Federal Register / Vol. 78, No. 156 / Tuesday, August 13, 2013 / Rules and Regulations 49165

* * * * * www.fws.gov/southwest/es/arizona/. Information Relay Service (FIRS) at Dated: July 29, 2013. Comments and materials received, as 800–877–8339. Stephen Guertin, well as supporting documentation used SUPPLEMENTARY INFORMATION: in preparing this final rule are available Acting Director, U.S. Fish and Wildlife Executive Summary Service. for public inspection at http:// www.regulations.gov. All of the [FR Doc. 2013–19386 Filed 8–12–13; 8:45 am] In this final rule, we refer to comments, materials, and BILLING CODE 4310–55–P Sphaeralcea gierischii as Gierisch documentation that we considered in mallow. this rulemaking are available by Why we need to publish a rule. This DEPARTMENT OF THE INTERIOR appointment, during normal business is a final rule to designate critical hours, at U.S. Fish and Wildlife Service, habitat for the Gierisch mallow. Under Fish and Wildlife Service Arizona Ecological Services Office, 2321 the Endangered Species Act of 1973, as West Royal Palm Road, Suite 103, amended (16 U.S.C. 1531 et seq.) (Act), 50 CFR Part 17 Phoenix, AZ, 85021; by telephone (602) any species that is determined to be an [Docket No. FWS–R2–ES–2013–0018; 242–0210; or by facsimile (602) 242– endangered or threatened species 4500030113] 2513. requires critical habitat to be designated, to the maximum extent prudent and RIN 1018–AZ46 The coordinates, or plot points, or both from which the critical habitat determinable. Designations and revisions of critical habitat can only be Endangered and Threatened Wildlife maps are generated are included in the completed by issuing a rule. and Plants; Designation of Critical administrative record for this Elsewhere in today’s Federal Register, Habitat for Sphaeralcea gierischii rulemaking and are available at http:// we list the Gierisch mallow as an (Gierisch Mallow) www.fws.gov/southwest/es/arizona/, and at http://www.regulations.gov at endangered species. On August 17, AGENCY: Fish and Wildlife Service, Docket No. FWS–R2–ES–2013–0018, 2012, we published in the Federal Interior. and at the Arizona Ecological Services Register a proposed critical habitat ACTION: Final rule. Office (see FOR FURTHER INFORMATION designation for Gierisch mallow (77 FR CONTACT). Any additional tools or 49894). Section 4(b)(2) of the Act states SUMMARY: We, the U.S. Fish and supporting information that we may that the Secretary shall designate critical Wildlife Service, designate critical develop for this rulemaking will also be habitat on the basis of the best scientific habitat for Sphaeralcea gierischii available at the Fish and Wildlife data available after taking into (Gierisch mallow) under the Endangered Service Web site and Field Office set out consideration the economic impact, the Species Act of 1973, as amended (Act). above, and may also be included in the impact on national security, and any The effect of this regulation is to preamble and/or at http:// other relevant impact of specifying any designate critical habitat for Gierisch www.regulations.gov. particular area as critical habitat. mallow under the Act. This final rule The critical habitat areas we are implements the Federal protections FOR FURTHER INFORMATION CONTACT: designating in this rule constitute our provided by the Act for this species. Steve Spangle, Field Supervisor, U.S. current best assessment of the areas that DATES: This rule is effective on Fish and Wildlife Service, Arizona meet the definition of critical habitat for September 12, 2013. Ecological Services Office, 2321 West Gierisch mallow. We are designating ADDRESSES: This final rule, final Royal Palm Road, Suite 103, Phoenix, approximately 5,189 hectares (ha) economic analysis, and final AZ 85021; by telephone (602) 242–0210; (12,822 acres (ac)) as critical habitat in environmental assessment are available or by facsimile (602) 242–2513. Persons two units in both Mohave County, on the Internet at http:// who use a telecommunications device Arizona, and Washington County, Utah, www.regulations.gov and at http:// for the deaf (TDD) may call the Federal as follows:

TABLE 1—DESIGNATED CRITICAL HABITAT UNITS FOR GIERISCH MALLOW

Federal State Critical habitat unit Totals Arizona Utah Arizona Utah

Unit 1. Starvation Point ...... 220 ha (544 ac) .... 802 ha (1,982 ac) 249 ha (615 ac) .... 68 ha (167 ac) ...... 1,339 ha (3,309 ac) Unit 2. Black Knolls ...... 3,586 ha (8,862 0 ...... 263 ha (651 ac) .... 0 ...... 3,850 ha (9,513 ac). ac)

Totals ...... 3,806 ha (9,406 802 ha (1,982 ac) 512 ha (1,266 ac) 68 ha (167 ac) ...... 5,189 ha (12,822 ac). ac)

We have prepared an economic FR 18943), allowing the public to environmental impacts, we have analysis of the designation of critical provide comments on our analysis. We prepared an assessment of the habitat. In order to consider economic have incorporated the comments and environmental impacts of the critical impacts, we have prepared an analysis have completed the final economic habitat designations and related factors. of the economic impacts of the critical analysis (FEA) concurrently with this We announced the availability of the habitat designations and related factors. final designation. draft environmental assessment in the We announced the availability of the We have prepared an environmental Federal Register on March 28, 2013 (78 draft economic analysis (DEA) in the assessment of the designation of critical FR 18943), allowing the public to Federal Register on March 28, 2013 (78 habitat. In order to consider provide comments on our assessment.

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We have incorporated the comments 2013. We also contacted appropriate Management (BLM)) to use her and have completed the final Federal, State, and local agencies; authorities, including leases on public environmental assessment concurrently scientific organizations; peer reviewers; lands, in furtherance of species with this final designation. and other interested parties and invited protection. Peer review and public comment. We them to comment on the proposed rule, Our Response: A species is not sought comments from independent draft economic analysis, and draft protected under section 7(a)(1) of the specialists to ensure that our environmental assessment during these Act unless it is listed under the Act. designation is based on scientifically comment periods. Newspaper notices (Elsewhere in today’s Federal Register, sound data and analyses. We obtained inviting general public comment were we published a final rule to list the opinions from three knowledgeable published in the Kingman Daily Miner Gierisch mallow as an endangered individuals with scientific expertise to on September 12, 2012, and in the Saint species under the Act.) Section 7 of the review our technical assumptions, George Spectrum on September 13, Act applies to listed species and their analysis, and whether or not we had 2012. Additionally, letters were sent to habitats for projects having a Federal used the best available information. stakeholders and special interest groups nexus (occurring on federal lands, These peer reviewers generally on September 12, 2012. We received no having federal funding, or requiring a concurred with our methods and request for a public hearing. federal permit). Section 7 consultations conclusions, and provided additional During the first comment period, we do not apply to ASLD lands unless a information, clarifications, and received 19 comment letters directly Federal nexus is present. suggestions to improve this final rule. addressing the proposed listing and (3) Comment: One commenter stated Information we received from peer critical habitat designation for the that the economic and environmental review is incorporated in this final Gierisch mallow. During the second analyses have demonstrated designation. We also considered all comment period, we received two conclusively that the plants are comments and information we received comment letters addressing the adequately protected through existing during the comment period. proposed critical habitat. All mechanisms, and that the economic substantive information provided benefits of excluding the mining areas Previous Federal Actions during comment periods has either been from the critical habitat designation All previous Federal actions are incorporated directly into this final outweigh any environmental benefit described in the final rule to list the designation or is addressed below. from including them. Gierisch mallow as an endangered (1) Comment: The commenter noted Our Response: The environmental species under the Act, which is that the draft environmental assessment assessment did not discuss the published elsewhere in today’s Federal states exclusion of the mine areas would adequacy of existing mechanisms to Register. provide an economic benefit to the protect the species in lieu of listing but community, while not resulting in the instead compared a no action Summary of Comments and Responses extinction of the species, owing to the alternative, which includes Federal Peer Review protection and restoration measures listing of the species, to one action already in place. alternative that includes critical habitat In accordance with our peer review Our Response: Our draft designation as described in the policy published on July 1, 1994 (59 FR environmental assessment presented proposed rule and a second action 34270), we solicited expert opinions three alternatives that were analyzed for alternative that includes designation of from four knowledgeable individuals their effects to the environment. One of critical habitat, but with the mine areas outside the Service with scientific those alternatives, Alternative C, looked excluded. The draft environmental expertise to review our technical at environmental effects associated with assessment did not weigh economic assumptions, interpretations of biology, our proposed critical designation if we benefits against environmental benefits and use of ecological principles with excluded the mining areas. The for any alternative. The economic respect to the Gierisch mallow. We rationale for Alternative C was based on analysis did not discuss the adequacy of received responses from three of the possible economic benefit to the existing mechanisms to protect the four peer reviewers. community. Under section 4(b)(2) of the Gierisch mallow nor did it discuss We reviewed all comments we Act, we consider the probable economic excluding any lands proposed for received from the peer reviewers for impacts of specifying any particular area critical habitat designation. The substantive issues and new information as critical habitat. Our economic economic analysis discussed the regarding threats to Gierisch mallow. analysis did not identify any increased costs associated with The peer reviewers generally concurred disproportionate costs that are likely to designating critical habitat. with our methods and conclusions, and result from the designation. (4) Comment: The Service should provided additional information, Consequently, the Secretary is not exclude lands under lease by Georgia- clarifications, and suggestions to exerting her discretion to exclude any Pacific or subject to its mining claims improve the final rule. Peer reviewer areas from this designation of critical because of the economic impact. comments are incorporated into the habitat for the Gierisch mallow based on Our Response: Currently, the land final rule as appropriate. economic impacts. See the discussion being leased by Georgia-Pacific is We requested written comments from under ‘‘Exclusions Based on Economic administered by the ASLD, and there is the public on the proposed designation Impacts.’’ no Federal nexus. Additionally, of critical habitat for the Gierisch (2) Comment: One commenter stated according to the final economic analysis mallow during two comment periods. that, as noted in the proposed rule, the and its findings of baseline and The first comment period, which was Gierisch mallow is also protected under incremental impacts, the main costs associated with the publication of the terms of the Arizona Native Plant Law, associated with the listing of the proposed rule, opened on August 17, incorporated into their mining lease Gierisch mallow are attributable to 2012 (77 FR 49894), and closed on from the Arizona State land Department consultation with the Service through October 16, 2012. The second comment (ASLD), and by section 7(a)(1) of the section 7 of the Act. Therefore, there are period opened on March 28, 2013 (78 Act, requiring the Secretary of the no projected costs associated with FR 18943), and closed on April 29, Interior (and the Bureau of Land designating critical habitat for the

