Vol. 77 Friday, No. 160 August 17, 2012

Part III

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Determination of Status for the Gierisch Mallow and Designation of Critical Habitat; Proposed Rule

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DEPARTMENT OF THE INTERIOR We request that you send comments to designate critical habitat for the only by the methods described above. species. In total, approximately 5,189 Fish and Wildlife Service We will post all comments on http:// hectares (ha) (12,822 acres (ac)) are www.regulations.gov. This generally proposed for designation as critical 50 CFR Part 17 means that we will post any personal habitat in both Arizona and Utah. [Docket No. FWS–R2–ES–2012–0049; information you provide us (see the The Endangered Species Act provides 4500030113] Public Comments section below for the basis for our action. Under the more information). Endangered Species Act, we can RIN 1018–AY58 The coordinates, or plot points, or determine that a species is endangered both from which the critical habitat or threatened based on any of five Endangered and Threatened Wildlife maps are generated are included in the and Plants; Determination of Status for factors: (A) The present or threatened administrative record for this destruction, modification, or the Gierisch Mallow and Designation of rulemaking and are available at (http:// Critical Habitat curtailment of its habitat or range; (B) www.fws.gov/southwest/es/arizona/), overutilization for commercial, http://www.regulations.gov at Docket AGENCY: Fish and Wildlife Service, recreational, scientific, or educational Interior. No. FWS–R2–ES–2012–0049, and at the purposes; (C) disease or predation; (D) Arizona Ecological Services Field Office ACTION: Proposed rule. the inadequacy of existing regulatory (see FOR FURTHER INFORMATION CONTACT). mechanisms; or (E) other natural or SUMMARY: We, the U.S. Fish and Any additional tools or supporting manmade factors affecting its continued Wildlife Service, propose to list as information that we may develop for existence. Factors supporting the endangered the Gierisch mallow and this rulemaking will also be available at proposed endangered status for Gierisch propose critical habitat for the species the Fish and Wildlife Service Web site mallow include: and Field Office set out above, and may under the Endangered Species Act. This • Habitat loss and degradation of also be included in the preamble and/ action is being taken as the result of a appropriate gypsum soils as a result of or at http://www.regulations.gov. court-approved settlement agreement. mining operations and recreation These are proposed regulations, and if FOR FURTHER INFORMATION CONTACT: activities, including off-highway vehicle finalized, the effect of these regulations Steve Spangle, Field Supervisor, U.S. (OHV) use, target shooting, and trash will be to add the species to the List of Fish and Wildlife Service, Arizona dumping; Ecological Services Field Office, 2321 Endangered or Threatened Plants and to • Inadequate existing regulatory West Royal Palm Road, Suite 103, designate critical habitat under the mechanisms that allow significant Phoenix, AZ 85021; by telephone (602) Endangered Species Act. habitat-based impacts, such as 242–0210; or by facsimile (602) 242– DATES: We will accept comments regulations governing mining 2513. Persons who use a received or postmarked on or before operations; telecommunications device for the deaf October 16, 2012. We must receive • The spread of nonnative, invasive requests for public hearings, in writing, (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339. plant species such as Bromus tectorum at the address shown in FOR FURTHER (cheatgrass) and B. rubens (red brome) SUPPLEMENTARY INFORMATION: INFORMATION CONTACT by October 1, that can alter native vegetation and 2012. Executive Summary promote conditions that support ADDRESSES: You may submit comments This document consists of a proposed wildfires; and by one of the following methods: rule to list as endangered Sphaeralcea • Other natural or manmade factors, (1) Electronically: Go to the Federal gierischii (Gierisch mallow) and to including the small population size of eRulemaking Portal: http:// designate critical habitat for Gierisch Gierisch mallow, natural environmental www.regulations.gov and search for mallow. In this proposed rule, we will variability, and climate conditions, such Docket No. FWS–R2–ES–2012–0049, refer to Sphaeralcea gierischii as as sustained drought. which is the docket number for this Gierisch mallow. This rule proposes designation of rulemaking. Then, in the Search panel Why we need to publish a rule. Under critical habitat for Gierisch mallow. on the left side of the screen, under the the Endangered Species Act, a species Under the Endangered Species Act, we Document Type heading, click on the may warrant protection through listing designate specific areas as critical Proposed Rules link to locate this if it is endangered or threatened habitat to foster conservation of listed document. You may submit a comment throughout all or a significant portion of species. Future actions funded, by clicking on ‘‘Comment Now!.’’ its range. In this proposal, we are permitted, or otherwise carried out by (2) By hard copy: Submit by U.S. mail explaining why Gierisch mallow Federal agencies will be reviewed to or hand-delivery to: Public Comments warrants protection under the ensure they do not adversely modify Processing, Attn: FWS–R2–ES–2012– Endangered Species Act. This rule critical habitat. Critical habitat does not 0049; Division of Policy and Directives proposes to list the Gierisch mallow as affect private actions on private lands Management; U.S. Fish and Wildlife endangered throughout its range in absent Federal funding. We are Service; 4401 N. Fairfax Drive, MS Mohave County, Arizona, and proposing the following areas as critical 2042–PDM; Arlington, VA 22203. Washington County, Utah, and proposes habitat for Gierisch mallow:

