 4.

      [FR Doc. E9-17817 Filed 7-27-09; 8:45 am]
      BILLING CODE 6560-50-P


        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.

          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;

        (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) (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 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
            BLMState

            18,084 ha (44,686 ac)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.

        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 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 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 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


        DEPARTMENT OF TRANSPORTATION
        Federal Motor Carrier Safety Administration
        49 CFR Parts 385, 386, 390, and 395
        [Docket No. FMCSA-2004-19608]
        RIN 2126-AB26
        Hours of Service of Drivers

          AGENCY:
          Federal Motor Carrier Safety Administration (FMCSA), DOT.

          ACTION:
          Notice; availability of supplemental documents; reopening of comment period; correction.

          SUMMARY:

          This document corrects the docket number referenced in the Addresses and Instructions paragraphs to a proposed rule's notice of availability of supplemental documents published in the Federal Register of May 9, 2011, regarding Hours of Service of Drivers. This correction replaces an incorrect docket number with the correct docket number for the public to submit comments to the reopened docket about the four additional documents and FMCSA's possible consideration of the studies' findings in the development of the final rule.

          FOR FURTHER INFORMATION CONTACT:
          Mr. Thomas Yager, Chief, Driver and Carrier Operations Division, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590, (202) 366-4325.
          Correction

          In the notice, FR Doc. 2011-11150, beginning on page 26681 in the issue of May 9, 2011, make the following corrections, in both the ADDRESSES and Instructions paragraphs. On page 26681 in the 3rd column in both places it appears, replace docket number “FMCSA-2011-0039” with docket number “FMCSA-2004-19608.”

            Issued on: May 11, 2011.
            Larry W. Minor,
            Associate Administrator for Policy.

      [FR Doc. 2011-11933 Filed 5-13-11; 8:45 am]
      BILLING CODE 4910-EX-P