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Gierisch mallow on ASLD Lands. reclamation costs increase from $77,000 survival of the Gierisch mallow. Because there are no projected costs to $80,000 as a result of this change. Although the Gierisch mallow associated with the mining operation on (7) Comment: One commenter populations occur on less than ASLD lands, beyond those attributed to provides new information on potential approximately 186 ha (460 ac), it is consultation with the Service through future gypsum mining activities on BLM important to protect those gypsum soils section 7 of the Act, and because the lands and the predicted value of mining that include pollinator habitat and final economic analysis has determined claims as it relates to the expected provide opportunities to aid in the that Georgia-Pacific does not meet the gypsum deposits in those claims. recovery of the species. small business standard, the Secretary Our Response: A formal consultation (10) Comment: The Service should of the Interior is not exercising her on these mining activities and its recommend excluding livestock from discretion to exclude these lands from associated cost has been added to the critical habitat through fencing critical habitat. final economic analysis. In addition, the exclosures. (5) Comment: One commenter asserts information regarding the value of Our Response: Please refer to the that impacts to gypsum mining on mining claims has been included in the seasonal use suggestions in the Special ASLD and BLM lands from the final economic analysis for context. Management Considerations or proposed rule should include not only (8) Comment: Critical habitat Protection section. Livestock grazing is the value of production foregone due to increases threats to private land because not the most serious threat. We know operational constraints imposed by the management of critical habitat promotes that livestock trample and eat plants; Service, but also lost wages, weeds and fires. however, the plants have been employment opportunities, royalties Our Response: Designation of areas as documented to recover from herbivory paid to Federal and State lessors, taxes, critical habitat does not require specific and trampling. It is more important to and the multiplier effect of these management actions in those areas. In reduce livestock herbivory during the expenditures. the preamble of this rule, as well as in flowering and seeding period so that plants will have the opportunity to Our Response: As discussed in the August 17, 2012, proposed rule (77 reproduce and contribute to the Chapter 4 of the draft economic FR 49894), the description of each unit recovery of the species. This can be analysis, there is no Federal nexus for within our critical habitat designation accomplished through various gypsum mining on ASLD lands, and only identifies special management management actions, including, but not therefore section 7 consultation on these considerations or protection that may be limited to, seasonal rotations for activities is not necessary and the level needed to maintain the primary constituent elements (PCEs) necessary pastures, reducing stocking rates, or of mining is not expected to be affected. removing livestock completely during BLM is required to consult with the for Gierisch mallow. Further, we did not recommend any management that drought years. Some allotments Service on mining activity occurring on currently have seasonal rotations or BLM-managed lands. The final would be expected to lead to weeds and fires. The identification of special deferred use where pastures are rested economic analysis includes two future from grazing, thereby allowing the consultations on mining activity on management considerations or protection does not mandate such plants and PCEs of critical habitat BLM-managed land and assumes that sufficient recovery. Based on what we these consultations will not result in measures take place. (9) Comment: We received several know today, permanently excluding changes to the level of mining activity. comments stating that the area proposed livestock grazing from critical habitat is The Service expects the most likely for designation as critical habitat was not necessary. outcome of these consultations to too large and not necessary to protect include conservation measures such as Summary of Changes From Proposed the species. Rule land reclamation. As such, the draft Our Response: Critical habitat is economic analysis estimated the future defined in section 3 of the Act as: The most significant changes between cost of seed collection, transplanting, (1) The specific areas within the the August 17, 2012, proposed rule (77 and propagation for the plant in areas geographical area occupied by the FR 49894) and this final rule are where mining is expected to occur. As species, at the time it is listed in changes to the primary constituent a reduction in future mining activity is accordance with the Act, on which are elements (PCEs) for the Gierisch mallow not estimated, there are not expected to found those physical or biological and the addition of discussions be resultant impacts on local features regarding land managed by the State of employment or other economic factors. (a) Essential to the conservation of the Utah School and Institutional Trust (6) Comment: One commenter species and Land Administration (SITLA). We requests omission of misstated (b) Which may require special received information related to Gierisch information in the draft economic management considerations or mallow being associated with biological analysis, specifically, the sentence in protection; and soil crusts within the gypsum soils. paragraph 178 reading: ‘‘The current (2) Specific areas outside the Because of this new information, we mining plans would allow gypsum geographical area occupied by the include biological soil crusts as a PCE deposits suitable for mallow habitat to species at the time it is listed, upon a for the Gierisch mallow. Additionally, remain on, at most, 15 acres of the 400- determination that such areas are 68 ha (167 ac) of Gierisch mallow acre lease area.’’ According to the essential for the conservation of the habitat on SITLA land is included in commenter, the lessee would be species. our calculations. This area was included responsible for reclamation of the entire The areas we are designating as in our proposed rule within critical site. critical habitat for the Gierisch mallow habitat Unit 1 and was included in our Our Response: This sentence has been include all areas that contain the total proposed critical habitat acreage; omitted in the final economic analysis physical or biological features, such as however, we reevaluated land and the estimated baseline costs have gypsum soils, pollinators, pollinator ownership for these 68 ha (167 ac) and been revised throughout the report to habitat, native vegetation, and areas free verified that they are owned by SITLA reflect this change in the area that of nonnative vegetation, that are rather than the BLM, and the BLM requires reclamation. Estimated essential to the conservation and administers the grazing lease for these

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lands. This final rule reflects this and may provide some measure of implementation of restoration, recovery, information. These are the only benefit, we find that designation of or enhancement measures by non- significant changes in this final rule. critical habitat is prudent for the Federal landowners. Where a landowner Gierisch mallow. requests Federal agency funding or Critical Habitat authorization for an action that may Background Prudency Determination affect a listed species or critical habitat, It is our intent to discuss below only Section 4 of the Act, as amended, and the consultation requirements of section those topics directly relevant to the 7(a)(2) of the Act would apply, but even implementing regulations (50 CFR designation of critical habitat for the 424.12), require that, to the maximum in the event of a destruction or adverse Gierisch mallow in this section of the modification finding, the obligation of extent prudent and determinable, the final rule. For a complete description of Secretary designate critical habitat at the the Federal action agency and the the life history and habitat needs of the landowner is not to restore or recover time the species is determined to be Gierisch mallow, see the final rule the species, but to implement endangered or threatened. Our listing the Gierisch mallow as an reasonable and prudent alternatives to regulations at 50 CFR 424.12(a)(1) state endangered species, published avoid destruction or adverse that the designation of critical habitat is elsewhere in today’s Federal Register. modification of critical habitat. not prudent when one or both of the Critical habitat is defined in section 3 Under the first prong of the Act’s following situations exist: (1) The of the Act as: definition of critical habitat, areas species is threatened by taking or other (1) The specific areas within the within the geographic area occupied by activity and the identification of critical geographical area occupied by the the species at the time it was listed (in habitat can be expected to increase the species, at the time it is listed in this case, currently occupied areas) are degree of threat to the species; or (2) the accordance with the Act, on which are included in a critical habitat designation designation of critical habitat would not found those physical or biological if they contain physical or biological be beneficial to the species. features features (1) which are essential to the There is no indication that the (a) Essential to the conservation of the conservation of the species and (2) Gierisch mallow is threatened by species and which may require special management collection, and there are no likely (b) Which may require special considerations or protection. For these increases in the degree of threats to the management considerations or areas, critical habitat designations species if critical habitat is designated. protection; and identify, to the extent known using the This species is not the target of (2) Specific areas outside the best scientific and commercial data collection, and the areas we are geographical area occupied by the available, those physical or biological designating either have restricted public species at the time it is listed, upon a features that are essential to the access (mine sites) or are already readily determination that such areas are conservation of the species (such as open to the public (BLM land). None of essential for the conservation of the space, food, cover, and protected the threats identified to the species are species. habitat). In identifying those physical associated with human access to the Conservation, as defined under and biological features within an area, sites, with the exception of the threats section 3 of the Act, means to use and we focus on the principal biological or associated with recreational activities the use of all methods and procedures physical constituent elements (primary on BLM land. This threat, or any other that are necessary to bring an constituent elements such as roost sites, identified threat, is not expected to endangered or threatened species to the nesting grounds, seasonal wetlands, increase as a result of critical habitat point at which the measures provided water quality, tide, soil type) that are designation because the BLM cannot pursuant to the Act are no longer essential to the conservation of the control unauthorized recreational necessary. Such methods and species. Primary constituent elements activities, and the designation of critical procedures include, but are not limited (PCEs) are the elements of physical or habitat does not change the situation. to, all activities associated with biological features that, when laid out in In the absence of finding that the scientific resources management such as the appropriate quantity and spatial designation of critical habitat would research, census, law enforcement, arrangement to provide for a species’ increase threats to a species, if there are habitat acquisition and maintenance, life-history processes, are essential to any benefits to a critical habitat propagation, live trapping, and the conservation of the species. designation, then a prudent finding is transplantation, and, in the Under the second prong of the Act’s warranted. The potential benefits of extraordinary case where population definition of critical habitat, we can critical habitat to the Gierisch mallow pressures within a given ecosystem designate critical habitat in areas include: (1) Triggering consultation cannot be otherwise relieved, may outside the geographic area occupied by under section 7 of the Act, in new areas include regulated taking. the species at the time it is listed (in this for actions in which there may be a Critical habitat receives protection case, outside currently occupied areas), Federal nexus where it would not under section 7 of the Act through the upon a determination that such areas otherwise occur, because, for example, requirement that Federal agencies are essential for the conservation of the Federal agencies were not aware of the ensure, in consultation with the Service, species. For example, an area currently potential impacts of an action on the that any action they authorize, fund, or occupied by the species but that was not species; (2) focusing conservation carry out is not likely to result in the occupied at the time of listing may be activities on the most essential features destruction or adverse modification of essential to the conservation of the and areas; (3) providing educational critical habitat. The designation of species and may be included in the benefits to State or county governments, critical habitat does not affect land critical habitat designation. We or private entities; and (4) preventing ownership or establish a refuge, designate critical habitat in areas people from causing inadvertent harm wilderness, reserve, preserve, or other outside the geographic area occupied by to the species. Therefore, because we conservation area. Such designation a species only when a designation have determined that the designation of does not allow the government or public limited to its range would be inadequate critical habitat will not likely increase to access private lands. Such to ensure the conservation of the the degree of threat to any of the species designation does not require species.