Federal State Critical habitat unit Arizona Utah Arizona Totals

Unit 1. Starvation Point ..... 0 ...... 1,022 ha (2,526 ac) ...... 316 ha (782 ac) ...... 1,339 ha (3,309 ac). Unit 2. Black Knolls ...... 3,586 ha (8,862 ac) ...... 0 ...... 263 ha (651 ac) ...... 3,850 ha (9,513 ac).

Totals ...... 3,586 ha (8,862 ac) ...... 1,022 ha (2,526 ac) ...... 580 ac (1,434 ac) ...... 5,189 ha (12,822 ac).

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We are preparing an economic (5) The reasons why we should or providing supporting information, analysis. To ensure that we consider the should not designate habitat as ‘‘critical although noted, will not be considered economic impacts of designating critical habitat’’ under section 4 of the in making a determination, as section habitat, we are preparing an economic Endangered Species Act of 1973, as 4(b)(1)(A) of the Act directs that analysis of the proposed critical habitat amended (Act) (16 U.S.C. 1531 et seq.) determinations as to whether any designation. We will publish an including whether there are threats to species is a threatened or endangered announcement and seek public the species from human activity, the species must be made ‘‘solely on the comments on the draft economic degree of which can be expected to basis of the best scientific and analysis when it is completed. increase due to the designation, and commercial data available.’’ We will request peer review of the whether that increase in threat You may submit your comments and methods used in our proposal. We will outweighs the benefit of designation materials concerning this proposed rule specifically request that several such that the designation of critical by one of the methods listed in the knowledgeable individuals with habitat may not be prudent. ADDRESSES section. We request that you scientific expertise in this species or (6) Specific information on: send comments only by the methods related fields review the scientific (a) The amount and distribution of described in the ADDRESSES section. information and methods that we used Gierisch mallow habitat; If you submit information via http:// in developing this proposal. (b) What areas, that were occupied at www.regulations.gov, your entire We are seeking public comment on the time of listing (or are currently submission—including any personal this proposed rule. Anyone is welcome occupied) and that contain features identifying information—will be posted to comment on our proposal or provide essential to the conservation of the on the Web site. If your submission is additional information on the proposal species, should be included in the made via a hardcopy that includes that we can use in making a final designation and why; personal identifying information, you may request at the top of your document determination on the status of this (c) Special management that we withhold this information from species. Please submit your comments considerations or protection that may be public review. However, we cannot and materials concerning this proposed needed in critical habitat areas we are guarantee that we will be able to do so. rule by one of the methods listed in the proposing, including managing for the potential effects of climate change; and We will post all hardcopy submissions ADDRESSES section. Within 1 year (d) What areas not occupied at the on http://www.regulations.gov. Please following the publication of this time of listing are essential for the include sufficient information with your proposal, we will publish in the Federal conservation of the species and why. comments to allow us to verify any Register a final determination (7) Land use designations and current scientific or commercial information concerning the listing of the species and or planned activities in the subject areas you include. the designation of its critical habitat or and their possible impacts on proposed Comments and materials we receive, withdraw the proposal if new critical habitat. as well as supporting documentation we information is provided that supports (8) Information on the projected and used in preparing this proposed rule, that decision. reasonably likely impacts of climate will be available for public inspection Public Comments change on the Gierisch mallow and on http://www.regulations.gov, or by proposed critical habitat. appointment, during normal business We intend that any final action (9) Any probable economic, national hours, at the U.S. Fish and Wildlife resulting from this proposed rule will be security, or other relevant impacts of Service, Arizona Ecological Services based on the best scientific and designating any area that may be Field Office (see FOR FURTHER commercial data available and be as included in the final designation; in INFORMATION CONTACT). accurate and as effective as possible. particular, we seek information on any Previous Federal Actions Therefore, we request comments or impacts on small entities or families, information from other concerned and the benefits of including or The Gierisch mallow was included in governmental agencies, Native excluding areas that exhibit these the June 25, 2007, petition by WildEarth American tribes, the scientific impacts. Guardians to the Service seeking the community, industry, or any other (10) Whether any specific areas we are listing of 475 species in the interested parties concerning this proposing for critical habitat southwestern United States. Based on proposed rule. We particularly seek designation should be considered for information we received in that petition comments concerning: exclusion under section 4(b)(2) of the and information readily available in the (1) Biological, commercial trade, or Act, and whether the benefits of Service’s files, the Service added other relevant data concerning any potentially excluding any specific area Gierisch mallow as a candidate for threats (or lack thereof) to this species outweigh the benefits of including that listing in the December 10, 2008, and regulations that may be addressing area under section 4(b)(2) of the Act, in Candidate Notice of Review (73 FR those threats. particular for those areas that are 75176). Species on the candidate list are (2) Additional information concerning currently being mined for gypsum or those fish, wildlife, and plants for the historical and current status, range, proposed to be mined for gypsum in the which we have sufficient information distribution, and population size of this foreseeable future. on biological vulnerability and threats species, including the locations of any (11) Whether we could improve or to support the preparation of a listing additional populations of this species. modify our approach to designating proposal, but for which development of (3) Any information on the biological critical habitat in any way to provide for a listing regulation is precluded by other or ecological requirements of the species greater public participation and higher listing priorities. Since 2008, the and ongoing conservation measures for understanding, or to better listing priority number for Gierisch the species and its habitat. accommodate public concerns and mallow has been a 2, indicating a (4) Current or planned activities in the comments. species with threats that are both areas occupied by the species and Please note that submissions merely imminent and high in magnitude in possible impacts of these activities on stating support for or opposition to the accordance with our priority guidance this species. action under consideration without published on September 21, 1983 (48 FR

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43098). Gierisch mallow has remained a discrimination of the related and similar which seeds germinate are not known. candidate in subsequent Candidate taxa known to occur in southern Utah Although we do not know how the Notices of Reviews (74 FR 57804, and adjacent northern Arizona, thus species is pollinated, other species of November 9, 2009; 75 FR 69222, making Gierisch mallow a species and, the genus Sphaeralcea (globemallows) November 10, 2010; 76 FR 66370, therefore, a listable entity under the Act. are pollinated by Diadasia diminuta October 26, 2011). The work was published in the peer- (globemallow bee), which specializes in reviewed journal Novon, which pollinating plants of this genus. Background publishes short articles with the Globemallow bees are considered It is our intent to discuss below only primary purpose of the establishment of important pollinators for globemallows those topics directly relevant to the nomenclature (scientific naming) of (Tepedino 2010, p. 2). These solitary proposed listing of the Gierisch mallow vascular plants. Dr. Atwood and Dr. bees, as well as other Diadasia species, as endangered and the proposed critical Welsh are very familiar with the flora of are known to occur within the range of habitat designation. Utah; Dr. Atwood is the Collections the Gierisch mallow (Sipes and Species Information Manager of the S. L. Welsh Herbarium, Tepedino 2005, pp. 490–491; Sipes and and Dr. Welsh is Emeritus Curator of Wolf 2001, pp. 146–147), so it is Gierisch mallow is a perennial, Vascular Plants at Brigham Young reasonable to assume that they are flowering member of the mallow family. University, Utah. After careful review of potential pollinators of Gierisch mallow It produces few to many stems from a the 2002 Atwood and Welsh publication and other associated vegetation in the woody caudex (short, thickened, woody and its recognition by the Integrated surrounding community. Winter rainfall stem that is usually subterranean or at Taxonomic Information System (ITIS in 2008 produced many seedlings of ground level). The stems are 43 to 103 2012) and its inclusion in the Utah Rare Gierisch mallow, indicating that they centimeters (cm) (17 to 41 inches (in)) Plant Guide (Utah Rare Plants 2012), it grow from seeds stored in the seed bank tall, and are often dark red-purple. The is our conclusion that Gierisch mallow (Hughes 2009, p. 13). Higher densities of foliage is bright green and glabrous (not is a valid species because the seedlings were located within known hairy). The leaf blades are 1.2 to 4 characteristics described above can be locations in Arizona and Utah after centimeters (cm) (0.47 to 1.57 inches used to distinguish this species from these winter rain events. Additionally, (in)) long; 1 to 5 cm (0.4 to 1.9 in) wide; similar species. We also consider it a young plants have been observed on two and usually longer than wide. The separate species due to its acceptance in reclaimed areas within an active leaves are usually flat and egg-shaped; peer-reviewed literature and recognition gypsum mine (Service 2008a, p. 1), the leaf base is heart-shaped to truncate, by taxonomic authorities, as described further indicating that seeds are stored with 3 to 5 lobes. The inflorescence is above. in the seed bank; however, we do not compound, with more than one flower know the long-term viability of these Biology, Habitat, and the Current Range per node. The outer envelope of the plants due to the disruption of the flower is 0.5 to 1.0 cm (0.2 to 0.4 in) Gierisch mallow is only found on original soil composition. Furthermore, long, green, and uniformly