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Section 4 of the Act requires that we funded or permitted projects affecting areas, the Gierisch mallow requires designate critical habitat on the basis of listed species outside their designated appropriate soils, associated formations, the best scientific data available. critical habitat areas may still result in slope, drainage, and plant community Further, our Policy on Information jeopardy findings in some cases. These types within the landscape to provide Standards Under the Endangered protections and conservation tools will space for individual growth and to Species Act (published in the Federal continue to contribute to recovery of provide food, water, air, light, minerals, Register on July 1, 1994 (59 FR 34271)), this species. Similarly, critical habitat or other nutritional or physiological the Information Quality Act (section 515 designations made on the basis of the requirements. In both Arizona and Utah, of the Treasury and General best available information at the time of the Gierisch mallow is found in Government Appropriations Act for designation will not control the gypsiferous outcrops of the Harrisburg Fiscal Year 2001 (Pub. L. 106–554; H.R. direction and substance of future Member of the Kaibab Formation. In 5658)), and our associated Information recovery plans, habitat conservation Arizona, these sites may be affiliated Quality Guidelines, provide criteria, plans (HCPs), or other species with the following gypsiferous soil establish procedures, and provide conservation planning efforts if new series: guidance to ensure that our decisions information available at the time of • Nikey-Ruesh complex, are based on the best scientific data these planning efforts calls for a • Gypill-Hobog complex, available. They require our biologists, to different outcome. • Hobog-Tidwell complex, the extent consistent with the Act and Physical or Biological Features • Hobog-Grapevine complex, with the use of the best scientific data • available, to use primary and original In accordance with section 3(5)(A)(i) Grapevine-Shelly complex, • sources of information as the basis for and 4(b)(1)(A) of the Act and regulations Hindu-Rock outcrop-Gypill recommendations to designate critical at 50 CFR 424.12, in determining which complex, habitat. areas within the geographic area • Cave-Harrisburg-Grapevine When we are determining which areas occupied by the species at the time of complex, and should be designated as critical habitat, listing to designate as critical habitat, • Grapevine-Hobcan complex our primary source of information is we consider the physical or biological (Service unpublished data). generally the information developed features that are essential to the Sites in Utah are most affiliated with during the listing process for the conservation of the species and which the following soil series (Service species. Additional information sources may require special management unpublished data, 2012, p. 1): may include the recovery plan for the considerations or protection. These • Badland species, articles in peer-reviewed include, but are not limited to: • Fluvaquents and Torrifluvents, and journals, conservation plans developed (1) Space for individual and • Riverwash. by States and counties, scientific status population growth and for normal surveys and studies, biological The Gierisch mallow occurs at behavior; elevations from 821 to 1,148 meters (m) assessments, other unpublished (2) Food, water, air, light, minerals, or (2,694 to 3,766 feet (ft)) in Arizona, and materials, or experts’ opinions or other nutritional or physiological from 755 to 861 m (2,477 to 2,825 ft) in personal knowledge. requirements; Utah. We could not correlate the Habitat is dynamic, and species may (3) Cover or shelter; move from one area to another over (4) Sites for breeding, reproduction, or Gierisch mallow’s occurrences to a time. We recognize that critical habitat rearing (or development) of offspring; specific range of slopes; therefore, designated at a particular point in time and topography is not considered to be an may not include all of the habitat areas (5) Habitats that are protected from essential physical feature for this that we may later determine are disturbance or are representative of the species (Service unpublished data, necessary for the recovery of the historical, geographic, and ecological 2012). species. For these reasons, a critical distributions of a species. The Gierisch mallow occurs in habitat designation does not signal that We derive the specific physical or sparsely vegetated, warm desert habitat outside the designated area is biological features required for the communities. All occupied habitat unimportant or may not be needed for Gierisch mallow from studies of this throughout its range occurs within the recovery of the species. Areas that are species’ habitat, ecology, and life history landcover described as Mojave mid- important to the conservation of the as described in the Habitat and Life elevation mixed desert scrub species, both inside and outside the History section of our final listing rule (NatureServe 2011, p. 2). This critical habitat designation, will be published elsewhere in today’s Federal classification represents the extensive subject to: (1) Conservation actions Register and in the information desert scrub in the transition zone above implemented under section 7(a)(1) of presented below. We have determined the Larrea tridentata (creosote)– the Act, (2) regulatory protections that the following physical or biological Ambrosia dumosa (white bursage) afforded by the requirement in section features are essential for the Gierisch desert scrub and below the lower 7(a)(2) of the Act for Federal agencies to mallow. montane woodlands from 700 to 1800 m ensure their actions are not likely to (2,296 to 5,905 ft) that occur in the jeopardize the continued existence of Space for Individual and Population eastern and central Mojave Desert. The any endangered or threatened species, Growth and for Normal Behavior vegetation within this ecological system and (3) the prohibitions of section 9 of The Gierisch mallow has a limited is quite variable. A list of common the Act if actions occurring in these distribution; it is only found in a small plants associated with the Gierisch areas may affect the species. Federally area in Utah and Arizona. Within these mallow habitat is included in Table 2.

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TABLE 2—VEGETATION ASSOCIATED WITH GIERISCH MALLOW HABITAT [NatureServe 2011, p. 2]

Codominant and diagnostic species Woody plant species associates Other common nonwoody species associates

Coleogyne ramosissima (blackbrush) ...... Acacia greggii (catclaw acacia) ...... Achnatherum hymenoides (Indian ricegrass). Eriogonum fasciculatum (buckwheat) ...... Ephedra nevadensis (Nevada jointfir) ...... Achnatherum speciosum (desert needlegrass). Ephedra nevadensis (Nevada jointfir) ...... Ephedra torreyana (desert Mormon tea) ...... Muhlenbergia porteri (bush muhly). Grayia spinosa (spiny hopsage) ...... Encelia farinosa (brittlebush) ...... Eriogonum spp. (various annual buckwheats). Purshia stansburiana (Stansbury cliffrose) ...... Pleuraphis jamesii (James’ galleta). Gutierrezia sarothrae (broom snakeweed) ...... Poa secunda (Sandberg bluegrass).

Depending on the moisture regime, considered important pollinators for Bees have a limited foraging range the Gierisch mallow also can be globemallows (Tepedino 2010, p. 2). strongly correlated to body size associated with native annuals that are These solitary bees, as well as other (Greenleaf, 2005, p. 17; Steffan- often ephemeral (seen only in the Diadasia species, are known to occur Dewenter and Tscharntke 1999, pp. spring) and, like many Mohave Desert within the range of the Gierisch mallow 434–435). Fragmentation of habitat can plant species, seasonally abundant (Sipes and Tepedino 2005, pp. 490–491; result in isolating plants from pollinator based on climatic conditions. Gierisch Sipes and Wolf 2001, pp. 146–147), so nesting sites. When the distance mallow also appears to be associated it is reasonable to assume that they are between plants and the natural habitats with biologic soil crusts (Frates 2012, potential pollinators of the Gierisch of pollinators increases, plant pers. comm.). Biological soil crusts mallow and other associated vegetation reproduction (as measured by mean provide fixed carbon on sparsely in the surrounding community. The seed set) can decline by as much as 50 vegetated soils. Carbon contributed by globemallow bee, along with other percent in some plant species (Steffan- these organisms helps keep plant solitary bees, nest in the ground, and Dewenter and Tscharntke 1999, pp. interspaces fertile and aids in nests are commonly found in partially 435–436). Optimal pollination occurs supporting other microbial populations compacted soil along the margins of dirt when there is abundance of individual (Beymer and Klopatek 1991 in Floyd et roads in the western United States pollinators and a species-rich bee al. 2003, p. 1704). In desert shrub and (Tepedino 2010, p. 1). Prior to the community (Greenleaf 2005, p. 47). grassland communities that support few proliferation of roads, it is possible that Greenleaf (2005, p. 15) defines the nitrogen-fixing plants, biotic crusts can the bees nested in soils compacted by typical homing distance of a bee taxon be the dominant source of nitrogen herd animals or trails (Esque 2012, pers. as the distance at which 50 percent of (Rychert et al. 1978 and others in Floyd comm.). It is important to protect those individual bees of that taxon have the et al. 2003, p. 1704). Additionally, soil nesting sites and associated natural ability to return to their home (nest, crusts stabilize soils, help to retain habitat for the globemallow bee and etc.). Solitary bees of various species moisture, and provide seed-germination other potential pollinators. have been documented to have foraging sites. Soil crusts are effective in Natural habitat for the globemallow distances ranging from 150 m (492 ft) to capturing wind-borne dust deposits, and 1,200 m (3,937 ft) (Gathmann and have been documented contributing to a bee and other potential pollinators includes those appropriate vegetation Tscharntke 2002, p. 760; Greenleaf et al. 2- to 13-fold increase in nutrients in 2007, p. 593). southeastern Utah (Reynolds et al. 2001 communities described above in Table in Floyd et al. 2003, p. 1704). The 2. The lack of favorable natural habitat Therefore, based on the information presence of soil crusts generally can negatively influence pollination above, we identify pollinators and increases the amount and depth of productivity (Kremen et al. 2004, pp. associated appropriate native plant rainfall infiltration (Loope and Gifford 1116–1117). Sites for the Gierisch communities within 1,200 m (3,937 ft) 1972 and others in Floyd et al. 2003, p. mallow’s reproduction, germination, of occupied sites to be an essential 1704). and seed dispersal, and pollination physical or biological feature for this Therefore, based on the information providers are found within the species. above, we identify gypsum soils with communities described above. Because Habitats Protected From Disturbance or biological soil crusts found in the the Gierisch mallow is potentially Representative of the Historical, Harrisburg Member of the Kaibab pollinated by globemallow bees and Geographic, and Ecological Formation from 755 to 1,148 m (2,477 other insects, the presence of pollinator Distributions of the Species to 3,766 ft) and with the appropriate populations is essential to the native vegetation communities to be an conservation of the species. Preservation The species’ known range has not essential physical or biological feature of the mix of species and interspecific contracted or expanded since the for this species. interactions they encompass greatly species was described in 2002. All sites improves the chances for survival of contribute to ecological distribution and Sites for Reproduction, Germination, rare species in their original location function for this species by providing Seed Dispersal or Pollination and habitat (Tepedino et al. 1996, p. representation across the species’ The Gierisch mallow is a native 245). Redundancy of pollinator species limited current range. It is important to species of sparsely vegetated, warm is important because a pollinator minimize surface-disturbing activities desert communities. Although we do species may be abundant one year and throughout the limited range of the not know how the species is pollinated, less so the next year. Maintaining a full Gierisch mallow. Surface-disturbing other species of the genus Sphaeralcea suite of pollinators allows for the activities, such mining and recreation (globemallows) are pollinated by likelihood that another pollinator activities (off-highway vehicle (OHV) Diadasia diminuta (globemallow bee), species will stand in for a less abundant use and impacts related to target which specializes in pollinating plants one, and is essential in assuring shooting), remove the unique soil of this genus. Globemallow bees are adequate pollination. composition and associated vegetation