glabrous, and gypsum outcrops associated with the Hughes (2011, p. 7) has documented a the orange petals are 1.5 to 2.5 cm (0.6 Harrisburg Member of the Kaibab decline in the numbers of plants in both to 0.98 in) long (Atwood and Welsh Formation in northern Mohave County, of the two reclaimed areas over the last 2002, p. 161). Arizona, and adjacent Washington 5 years. Gierisch mallow was named as a County, Utah (Atwood and Welsh 2002, We have no information on the unique, distinct species in 2002 p. 161). The Harrisburg Member is the historical range of this species because (Atwood and Welsh 2002, p. 159). This most recent (topmost) exposed geologic it is a newly discovered plant. species of mallow is distinguished from layer of the Kaibab Formation. The Currently, there are 18 known similar species, such as Sphaeralcea Harrisburg Member is known for its populations of the Gierisch mallow rusbyi (Rusby’s globemallow), by the soils containing high levels of gypsum restricted to less than approximately glabrous (smooth) foliage, few or no (gypsiferous soils) (Biek and Hayden 186 ha (460 ac) in Arizona and Utah. stellate (star-shaped) hairs restricted to 2007, p. 58). The Kaibab Formation The main populations in Arizona are the leaf margins, larger flowers, and comprises a continuous layer of exposed located south of the Black Knolls, restricted range and habitat. limestone rock in the Grand Canyon approximately 19.3 km (12 mi) Another closely related species is S. region (USGS 2012, p. 1). The southwest of St. George, Utah, with the moorei (Moore’s globemallow); surrounding plant community is warm southernmost population of this group distinguishing characters are the 3 to 5- desertscrub (Mojave desertscrub). Very being on the edge of Black Rock Gulch parted narrow lobes, bright green leaves, little is known about the life history of near Mokaac Mountain. There is another and different habitat. As discussed by the Gierisch mallow, as it was only population approximately 4.8 Atwood and Welsh (2002, p. 159), the recently described. The species may be kilometers (km) (3 miles (mi)) north of genus Sphaeralcea consists of taxa perennial because it is woody at the the Black Knolls, on Arizona State Land whose morphological distinctions are base and the same individuals have Department (ASLD) lands near the compromised by overlap of many been observed for more than one year. Arizona/Utah State line. The Utah characters. The characteristics of the It dies back to the ground during the population is located on BLM lands mature fruiting carpels (seed-bearing winter and re-sprouts from the base within 3.2 km (2 mi) of the Arizona/ structures) are one of the more during late winter and spring (January Utah State line, near the Arizona important distinguishing characters, but to March), depending on daytime population on ASLD land. specimens were rarely collected with temperatures and rainfall. Information There are no other known populations mature carpels. Atwood and Welsh from the Bureau of Land Management of the Gierisch mallow. We theorized (2002, pp. 161–163) collected (BLM) indicates that many of the that, because gypsum outcrops globemallow species in northern Gierisch mallow populations occur on associated with the Harrisburg Member Arizona and southern Utah, and hillsides or steep slopes. The are scattered throughout BLM lands in reviewed previous collections. The pollination system (self-pollinated or northern Arizona and southern Utah, characteristics described in their 2002 obligate out-crosser), seed dispersal additional populations may exist. Dr. taxonomic key allow for the mechanisms, and the conditions under Atwood and Dr. Welsh conducted