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communities that the Gierisch mallow the time of listing, focusing on the Special Management Considerations or needs. features’ primary constituent elements. Protection Additionally, it is important to have We consider primary constituent When designating critical habitat, we areas in all the critical habitat units free elements to be the elements of physical assess whether the specific areas within of nonnative, invasive species, such as or biological features that provide for a the geographic area occupied by the red brome (bromus rubens) and species’ life-history processes and are species at the time of listing contain cheatgrass (bromus tectorum). Both essential to the conservation of the features that are essential to the cheatgrass and red brome tend to not species. conservation of the species and which grow well in gypsum outcrops in Based on our current knowledge of may require special management normal (dry) rainfall years (Roaque the physical or biological features and considerations or protection. The 2102b, p. 1); however, they can be habitat characteristics required to features essential to the conservation of abundant in Gierisch mallow habitat sustain the species’ life-history this species may require special during wet years, providing continuous processes, we determine that the management considerations or fuels in otherwise open spaces (Roth primary constituent elements specific to protection to reduce the direct and 2012, entire). Invasions of annual, the Gierisch mallow are: indirect effects associated with the nonnative species, such as cheatgrass, (1) Appropriate geological layers or following threats: Habitat loss and are well documented to contribute to gypsiferous soils, in the Harrisburg degradation from mining operations; increased fire frequencies (Brooks and Member of the Kaibab Formation, that livestock grazing; recreation activities; Pyke 2002, p. 5; Grace et al. 2002, p. 43; support individual Gierisch mallow and invasive plant species. Please refer Brooks et al. 2003, pp. 4, 13, 15). The plants or their habitat, within the to the final listing rule published disturbance caused by increased fire elevation range of 775 to 1,148 m (2,477 elsewhere in today’s Federal Register frequencies creates favorable conditions to 3,766 ft). Appropriate soils are for increased invasion by cheatgrass. for a complete description of these The end result is an increase in invasive defined as: threats. • Special management to protect the species that results in more fires, more Badland, features essential to the conservation of fires create more disturbances, and more • Fluvaquents and Torrifluvents, the species from the effects of gypsum disturbances lead to increased densities • Riverwash, mining include creating managed plant of invasive species. The risk of fire is • Cave-Harrisburg-Grapevine preserves and open spaces, limiting expected to increase from 46 to 100 complex, disturbances to and within suitable percent when the cover of cheatgrass • Grapevine-Hobcan complex, habitats, and evaluating the need for increases from 12 to 45 percent or more • Nikey-Ruesh complex, (Link et al. 2006, p. 116). The invasion (and conducting restoration or • Gypill-Hobog complex, revegetation of) native plants in open of red brome into the Mojave Desert of • western North America poses similar Hobog-Tidwell complex, spaces or plant preserves containing • threats to fire regimes, native plants, Hobog-Grapevine complex, similar gypsum soils. Management and other federally protected species • Grapevine-Shelly complex, and activities that could ameliorate these (Brooks et al. 2004, pp. 677–678). • Hindu-Rock outcrop-Gypill threats include (but are not limited to) Brooks (1999, p. 16) also found that high complex. seed collection from the Gierisch mallow throughout its range, including interspace biomass of red brome and (2) Appropriate Mojave desert scrub those plants within the footprint of each cheatgrass resulted in greater fire danger plant community and associated native mine. These seeds could be used to in the Mojave Desert. Brooks (1999, p. species for the soil types at the sites begin propagation studies to determine 18) goes on to state that the ecological listed in PCE 1. effects of cheatgrass- and red brome- the long-term viability of plants growing (3) Biological soil crusts within the in reclaimed soils. Additionally, these driven fires are significant because of soil types described in PCE 1. their intensity and consumption of seeds could be used to begin (4) The presence of insect visitors or propagating plants to be planted in perennial shrubs. pollinators, such as the globemallow bee Imprecise forecasts of the impacts of other gypsum deposits and to augment and other solitary bees. To ensure the climate change make the identification existing populations. In addition to proper suite of pollinators are present, of areas that may become essential collecting seeds directly from plants, the this includes habitat that provides impractical at this time. Therefore, we seed bank could be collected from the nesting substrate for pollinators in the have not identified additional areas top 1 inch of soil before the surface areas described in PCE 2. outside those currently occupied where disturbance occurs as long as soils are the species may move to, or be (5) Areas free of disturbance and areas properly handled during seed bank transplanted to, as a result of the with low densities or absence of collection (Scoles-Sciulla and DeFalco impacts due to climate change. nonnative, invasive plants, such as red 2009, entire). Special management may Based on the information above, we brome and cheatgrass. be necessary to protect features essential identify areas free of disturbance and With this designation of critical to the conservation of the Gierisch areas with low densities or absence of habitat, we intend to identify the mallow from livestock grazing, nonnative, invasive species to be an physical or biological features essential including fencing populations; avoiding essential physical or biological feature to the conservation of the species, activities, such as water trough for this species. through the identification of primary placement, that might concentrate constituent elements sufficient to livestock near or in occupied habitat; Primary Constituent Elements for the support the life-history processes of the and removing livestock from critical Gierisch Mallow species. All units designated as critical habitat during the species’ growing and Under the Act and its implementing habitat are currently occupied by the reproductive seasons, especially during regulations, we are required to identify Gierisch mallow and contain the periods of flowering and fruiting. the physical or biological features primary constituent elements sufficient Special management that may be essential to the conservation of the to support the life-history needs of the necessary to protect the features Gierisch mallow in areas occupied at species. essential to the conservation of the

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Gierisch mallow from recreational the physical or biological features Arizona Strip Field Office, BLM’s St. activities includes directing recreational essential for the conservation of the George Field Office, and both published use away from and outside of critical species. Second, within the overall and unpublished documentation from habitat, fencing small populations, geographic area occupied by the species, our files. This information included removing or limiting access routes, there are some areas or patches devoid BLM hand-mapped polygons that ensuring land use practices do not of plants, as one would expect. outlined Gierisch mallow habitats in disturb the hydrologic regime, and Therefore, it follows that within the Arizona and Utah. avoiding activities that might critical habitat units we are designating, For all areas, survey data from 2001 concentrate water flows or sediments there are areas without the plant to 2011 were available and evaluated to into critical habitat. Additionally, growing in them. Thus, even though all identify the extent of occupied habitat threats related to both control of units are occupied when considering (provided by BLM). Although occupied nonnative, invasive species and fire the appropriate scale for critical habitat sites may gradually change, recent suppression and fire-related activities designation, there is still room for more survey results confirm that plant resulting from the spread of nonnative, plants to grow. This should provide distribution is similar to observed invasive species include: room for expansion of the existing distributions over the last 10 years. • Crushing and trampling of plants populations. Should recovery planning Our approach to delineating critical from fire suppression and treatment for this species include actions to habitat units was applied in the activities; augment or establish additional following manner: • Damage to seedbank as a result of populations, the critical habitat units (1) We overlaid Gierisch mallow fire severity; will provide for enough habitat to allow locations into a GIS database. This • Soil erosion; and for those activities. Therefore, we provided us with the ability to examine • An increase of invasive plant conclude that unoccupied areas outside slope, aspect, elevation, vegetation species that may compete with native of the geographic range of the Gierisch community, and topographic features, plant species as a result of wildfires mallow are not essential for the such as drainages, in relation to the removing non-fire-adapted native plant conservation of the species. locations of Gierisch mallow on the species or as a result of fire suppression There is no information on the landscape. The locations of Gierisch equipment introducing invasive plant historical range of this species; however, mallow, and their relationship to species. it is possible that the gypsum hills landscape features, verified our supported populations of the Gierisch previous knowledge of the species and Criteria Used To Identify Critical mallow before active mining (and Habitat slightly expanded the previously removal of the gypsum) began, but there recorded elevation ranges for Gierisch Geographic Range Occupied at the Time is no information that the species mallow. We examined Gierisch mallow of Listing occurred outside of its current range. locations in an attempt to identify any Currently, there are 18 known correlation with aspect, slope, and As required by section 4(b)(2) of the populations restricted to less than occurrence location for this species; Act, we use the best scientific data approximately 186 ha (460 ac) in however, we found no such correlation. available to designate critical habitat. Arizona and Utah, combined. The main To better understand the relationship We review available information populations in Arizona are located of the Gierisch mallow locations to pertaining to the habitat requirements of south of the Black Knolls, specific soils, we also examined soil the species. In accordance with the Act approximately 19.3 km (12 mi) series layers, aerial photography, and and its implementing regulation at 50 southwest of St. George, Utah, with the CFR 424.12(e), we consider whether southernmost population of this group hardcopy geologic maps. For Gierisch designating additional areas—outside being on the edge of Black Rock Gulch mallow, we analyzed soil survey layers. those currently occupied as well as near Mokaac Mountain. There is another For Gierisch mallow locations in Utah, those occupied at the time of listing— population approximately 4.8 km (3 mi) we found that 26.02 percent of all are necessary to ensure the conservation north of the Black Knolls, on ASLD individuals rangewide (Arizona and of the species. We are designating lands near the Arizona/Utah State line. Utah) are associated with Badland, and critical habitat in areas within the The Utah population is located on BLM 0.03 percent of all individuals are geographic area occupied by the species lands within 3.2 km (2 mi) of the associated with Fluvaquents and as described in the final rule to list the Arizona/Utah State line, near the Torrifluvents soil complexes. In Gierisch mallow (see Species Arizona population on ASLD land. Arizona, we found that occupied sites Information section of the final rule to Gypsum outcrops associated with the are associated with the following soil list the species published elsewhere in Harrisburg Member are scattered types (percentages are rangewide): • today’s Federal Register) and that throughout BLM lands in northern Nikey-Ruesh complex (3.14 contain one or more of the identified Arizona and southern Utah. Extensive percent), • primary constituent elements. The surveys were conducted in these areas Gypill-Hobog complex (65.94 geographic area occupied by Gierisch because numerous other rare plant percent), • mallow is considered its current range, species are associated with these Hobog-Tidwell complex (3.53 which includes some areas or patches landforms. Gierisch mallow plants were percent), • that are devoid of plants. We are not not located in any other areas beyond Hobog-Grapevine complex (0.85 designating any areas outside the what is currently known and described percent), • geographic area occupied by the species, above (Atwood 2008, p. 1). In Grapevine-Shelly complex (0.24 because we have determined that identifying critical habitat units for percent), and unoccupied areas are not essential for Gierisch mallow, we proceeded through • Hindu-Rock outcrop-Gypill the conservation of the species. a multi-step process. complex (0.25 percent) (Service Our rationale for not including areas unpublished data). outside of the geographic range of Mapping This provided us with several Gierisch mallow is twofold. First, the We obtained records of Gierisch polygons of occupied habitat spread areas designated as occupied contain mallow distribution from BLM’s across the above soil series.

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(2) To further refine our critical by buildings, pavement, and other We are designating as critical habitat habitat, we then included 1,200 m structures because such lands lack lands that we have determined to be (3,937 ft) of pollinator habitat around physical or biological features for areas occupied at the time of listing and the polygons of occupied habitat to Gierisch mallow. The scale of the maps that contain sufficient elements of ensure that all potential pollinators we prepared under the parameters for physical or biological features to would have a sufficient habitat to publication within the Code of Federal support life-history processes essential establish nesting sites and to provide Regulations may not reflect the for the conservation of the species. No pollinating services for Gierisch mallow, exclusion of such developed lands. Any lands outside of the geographic area as described in Primary Constituent such lands inadvertently left inside occupied at the time of listing are Elements for the Gierisch Mallow above. critical habitat boundaries shown on the designated as critical habitat. The area Additionally, the 1,200 m (3,937 ft) of maps of this final rule have been included in both units is large enough pollinator habitat included three other excluded by text in the final rule and and contains sufficient habitat to ensure gypsiferous soil types that also contain are not being designated as critical the conservation of Gierisch mallow. habitat. Therefore, a Federal action the necessary habitat for the Gierisch Two units are designated based on involving these lands would not trigger mallow. These soil types are the sufficient elements of physical or • section 7 consultation with respect to Riverwash, biological features being present to • Cave-Harrisburg-Grapevine critical habitat and the requirement of support Gierisch mallow life processes. complex, and no adverse modification unless the Both units contain all physical and • Grapevine-Hobcan complex. specific action would affect the physical (3) We then drew critical habitat or biological features in the adjacent biological features and support multiple boundaries that captured the locations, critical habitat. life processes. soils, and pollinator habitat elucidated The critical habitat designation is Final Critical Habitat Designation under (1) and (2) above. Critical habitat defined by the map or maps, as designations were then mapped using modified by any accompanying We are designating two units as Albers Equal Area (Albers) North regulatory text, presented at the end of critical habitat for Gierisch mallow. American Datum 83 (NAD 83) this document in the rule portion. We Both units are occupied and contain coordinates. include more detailed information on features that are essential to the In summary, critical habitat includes the boundaries of the critical habitat conservation of Gierisch mallow. We all gypsum soils described above as well designation in the preamble of this mapped the units with a degree of as the appropriate Mojave desert scrub document. We will make the precision commensurate with the plant community and associated native coordinates or plot points or both on available information and the size of the species associated and biological soil which each map is based available to unit. The critical habitat areas described crusts within the appropriate gypsum the public on http:// below constitute our best assessment at soils. Critical habitat also includes all www.regulations.gov at Docket No. this time of areas that meet the pollinators and their habitat within FWS–R2–ES–2013–0018, on our definition of critical habitat. The two 1,200 m (3,937 ft) of gypsum soils Internet site (http://www.fws.gov/ areas we are designating as critical occupied by Gierisch mallow. When southwest/es/arizona/), and at the field habitat are the Starvation Point Unit and determining critical habitat boundaries, office responsible for the designation the Black Knolls Unit. The approximate we made every effort to avoid including (see FOR FURTHER INFORMATION CONTACT area of each critical habitat unit is developed areas such as lands covered above). shown in Table 3.

TABLE 3—DESIGNATED CRITICAL HABITAT UNITS FOR GIERISCH MALLOW [Area estimates reflect all land within critical habitat unit boundaries]

Critical habitat unit BLM AZ Federal BLM UT Federal AZ State lands UT State lands Totals

Unit 1. Starvation Point ...... 220 ha (544 ac) .... 802 ha (1,982 ac) 249 ha (615 ac) .... 68 ha (167 ac) ...... 1,339 ha (3,309 ac) Unit 2. Black Knolls ...... 3,586 ha (8,862 0 ...... 263 ha (651 ac) .... 0 ...... 3,850 ha (9,513 ac). ac)

Totals ...... 3,806 ha (9,406 802 ha (1,982 ac) 512 ac (1,266 ac) 68 ha (167 ac) ...... 5,189 ha (12,822 ac). ac ) Note: Area sizes may not sum due to rounding.

Below, we present brief descriptions unit was occupied at the time of listing protection to control invasive plant of all units and reasons why they meet and contains the features essential to the species, to control habitat degradation the definition of critical habitat for conservation of the species. Unit 1 due to the recreation and mining Gierisch mallow. contains two Gierisch mallow activities that disrupt the soil populations, including the second composition, and to maintain the Unit 1: Starvation Point largest population. Unit 1 is located identified associated vegetation and This unit consists of 1,339 ha west of I–15 as this highway crosses the pollinators essential to the conservation (3,308.7492 ac) in Arizona and Utah, State line of Arizona and Utah, and is of the species. The portion of habitat and occurs on land managed by Arizona bounded by the Virgin River to the west that occurs on ASLD occurs within the BLM (220.31 ha; 544.40 ac) and Utah and I–15 to the south and east. footprint of the Georgia-Pacific Mine, BLM (802.11 ha; 1,982.07 ac), SITLA in The features essential to the which could resume gypsum mining Utah (67.73 ha; 167.38 ac), and ASLD in conservation of the species may require operations in the near future. Grazing, Arizona (248.83 ha; 614.87 ac). This special management considerations or which can modify the primary

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constituent elements and may require critical habitat of such species. In adversely modify critical habitat, we special management, typically occurs addition, section 7(a)(4) of the Act provide reasonable and prudent outside of the growing season for requires Federal agencies to confer with alternatives to the project, if any are Gierisch mallow in the one pasture on the Service on any agency action that is identifiable, that would avoid the Utah BLM and SITLA lands within this likely to jeopardize the continued likelihood of jeopardy and/or unit; however, recent wildfires in existence of any species proposed to be destruction or adverse modification of adjacent pastures in this allotment have listed under the Act or result in the critical habitat. We define ‘‘reasonable resulted in livestock grazing occurring destruction or adverse modification of and prudent alternatives’’ (at 50 CFR into the spring growing season for proposed critical habitat. 402.02) as alternative actions identified Gierisch mallow. These recently burned Decisions by the 5th and 9th Circuit during consultation that: pastures have since been rehabilitated, Courts of Appeals have invalidated our (1) Can be implemented in a manner and livestock grazing is anticipated to regulatory definition of ‘‘destruction or consistent with the intended purpose of return to its normal grazing rotation of adverse modification’’ (50 CFR 402.02) the action, November 1 to February 28 in the future (see Gifford Pinchot Task Force v. U.S. (2) Can be implemented consistent (Douglas 2012, p. 1). Fish and Wildlife Service, 378 F. 3d with the scope of the Federal agency’s 1059 (9th Cir. 2004) and Sierra Club v. legal authority and jurisdiction, Unit 2: Black Knolls U.S. Fish and Wildlife Service et al., 245 (3) Are economically and This unit consists of approximately F.3d 434, 442 (5th Cir. 2001)), and we technologically feasible, and 3,850 ha (9,513 ac) in Arizona, and do not rely on this regulatory definition (4) Would, in the Director’s opinion, occurs on land managed by both when analyzing whether an action is avoid the likelihood of jeopardizing the Arizona BLM (3,586.28 ha; 8,861.90 ac) likely to destroy or adversely modify continued existence of the listed species and ASLD (263.62 ha; 651.41 acres). critical habitat. Under the statutory and/or avoid the likelihood of This unit is occupied at the time of provisions of the Act, we determine destroying or adversely modifying listing and contains the features destruction or adverse modification on critical habitat. essential to the conservation of the the basis of whether, with Reasonable and prudent alternatives species. Unit 2 contains the remaining implementation of the proposed Federal can vary from slight project 16 Gierisch mallow populations, action, the affected critical habitat modifications to extensive redesign or including the largest population. Unit 2 would continue to serve its intended relocation of the project. Costs is located south of I–15 as this highway conservation role for the species. associated with implementing a crosses the State line of Arizona and If a Federal action may affect a listed reasonable and prudent alternative are Utah, and is bounded by Black Rock species or its critical habitat, the similarly variable. Regulations at 50 CFR 402.16 require Gulch to the west and Mokaac Mountain responsible Federal agency (action Federal agencies to reinitiate to the south and east. agency) must enter into consultation The features essential to the with us. Examples of actions that are consultation on previously reviewed conservation of the species may require subject to the section 7 consultation actions in instances where we have special management considerations or process are actions on State, tribal, listed a new species or subsequently protection to control invasive plant local, or private lands that require a designated critical habitat that may be species, to control habitat degradation Federal permit (such as a permit from affected and the Federal agency has due to mining activities that disrupt the the U.S. Army Corps of Engineers under retained discretionary involvement or soil composition, and to maintain the section 404 of the Clean Water Act (33 control over the action (or the agency’s identified associated vegetation and U.S.C. 1251 et seq.) or a permit from the discretionary involvement or control is pollinators essential to the conservation Service under section 10 of the Act) or authorized by law). Consequently, of the species. The largest population of that involve some other Federal action Federal agencies sometimes may need to Gierisch mallow occurs in the area of (such as funding from the Federal request reinitiation of consultation with the proposed expansion of the Black Highway Administration, Federal us on actions for which formal Rock Gypsum Mine. As described in the Aviation Administration, or the Federal consultation has been completed, if final listing rule published elsewhere in Emergency Management Agency). those actions with discretionary today’s Federal Register, grazing on Federal actions not affecting listed involvement or control may affect BLM lands in Arizona typically occurs species or critical habitat, and actions subsequently listed species or during the growing season for Gierisch on State, tribal, local, or private lands designated critical habitat. mallow on all three BLM allotments that are not federally funded or Application of the ‘‘Adverse within this critical habitat designation authorized, do not require section 7 Modification’’ Standard and is expected to modify the primary consultation. As a result of section 7 consultation, The key factor related to the adverse constituent elements, although some of modification determination is whether, the pastures are in a rest/rotation system we document compliance with the requirements of section 7(a)(2) through with implementation of the proposed in which a pasture may see an entire Federal action, the affected critical year of rest before being grazed again. our issuance of: (1) A concurrence letter for Federal habitat would continue to serve its Effects of Critical Habitat Designation actions that may affect, but are not intended conservation role for the likely to adversely affect, listed species species. Activities that may destroy or Section 7 Consultation or critical habitat; or adversely modify critical habitat are Section 7(a)(2) of the Act requires (2) A biological opinion for Federal those that alter the physical or Federal agencies, including the Service, actions that may affect, or are likely to biological features to an extent that to ensure that any action they fund, adversely affect, listed species or critical appreciably reduces the conservation authorize, or carry out is not likely to habitat. value of critical habitat for Gierisch jeopardize the continued existence of When we issue a biological opinion mallow. As discussed above, the role of any endangered species or threatened concluding that a project is likely to critical habitat is to support life-history species or result in the destruction or jeopardize the continued existence of a needs of the species and provide for the adverse modification of designated listed species and/or destroy or conservation of the species.

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Section 4(b)(8) of the Act requires us impacts, impacts on national security, baseline impacts incurred since the to briefly evaluate and describe, in any or any other relevant impacts. In species was listed, and forecasts both proposed or final regulation that considering whether to exclude a baseline and incremental impacts likely designates critical habitat, activities particular area from the designation, we to occur with the designation of critical involving a Federal action that may identify the benefits of including the habitat. destroy or adversely modify such area in the designation, identify the While we think that the incremental habitat, or that may be affected by such benefits of excluding the area from the effects approach is appropriate and designation. designation, and evaluate whether the meets the intent of the Act, we have Activities that may affect critical benefits of exclusion outweigh the taken a conservative approach in this habitat, when carried out, funded, or benefits of inclusion. If the analysis instance to ensure that we are fully authorized by a Federal agency, should indicates that the benefits of exclusion evaluating the probable effects of this result in consultation for the Gierisch outweigh the benefits of inclusion, the designation. Given that we do not have mallow. These activities include, but are Secretary may exercise his discretion to a new definition of ‘‘destruction or not limited to, actions that would exclude the area only if such exclusion adverse modification,’’ there may be significantly alter soil composition that would not result in the extinction of the certain circumstances where we may Gierisch mallow requires, including, but species. want to evaluate impacts beyond those not limited to, mining operations, that are solely incremental. Such is the livestock grazing, and special use Exclusions Based on Economic Impacts case with Gierisch mallow, where we permits for recreation activities. Under section 4(b)(2) of the Act, we have extensive case law and consider the economic impacts of determinations of effects that suggest we Exemptions specifying any particular area as critical gather information concerning not only Application of Section 4(a)(3) of the Act habitat. In order to consider economic incremental effects, but also coextensive Section 4(a)(3)(B)(i) of the Act (16 impacts, we prepared a draft economic effects. U.S.C. 1533(a)(3)(B)(i)) provides that: analysis of the proposed critical habitat The FEA also addresses how potential ‘‘The Secretary shall not designate as designation and related factors (IEc economic impacts are likely to be critical habitat any lands or other 2013, all). The draft analysis, dated distributed, including an assessment of geographic areas owned or controlled by February 22, 2013, was made available any local or regional impacts of habitat the Department of Defense, or for public review from March 28, 2013, conservation and the potential effects of through April 29, 2013 (78 FR 18943). designated for its use, that are subject to conservation activities on government Following the close of the comment an integrated natural resources agencies, private businesses, and period, a final analysis of the potential management plan (INRMP) prepared individuals. The FEA measures lost economic effects of the designation was economic efficiency associated with under section 101 of the Sikes Act (16 developed, taking into consideration the residential and commercial U.S.C. 670a), if the Secretary determines public comments and any new development and public projects and in writing that such plan provides a information. activities, such as economic impacts on benefit to the species for which critical The intent of the final economic water management and transportation habitat is proposed for designation.’’ analysis (FEA) is to quantify the projects, Federal lands, small entities, There are no Department of Defense economic impacts of all potential and the energy industry. Decision- lands with a completed INRMP within conservation efforts for Gierisch makers can use this information to the critical habitat designation. mallow; some of these costs will likely assess whether the effects of the Exclusions be incurred regardless of whether we designation might unduly burden a designate critical habitat (baseline). The particular group or economic sector. Application of Section 4(b)(2) of the Act economic impact of the final critical Finally, the FEA looks retrospectively at Section 4(b)(2) of the Act states that habitat designation is analyzed by costs that have been incurred since 2012 the Secretary shall designate and make comparing scenarios both ‘‘with critical (year of the species’ proposed listing) revisions to critical habitat on the basis habitat’’ and ‘‘without critical habitat.’’ (77 FR 49894), and considers those costs of the best available scientific data after The ‘‘without critical habitat’’ scenario that may occur in the 20 years following taking into consideration the economic represents the baseline for the analysis, the designation of critical habitat, which impact, national security impact, and considering protections already in place was determined to be the appropriate any other relevant impact of specifying for the species (e.g., under the Federal period for analysis because limited any particular area as critical habitat. listing and other Federal, State, and planning information was available for The Secretary may exclude an area from local regulations). The baseline, most activities to forecast activity levels critical habitat if he determines that the therefore, represents the costs incurred for projects beyond a 20-year timeframe. benefits of such exclusion outweigh the regardless of whether critical habitat is The FEA quantifies economic impacts of benefits of specifying such area as part designated. The ‘‘with critical habitat’’ Gierisch mallow conservation efforts of the critical habitat, unless he scenario describes the incremental associated with the following categories determines, based on the best scientific impacts associated specifically with the of activity: (1) Gypsum mining; (2) data available, that the failure to designation of critical habitat for the livestock grazing; (3) BLM Land Use designate such area as critical habitat species. The incremental conservation Plan amendment; and (4) transportation will result in the extinction of the efforts and associated impacts are those projects. species. In making that determination, not expected to occur absent the Economic impacts associated with the the statute on its face, as well as the designation of critical habitat for the designation of critical habitat are legislative history, are clear that the species. In other words, the incremental primarily administrative costs Secretary has broad discretion regarding costs are those attributable solely to the associated with consultations under which factor(s) to use and how much designation of critical habitat above and section 7 of the Act. These economic weight to give to any factor. beyond the baseline costs; these are the impacts are expected to include both Under section 4(b)(2) of the Act, we costs we consider in the final formal and informal consultations under may exclude an area from designated designation of critical habitat. The section 7 of the Act as well as technical critical habitat based on economic analysis looks retrospectively at assistance for those projects that do not