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extensive surveys in these areas because population size of the Gierisch mallow surveyed in Arizona. Hughes (2012, pp. numerous other rare plant species are from four of the Arizona locations. 12–14) established belt transects on four associated with these landforms These populations are referred to as of the ‘‘Hills’’ (Hills 1, 2, 4, and 5) and (Atwood 2008, p. 1). One record of a ‘‘Hills.’’ There are a total of 18 began to count the number of Gierisch mallow from the Grand populations rangewide, with seventeen individuals. There is a population on Canyon-Parashant National Monument populations on lands managed by the Hill 3, but there are no estimates for it. was presented to us (Fertig 2012, p. 3); BLM, and 1 on lands managed by the Data in Table 1 are from files in BLM’s however, after careful scrutiny, Johnson ASLD. Seventeen populations occur in St. George Field Office and the Service’s and Atwood (2012, p. 1) determined Arizona, and one occurs in Utah. Arizona Ecological Services Field that this record is actually Rusby’s Office. The actual transect counts mallow and not Gierisch mallow. Atwood and Hughes’ population estimates were simple visual estimates appear in Table 1 in bold, in Status and Population Estimates and have only been conducted for four parentheses. Surveys estimate total Atwood (2008, p. 1), and later Hughes of the 17 populations. These estimates population size to be between 7,000 and (Service 2008a, p. 1), estimated the are presented in Table 1 for the areas 12,000 individuals in Arizona.

TABLE 1—POPULATION NUMBERS FOR GIERISCH MALLOW FROM FOUR LOCATIONS IN ARIZONA

Site Numbers 2001 Numbers 2003 Numbers 2007 Numbers 2008 Numbers 2009 Numbers 2010 Numbers 2011

Hill 1 (BLM) ...... 150+ (100) ...... 50 (30) ...... (58) ...... No data ...... 300 (155) ...... 200 (85) ...... * Hill 2 (BLM) ...... 150+ (100) ...... 40 (31) ...... (15) ...... 50 (37) ...... 40 (23) ...... No data ...... * Hill 4 (BLM) ...... No data ...... 5,000–9,000 (176) ...... (65) ...... No estimate No estimate No estimate (180). (108). (170). (136) Hill 5 (ASLD) ...... No data ...... 2,000–3,000 No data ...... No data ...... No data ...... No data ...... No data (115). * These sites were visited in 2011, and Gierisch mallow plants were observed; however, no data were collected.