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have a Federal nexus but are anticipated of the United States with tribal entities. substantial number of small entities. to impact Gierisch mallow critical We also consider any social impacts that The SBREFA amended the RFA to habitat. Incremental impacts associated might occur because of the designation. require Federal agencies to provide a with consultations for the effects of the In preparing this final rule, we have certification statement of the factual above described activities are expected determined that there are currently no basis for certifying that the rule will not to amount to $51,000 above the baseline HCPs or other management plans for have a significant economic impact on cost over the next 20 years. Of that Gierisch mallow, and this final a substantial number of small entities. $51,000, approximately $4,700 will be designation does not include any tribal In this final rule, we are certifying that associated with gypsum mining, lands or trust resources. We anticipate the critical habitat designation for $27,000 will be attributed to livestock no impact on tribal lands, partnerships, Gierisch mallow will not have a grazing; $12,000 will be associated with or HCPs from this critical habitat significant economic impact on a BLM land management activities, and designation. Accordingly, the Secretary substantial number of small entities. $7,000 will be associated with is not exercising her discretion to The following discussion explains our transportation projects along Interstate exclude any areas from this final rationale. 15. designation based on other relevant According to the Small Business Our economic analysis did not impacts. Administration (SBA), small entities identify any disproportionate costs that include small organizations, such as are likely to result from the designation. Required Determinations independent nonprofit organizations; Our economic analysis also did not Regulatory Planning and Review— small governmental jurisdictions, indicate that the benefits of exclusion of Executive Orders 12866 and 13563 including school boards and city and critical habitat outweigh the benefits of town governments that serve fewer than inclusion. Consequently, the Secretary Executive Order 12866 provides that 50,000 residents; as well as small is not exerting her discretion to exclude the Office of Information and Regulatory businesses (13 CFR 121.201). Small any areas from this designation of Affairs (OIRA) will review all significant businesses include manufacturing and critical habitat for the Gierisch mallow rules. The Office of Information and mining concerns with fewer than 500 based on economic impacts. Regulatory Affairs has determined that employees, wholesale trade entities A copy of the FEA with supporting this rule is not significant. with fewer than 100 employees, retail documents may be obtained by Executive Order 13563 reaffirms the and service businesses with less than $5 contacting the Arizona Ecological principles of E.O. 12866, while calling million in annual sales, general and Services Office (see ADDRESSES) or by for improvements in the nation’s heavy construction businesses with less downloading from the Internet at http:// regulatory system to promote than $27.5 million in annual business, www.regulations.gov under Docket No. predictability, to reduce uncertainty, special trade contractors doing less than FWS–R2–ES–2013–0018 or at http:// and to use the best, most innovative, $11.5 million in annual business, and www.fws.gov/southwest/es/arizona/. and least burdensome tools for agricultural businesses with annual achieving regulatory ends. The sales less than $750,000. To determine Exclusions Based on National Security executive order directs agencies to if potential economic impacts to these Impacts consider regulatory approaches that small entities are significant, we Under section 4(b)(2) of the Act, we reduce burdens and maintain flexibility consider the types of activities that consider the impact on national security and freedom of choice for the public might trigger regulatory impacts under of specifying any particular area as where these approaches are relevant, this rule, as well as the types of project critical habitat. In preparing this rule, feasible, and consistent with regulatory modifications that may result. In we have determined that the lands objectives. E.O. 13563 emphasizes general, the term ‘‘significant economic within the designation of critical habitat further that regulations must be based impact’’ is meant to apply to a typical for the Gierisch mallow are not owned on the best available science and that small business firm’s business or managed by the Department of the rulemaking process must allow for operations. Defense, and, therefore, we anticipate public participation and an open Importantly, the incremental impacts no impact on national security. exchange of ideas. We have developed of a rule must be both significant and Consequently, the Secretary does not this rule in a manner consistent with substantial to prevent certification of the propose to exert her discretion to these requirements. rule under the RFA and to require the preparation of an initial regulatory exclude any areas from the final Regulatory Flexibility Act (5 U.S.C. 601 flexibility analysis. If a substantial designation based on impacts on et seq.) national security. number of small entities are affected by Under the Regulatory Flexibility Act the proposed critical habitat Exclusions Based on Other Relevant (RFA; 5 U.S.C. 601 et seq.) as amended designation, but the per-entity economic Impacts by the Small Business Regulatory impact is not significant, the Service Under section 4(b)(2) of the Act, we Enforcement Fairness Act (SBREFA) of may certify. Likewise, if the per-entity consider any other relevant impacts, in 1996 (5 U.S.C 801 et seq.), whenever an economic impact is likely to be addition to economic impacts and agency must publish a notice of significant, but the number of affected impacts on national security. We rulemaking for any proposed or final entities is not substantial, the Service consider a number of factors, including rule, it must prepare and make available may also certify. whether the landowners have developed for public comment a regulatory In our final economic analysis of the any habitat conservation plans (HCPs) flexibility analysis that describes the critical habitat designation, we or other management plans for the area, effects of the rule on small entities evaluated the potential economic effects or whether there are conservation (small businesses, small organizations, on small business entities resulting from partnerships that would be encouraged and small government jurisdictions). conservation actions related to the by designation of, or exclusion from, However, no regulatory flexibility listing of the Gierisch mallow and the critical habitat. In addition, we look at analysis is required if the head of the designation of critical habitat. The any tribal issues, and consider the agency certifies the rule will not have a analysis is based on the estimated government-to-government relationship significant economic impact on a impacts associated with the rulemaking

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as described in Chapters 4 through 5 evaluation of the potential impacts to ‘‘Adverse Modification’’ Standard and Appendix A of the analysis and those identified for Federal action section). evaluates the potential for economic agencies. Under this interpretation, In summary, we considered whether impacts related to: (1) Gypsum mining; there is no requirement under the RFA this designation will result in a (2) livestock grazing; (3) BLM Land Use to evaluate the potential impacts to significant economic effect on a Plan amendment; and (4) transportation entities not directly regulated, such as substantial number of small entities. projects. One of the mining companies small businesses. However, Executive Based on the above reasoning and (Western Mining) is larger than the Orders (EOs) 12866 and 13563 direct currently available information, we threshold for small businesses and is Federal agencies to assess costs and conclude that this rule will not result in operating on BLM-managed lands. benefits of available regulatory a significant economic impact on a Because Western Mining is operating on alternatives in quantitative (to the extent substantial number of small entities. BLM-managed lands, there is a Federal feasible) and qualitative terms. Therefore, we are certifying that the nexus, which requires BLM to consult Consequently, it is the current practice designation of critical habitat for with us for impacts to critical habitat of the Service to assess to the extent Gierisch mallow will not have a associated with these mining practicable these potential impacts if significant economic impact on a operations. The other mining company sufficient data are available, whether or substantial number of small entities, (Georgia-Pacific) is also larger than the not this analysis is believed by the and a final regulatory flexibility analysis threshold for small businesses, but it is Service to be strictly required by the is not required. operating on ASLD-managed lands and, RFA. In other words, while the effects Energy Supply, Distribution, or Use— therefore, does not have a Federal analysis required under the RFA is Executive Order 13211 nexus. Because there is no Federal limited to entities directly regulated by Executive Order 13211 (Actions nexus associated with ASLD-managed the rulemaking, the effects analysis Concerning Regulations That lands, Georgia-Pacific is not required to under the Act, consistent with the EOs’ Significantly Affect Energy Supply, consult with our office for impacts to regulatory analysis requirements, can Distribution, or Use) requires agencies critical habitat associated with their take into consideration impacts to both to prepare Statements of Energy Effects mining operations. Livestock grazing directly and indirectly impacted when undertaking certain actions. OMB operations occurring on BLM-managed entities, where practicable and has provided guidance for lands will also require consultation with reasonable. implementing this Executive Order that our office by the BLM due to the Federal In conclusion, we believe that, based outlines nine outcomes that may nexus of BLM permitting these activities on our interpretation of directly constitute ‘‘a significant adverse effect’’ on their lands. Administrative costs of regulated entities under the RFA and when compared to not taking the consultations on road and bridge relevant case law, this designation of regulatory action under consideration. construction and maintenance are critical habitat will only directly The economic analysis determined that expected to be borne by us, the Federal regulate Federal agencies, which are not Gierisch mallow critical habitat will Highway Administration, and the by definition small business entities. As have no effect on any aspect of energy Arizona Department of Transportation. such, we certify that this designation of supply or distribution. Therefore, the Therefore, no incremental impacts to critical habitat will not have a economic analysis finds that none of small entities will be associated with significant economic impact on a these criteria is relevant to this analysis. these consultations. Many of BLM’s substantial number of small business Thus, based on information in the remaining land management activities, entities. Therefore, a final regulatory economic analysis, energy-related as well as those described above, flexibility analysis is not required. impacts associated with Gierisch associated with their Land Use Plan will However, though not necessarily mallow conservation activities within require consultation with our office and required by the RFA, in our final critical habitat are not expected. As will not involve third parties. Because economic analysis for this rule we such, the designation of critical habitat these consultations do not involve third considered and evaluated the potential is not expected to significantly affect parties, no impacts to small entities are effects to third parties that may be energy supplies, distribution, or use. expected related to these consultations involved with consultations with Therefore, this action is not a significant and conservation efforts. Federal action agencies related to this energy action, and no Statement of The Service’s current understanding action. Energy Effects is required. of recent case law is that Federal Designation of critical habitat only agencies are only required to evaluate affects activities authorized, funded, or Unfunded Mandates Reform Act (2 the potential impacts of rulemaking on carried out by Federal agencies. Some U.S.C. 1501 et seq.) those entities directly regulated by the kinds of activities are unlikely to have In accordance with the Unfunded rulemaking; therefore, they are not any Federal involvement and so will not Mandates Reform Act (2 U.S.C. 1501 et required to evaluate the potential be affected by critical habitat seq.), we make the following findings: impacts to those entities not directly designation. In areas where the species (1) This rule will not produce a regulated. The designation of critical is present, Federal agencies are required Federal mandate. In general, a Federal habitat for an endangered or threatened to consult with us under section 7 of the mandate is a provision in legislation, species only has a regulatory effect Act on activities they authorize, fund, or statute, or regulation that would impose where a Federal action agency is carry out that may affect the Gierisch an enforceable duty upon State, local, or involved in a particular action that may mallow. Federal agencies also must tribal governments, or the private sector, affect the designated critical habitat. consult with us if their activities may and includes both ‘‘Federal Under these circumstances, only the affect critical habitat. Designation of intergovernmental mandates’’ and Federal action agency is directly critical habitat, therefore, could result in ‘‘Federal private sector mandates.’’ regulated by the designation, and, an additional economic impact on small These terms are defined in 2 U.S.C. therefore, consistent with the Service’s entities due to the requirement to 658(5)–(7). ‘‘Federal intergovernmental current interpretation of RFA and recent reinitiate consultation for ongoing mandate’’ includes a regulation that case law, the Service may limit its Federal activities (see Application of the ‘‘would impose an enforceable duty

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upon State, local, or tribal governments’’ Therefore, a Small Government Agency impacts above and beyond the current with two exceptions. It excludes ‘‘a Plan is not required. regulatory burden. Additionally, our condition of Federal assistance.’’ It also economic analysis considered whether Takings—Executive Order 12630 excludes ‘‘a duty arising from designating critical habitat will result in participation in a voluntary Federal In accordance with Executive Order a significant economic effect on a program,’’ unless the regulation ‘‘relates 12630 (Government Actions and substantial number of small entities. to a then-existing Federal program Interference with Constitutionally The economic analysis found that under which $500,000,000 or more is Protected Private Property Rights), we designation will not affect a substantial provided annually to State, local, and have analyzed the potential takings number of small entities. Based on tribal governments under entitlement implications of designating critical information contained in the final authority,’’ if the provision would habitat for Gierisch mallow in a takings economic analysis and final ‘‘increase the stringency of conditions of implications assessment. As discussed environmental assessment and assistance’’ or ‘‘place caps upon, or above, the designation of critical habitat described within this document, it is otherwise decrease, the Federal affects only Federal actions. Although not likely that economic impacts to a Government’s responsibility to provide private parties that receive Federal property owner would be of a sufficient funding,’’ and the State, local, or tribal funding, assistance, or require approval magnitude to support a takings action. governments ‘‘lack authority’’ to adjust or authorization from a Federal agency Therefore, we anticipate that this accordingly. At the time of enactment, for an action may be indirectly impacted critical habitat designation will result in these entitlement programs were: by the designation of critical habitat, the insignificant takings implications on Medicaid; Aid to Families with legally binding duty to avoid these lands. The takings implications Dependent Children work programs; destruction or adverse modification of assessment concludes that this Child Nutrition; Food Stamps; Social critical habitat rests squarely on the designation of critical habitat for Services Block Grants; Vocational Federal agency. We believe that the Gierisch mallow does not pose Rehabilitation State Grants; Foster Care, takings implications associated with significant takings implications for Adoption Assistance, and Independent this critical habitat designation will be lands within or affected by the Living; Family Support Welfare insignificant, in part, because both units designation. Services; and Child Support designated are currently considered Federalism—Executive Order 13132 Enforcement. ‘‘Federal private sector occupied by the Gierisch mallow and mandate’’ includes a regulation that the ability of the species to persist is In accordance with Executive Order ‘‘would impose an enforceable duty very closely tied to its habitat. As a 13132 (Federalism), this rule does not upon the private sector, except (i) a result of the biology and life-history have significant Federalism effects. A condition of Federal assistance or (ii) a characteristics of this species, we found federalism summary impact statement is duty arising from participation in a only minor incremental differences not required. In keeping with voluntary Federal program.’’ between the outcomes of section 7 Department of the Interior and The designation of critical habitat consultation with and without Department of Commerce policy, we does not impose a legally binding duty designation of critical habitat. requested information from, and on non-Federal Government entities or Our economic analysis found that the coordinated development of, this private parties. Under the Act, the only impacts of any potential project critical habitat designation with regulatory effect is that Federal agencies modifications, and, therefore, impacts to appropriate State resource agencies in must ensure that their actions do not private land rights, resulting from the Arizona and Utah. We did not receive destroy or adversely modify critical designation of critical habitat will be any comments from State resource habitat under section 7. While non- very small. This is because the baseline agencies in Arizona and Utah. The Federal entities that receive Federal situation without designating critical designation of critical habitat in areas funding, assistance, or permits, or that habitat already provides protections to currently occupied by the Gierisch otherwise require approval or the species and its habitats through mallow imposes no additional authorization from a Federal agency for being listed as endangered. With or restrictions to those put in place by the an action, may be indirectly impacted without critical habitat, Federal actions listing of this species and, therefore, has by the designation of critical habitat, the that may affect the Gierisch mallow will little incremental impact on State and legally binding duty to avoid be required to undergo section 7 local governments and their activities. destruction or adverse modification of consultation. Because the species is so The designation may have some benefit critical habitat rests squarely on the closely associated with its habitat, we to these governments because the areas Federal agency. Furthermore, to the cannot foresee a different outcome of that contain the physical or biological extent that non-Federal entities are the section 7 consultation under either features essential to the conservation of indirectly impacted because they the jeopardy or adverse modification the species are more clearly defined, receive Federal assistance or participate standards. For private actions not and the elements of the features of the in a voluntary Federal aid program, the involving a Federal nexus, no change in habitat necessary to the conservation of Unfunded Mandates Reform Act would potential impacts to private land rights the species are specifically identified. not apply, nor would critical habitat will result from the designation of This information does not alter where shift the costs of the large entitlement critical habitat because critical habitat and what federally sponsored activities programs listed above onto State protections only apply to Federal may occur. However, it may assist local governments. actions. governments in long-range planning (2) We do not believe that this rule Overall, our economic analysis and (rather than having them wait for case- will significantly or uniquely affect environmental assessment found only by-case section 7 consultations to small governments because the lands very minor incremental costs associated occur). being designated as critical habitat are with the critical habitat designation, and Where State and local governments owned by the State of Arizona, State of we do not, therefore, anticipate that the require approval or authorization from a Utah, and the BLM. None of these critical habitat designation for the Federal agency for actions that may government entities fit the definition of Gierisch mallow will result in affect critical habitat, consultation ‘‘small governmental jurisdiction.’’ significant incremental economic under section 7(a)(2) would be required.

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While non-Federal entities that receive Act. We published a notice outlining significantly affecting the quality of the Federal funding, assistance, or permits, our reasons for this determination in the human environment under the meaning or that otherwise require approval or Federal Register on October 25, 1983 of section 102(2)(C) of NEPA. authorization from a Federal agency for (48 FR 49244). This position was upheld an action, may be indirectly impacted by the U.S. Court of Appeals for the Government-to-Government by the designation of critical habitat, the Ninth Circuit (Douglas County v. Relationship With Tribes legally binding duty to avoid Babbitt, 48 F.3d 1495 (9th Cir. 1995), In accordance with the President’s destruction or adverse modification of cert. denied 516 U.S. 1042 (1996)). memorandum of April 29, 1994 critical habitat rests squarely on the However, when the range of the species (Government-to-Government Relations Federal agency. includes States within the Tenth with Native American Tribal Circuit, such as that of Gierisch mallow, Civil Justice Reform—Executive Order Governments; 59 FR 22951), Executive under the Tenth Circuit ruling in Catron 12988 Order 13175 (Consultation and County Board of Commissioners v. U.S. Coordination with Indian Tribal In accordance with Executive Order Fish and Wildlife Service, 75 F.3d 1429 Governments), and the Department of 12988 (Civil Justice Reform), the Office (10th Cir. 1996), we undertake a NEPA the Interior’s manual at 512 DM 2, we of the Solicitor has determined that the analysis for critical habitat designation rule does not unduly burden the judicial readily acknowledge our responsibility and notify the public of the availability to communicate meaningfully with system and that it meets the of the draft environmental assessment requirements of sections 3(a) and 3(b)(2) recognized Federal Tribes on a for this proposal when it is finished. government-to-government basis. In of the Order. We are designating critical We performed the NEPA analysis, and accordance with Secretarial Order 3206 habitat in accordance with the the draft environmental assessment was of June 5, 1997 (American Indian Tribal provisions of the Act. To assist the made available for public comment on Rights, Federal-Tribal Trust public in understanding the habitat March 28, 2013 (78 FR 18943). The final Responsibilities, and the Endangered needs of the species, the rule identifies environmental assessment has been the elements of physical or biological completed and is available for review Species Act), we readily acknowledge features essential to the conservation of with the publication of this final rule. our responsibilities to work directly the Gierisch mallow. The designated You may obtain a copy of the final with tribes in developing programs for areas of critical habitat are presented on environmental assessment online at healthy ecosystems, to acknowledge that maps, and the rule provides several http://www.regulations.gov under tribal lands are not subject to the same options for the interested public to Docket No. FWS–R2–ES–2013–0018, by controls as Federal public lands, to obtain more detailed location mail from the Arizona Ecological remain sensitive to Indian culture, and to make information available to tribes. information, if desired. Services Office (see ADDRESSES), or by visiting our Web site at http:// We determined that there are no tribal Paperwork Reduction Act of 1995 (44 www.fws.gov/southwest/es/arizona/. lands that are occupied by the Gierisch U.S.C. 3501 et seq.) The environmental analysis evaluated mallow that contain the physical or This rule does not contain any new three alternatives: No critical habitat biological features essential for collections of information that require designation, critical habitat designation conservation of the species, and no approval by OMB under the Paperwork with no exclusions, and critical habitat tribal lands unoccupied by the Gierisch Reduction Act of 1995 (44 U.S.C. 3501 designation with the exclusion of the mallow that are essential for the et seq.). This rule will not impose gypsum mines. The assessment conservation of the species. Therefore, recordkeeping or reporting requirements considered potential impacts to the we are not designating critical habitat on State or local governments, human environment from for the Gierisch mallow on tribal lands. individuals, businesses, or implementation of each alternative. The References Cited organizations. An agency may not assessment differentiates between conduct or sponsor, and a person is not section7 consultations that will occur A complete list of references cited in required to respond to, a collection of due to the listing of the species this rulemaking is available on the information unless it displays a regardless of critical habitat designation, Internet at http://www.regulations.gov at currently valid OMB control number. and consultations that result from the Docket No. FWS–R2–ES–2013–0018 and presence of critical habitat. As a result upon request from the Arizona National Environmental Policy Act (42 of the environmental assessment, it was Ecological Services Office (see FOR U.S.C. 4321 et seq.) determined that there would be no FURTHER INFORMATION CONTACT). We have determined that benefit to excluding the lands proposed environmental assessments and for gypsum mining from critical habitat. Authors environmental impact statements, as Pursuant to the Council on The primary authors of this document defined under the authority of the Environmental Quality regulations for are the staff of the Arizona Ecological National Environmental Policy Act implementing NEPA (40 CFR 1500– Services Office. (NEPA; 42 U.S.C. 4321 et seq.), need not 1518), the environmental analysis be prepared in connection with determined that, in the context of short- List of Subjects in 50 CFR Part 17 designating critical habitat under the and long-term impacts, the effects of the Act. We published a notice outlining critical habitat designation at this scale Endangered and threatened species, our reasons for this determination in the would be small. Additionally, the Exports, Imports, Reporting and Federal Register on October 25, 1983 environmental analysis determined that recordkeeping requirements, (48 FR 49244). the intensity of impacts of designation Transportation. It is our position that, outside the of critical habitat for Gierisch mallow Regulation Promulgation jurisdiction of the U.S. Court of Appeals would be low. Furthermore, the for the Tenth Circuit, we do not need to environmental assessment concluded Accordingly, we are amending part prepare environmental analyses that the designation of critical habitat 17, subchapter B of chapter I, title 50 of pursuant to NEPA in connection with for the Gierisch mallow does not the Code of Federal Regulations, as set designating critical habitat under the constitute a major Federal action forth below:

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PART 17—[AMENDED] (B) Fluvaquents and Torrifluvents, biological soil crusts within the (C) Riverwash, appropriate gypsum soils. Critical ■ 1. The authority citation for part 17 (D) Cave-Harrisburg-Grapevine habitat also includes all pollinators and continues to read as follows: complex, their habitat within 1,200 meters (3,937 Authority: 16 U.S.C. 1361–1407; 1531– (E) Grapevine-Hobcan complex, feet) of gypsum soils occupied by 1544; 4201–4245, unless otherwise noted. (F) Nikey-Ruesh complex, Gierisch mallow. Critical habitat does (G) Gypill-Hobog complex, ■ not include manmade structures (such 2. Amend § 17.96(a) by adding an (H) Hobog-Tidwell complex, entry for ‘‘Sphaeralcea gierischii (I) Hobog-Grapevine complex, as buildings, aqueducts, runways, roads, (Gierisch mallow),’’ in alphabetical (J) Grapevine-Shelly complex, and and other paved areas) and the land on order under the family Malvaceae, to (K) Hindu-Rock outcrop-Gypill which they are located existing within read as follows: complex. the legal boundaries on September 12, (ii) Appropriate Mojave desert scrub 2013. § 17.96 Critical habitat—plants. plant community and associated native (4) Critical habitat map units. Data (a) Flowering plants. species for the soil types at the sites layers defining map units were created * * * * * listed in paragraph (2)(i) of this entry. using Albers Equal Area (Albers) North Family Malvaceae: Sphaeralcea (iii) Biological soil crusts within the American Datum 83 (NAD 83) gierischii (Gierisch mallow) soil types listed in paragraph (2)(i) of coordinates. The maps in this entry, as (1) Critical habitat units are depicted this entry. modified by any accompanying (iv) The presence of insect visitors or for Washington County, Utah, and regulatory text, establish the boundaries pollinators, such as the globemallow bee Mohave County, Arizona, on the maps of the critical habitat designation. The below. and other solitary bees. To ensure the coordinates or plot points or both on (2) Within these areas, the primary proper suite of pollinators are present, constituent elements of the physical or this includes habitat that provides which each map is based are available biological features essential to the nesting substrate for pollinators in the to the public at the Service’s internet conservation of Gierisch mallow consist areas described in paragraph (2)(ii) of site (http://www.fws.gov/southwest/es/ of the following components: this entry. Arizona/), at the Federal eRulemaking (i) Appropriate geological layers or (v) Areas free of disturbance and areas Portal (http://www.regulations.gov, at gypsiferous soils, in the Harrisburg with low densities or absence of Docket No. FWS–R2–ES–2013–0018, Member of the Kaibab Formation, that nonnative, invasive plants, such as red and at the field office responsible for support individual Gierisch mallow brome and cheatgrass. this designation. You may obtain field plants or their habitat, within the (3) Critical habitat includes all office location information by elevation range of 775 to 1,148 meters gypsum soils described in paragraph (2) contacting one of the Service regional (2,477 to 3,766 feet). Appropriate soils of this entry, as well as the appropriate offices, the addresses of which are listed are defined as: Mojave desert scrub plant community at 50 CFR 2.2. (A) Badland, and associated native species and BILLING CODE 4310–55–P

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(5) Index map follows:

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(6) Unit 1: Starvation Point Unit, Washington County, Utah. Map of Units Mohave County, Arizona, and 1 and 2 follows:

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(7) Unit 2: Black Knolls Unit, Mohave sustainable levels according to the best be met. The ACLs and AMs for all other County, Arizona. Map of Unit 2 is scientific information available. SASWG species would remain provided at paragraph (6) of this entry. DATES: This rule is effective September unchanged. This rule also reduces the * * * * * 12, 2013. gag commercial ACL from 353,940 lb (160,544 kg), gutted weight, to 326,722 Dated: August 1, 2013. ADDRESSES: Electronic copies of Regulatory Amendment 15, which lb (148,199 kg), gutted weight, to Rachel Jacobson, account for projected gag discard Principal Deputy Assistant Secretary for Fish includes an environmental assessment and a regulatory impact review, may be mortality from commercial trips that and Wildlife and Parks. target co-occurring species (i.e., red [FR Doc. 2013–19385 Filed 8–12–13; 8:45 am] obtained from the Southeast Regional Office Web site at http:// grouper and scamp) during a gag BILLING CODE 4310–55–C sero.nmfs.noaa.gov/sf/pdfs/ closure. SGRegAmend15.pdf. Other Changes to Codified Text DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: Rick This rule makes several changes to the DeVictor, Southeast Regional Office, regulatory text in 50 CFR part 622 that National Oceanic and Atmospheric telephone: 727–824–5305, or email: are administrative in nature and Administration [email protected]. unrelated to Regulatory Amendment 15. In two paragraphs within § 622.183, 50 CFR Part 622 SUPPLEMENTARY INFORMATION: The snapper-grouper fishery of the South ‘‘fishery’’ is changed to ‘‘sector’’ to [Docket No. 120924488–3671–02] Atlantic, which includes yellowtail clarify that it is a commercial sector or recreational sector within a specific RIN 0648–BC60 snapper and SASWG species (i.e., gag, black grouper, red grouper, scamp, red fishery and to be consistent with other Fisheries of the Caribbean, Gulf of hind, rock hind, yellowmouth grouper, regulations in part 622. Mexico, and South Atlantic; Snapper- yellowfin grouper, graysby, and coney), Black grouper and red grouper are Grouper Fishery Off the Southern is managed under the FMP. The FMP removed from the heading of Atlantic States; Regulatory was prepared by the Council and is § 622.190(c)(1), restrictions applicable Amendment 15 implemented through regulations at 50 after a commercial quota closure, CFR part 622 under the authority of the because black grouper and red grouper AGENCY: National Marine Fisheries Magnuson-Stevens Fishery no longer have quotas, only ACLs and Service (NMFS), National Oceanic and Conservation and Management Act AMs. Atmospheric Administration (NOAA), (Magnuson-Stevens Act). In several paragraphs within Commerce. On May 24, 2013, NMFS published a § 622.193, ‘‘fishery’’ is changed to ACTION: Final rule. proposed rule for Regulatory ‘‘sector’’, for clarification and Amendment 15 and requested public consistency purposes. Also in § 622.193, SUMMARY: NMFS implements the specific years for evaluating the management measures described in a comments (78 FR 31511). The proposed rule and the regulatory amendment recreational landings relative to the ACL regulatory amendment (Regulatory are removed from the regulatory text Amendment 15) to the Fishery outline the rationale for the actions contained in this final rule. A summary because these years will keep changing. Management Plan for the Snapper- Instead, more general language is Grouper Fishery of the South Atlantic of the actions implemented by this final rule are provided below. included in the regulatory text, Region (FMP), as prepared by the South specifically referring to a multi-year Atlantic Fishery Management Council Management Measures Contained in average of landings, as described in the (Council). This final rule increases the This Final Rule FMP. In addition, closure provisions are commercial and recreational ACLs for This rule implements management included in the regulatory text for yellowtail snapper, decreases the measures affecting yellowtail snapper, snowy grouper when the recreational commercial ACL for gag, and revises the gag, and other SASWG harvested in or post-season AM is implemented, accountability measure (AM) for gag by from the South Atlantic EEZ. because these closure provisions were removing the requirement that all other inadvertently not included in the final South Atlantic shallow-water grouper Yellowtail Snapper rule to implement the Comprehensive (SASWG) are prohibited from harvest This rule increases the commercial ACL Amendment. when the gag commercial ACL is met or ACL, recreational ACL, and recreational In Table 4 of Appendix A to Part 622, projected to be met. In addition, ACT for yellowtail snapper. The ‘‘Grass porgy, Calamus arctifrons’’ is Regulatory Amendment 15 revises the commercial ACL increases from removed from the table because this optimum yield (OY) for yellowtail 1,142,589 lb (518,270 kg), round weight, species was removed from the South snapper and increases the recreational to 1,596,510 lb (725,686 kg), round Atlantic snapper-grouper fishery annual catch target (ACT) for yellowtail weight. The recreational ACL increases management unit in the Comprehensive snapper harvested in or from the South from 1,031,286 lb (467,783 kg), round ACL Amendment; however, it was Atlantic exclusive economic zone (EEZ). weight, to 1,440,990 lb (653,622 kg), inadvertently not removed from the This final rule also includes several round weight. The recreational ACT regulations during implementation of administrative changes to regulatory increases from 897,160 lb (406,945 kg), that amendment. text, which are unrelated to the round weight, to 1,253,661 lb (568,651 Comments and Responses measures contained in Regulatory kg), round weight. Amendment 15. The purpose of A total of 14 comments were received Regulatory Amendment 15 and this Gag and Other South Atlantic Shallow- on the proposed rule for Regulatory final rule is to provide socio-economic Water Grouper Amendment 15 from individuals, benefits to snapper-grouper fishermen This rule modifies the commercial fishermen, and two fishing associations. and communities that utilize the AM for gag so that only the commercial Nine commenters supported the actions snapper-grouper resource, while sector for gag closes when the gag in the amendment and the proposed maintaining fishing mortality at commercial ACL is met or projected to rule. A Federal agency stated that the

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