Total population size in Utah was numbers at these reclaimed areas. A. The Present or Threatened estimated to be approximately 200 Because the Gierisch mallow it mostly Destruction, Modification, or individuals in 2005 (Franklin 2007, p. only found in gypsiferous soils, it is Curtailment of Its Habitat or Range 1). In spring 2008 and 2009, Hughes possible that they are declining due to (2008a, p. 12; Hughes 2009, p. 15) disruption of the original soil Because the Gierisch mallow has a conducted more extensive surveys of composition in these reclaimed soils. limited range and distribution, gypsiferous soils in Utah and estimated Outside of the reclaimed areas, some including being found in a specific soil composition (gypsum outcrops), it is the population to be between 5,000 and populations of the Gierisch mallow highly susceptible to habitat destruction 8,000 individuals. The Service plant appear to be fluctuating annually and modification. Specifically, habitat ecologist and staff from the BLM’s according to data provided by Hughes destruction or modification resulting Arizona Strip Field Office visited all of (2011, pp. 4–7). Some populations from mining operations, recreational the known locations in February 2008 appear to be decreasing, others have activities, and wildfires associated with (Service 2008a, p. 1). Population shown slight increases, and some estimates were not made at this time the spread of nonnative grass species, populations have remained stable are threats to the Gierisch mallow. because the plants were just emerging (Hughes 2011, pp. 4–7). from winter dormancy, but there were Mining plants present at all of the known Summary of Factors Affecting the locations visited. Species Gypsum mining is an ongoing source of habitat modification for the Gierisch Since surveys began, no new Section 4 of the Act (16 U.S.C. 1533), populations have been found outside of mallow in Arizona. Gypsum is used in and its implementing regulations at 50 the known areas. In addition to the construction (including the CFR part 424, set forth the procedures information provided in Table 1, manufacturing of drywall), and for a for adding species to the Federal Lists Hughes (2008a, p. 12) reported counts variety of agricultural purposes. for transects on two rehabilitated sites of Endangered and Threatened Wildlife Gypsum deposits are found at various within the Western Mining and and Plants. Under section 4(a)(1) of the depths within the Harrisburg Member. Minerals, Inc., gypsum operation on and Act, we may list a species based on any Many of the most valuable gypsum near Hill 4, where 85 and 60 plants were of the following five factors: (A) The deposits are not at ground level. This counted on the two transects in 2008. present or threatened destruction, means that surface materials need to be These plants are reestablishing modification, or curtailment of its removed and stockpiled, while the themselves in the reclaimed areas from habitat or range; (B) overutilization for subsurface gypsum is mined. The the original seed bank. Hughes (2009, p. commercial, recreational, scientific, or stockpiled surface material is then used 14) counted 50 and 32 plants on these educational purposes; (C) disease or to reclaim the area after the gypsum has sites in 2009. In 2011, Hughes (2012, p. predation; (D) the inadequacy of been removed. Because all the topsoil is 7) completed transect surveys on the existing regulatory mechanisms; and (E) temporarily removed, gypsum mining same reclaimed sites as he did in 2008 other natural or manmade factors temporarily removes the plant’s habitat and 2009, and counted 67 plants on one affecting its continued existence. Listing and any plants growing in the affected rehabilitated site and 1 plant on the actions may be warranted based on any area. Although the topsoil is replaced, other rehabilitated site. We do not have of the above threat factors, singly or in the original soil composition is altered; any information to indicate why there combination. Each of these factors is therefore, the reclaimed soils do not was a substantial decrease in plant discussed below. contain the original gypsum

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composition with which the plants are not mined anything, due to the slowing mining activities resume at the Georgia- associated. of the economy. The surface-modifying Pacific mine on lands managed by the There is an existing gypsum mining activity observed in February 2008 was ASLD. Although Hills 4 and 5 comprise operation (Black Rock Gypsum Mine) on likely a result of moving topsoil in only 2 of the 18 populations, over half BLM land affecting the Hill 4 preparation to begin mining activities of all the known Gierisch mallow plants population, the largest population in (Dixon 2011, p. 1). Because the lease is are in these two areas. That would leave Arizona (Hughes 2009, p. 13). The for 20 years, we expect that mining the other Arizona locations and the one plants in the Hill 4 area are not operations will begin at some point Utah population, and those areas restricted to one hill, but are scattered within the next 14 years, or when the support fewer plants. The loss of among several smaller hills that all housing market improves. We presume suitable habitat at Hills 4 and 5 has contain gypsum outcrops. One of the that habitat for the species would be resulted in the loss of more than 50 larger deposits is currently being mined. affected by the operation because the percent of the existing populations. The A large amount of soil has been technique for gypsum mining Service believes this would result in a removed, but we cannot quantify how necessarily involves removal of the compromise to the long-term viability of much of the habitat this comprises at topsoil, eliminating, at least the species, due to reduced reproductive this site, as we do not have access to temporarily, the species’ ability to potential and fragmentation. The ASLD lands. Based on prior monitoring survive there. There are no known limited distribution of this species, the before access was limited (Hughes 2008, protection measures for Gierisch mallow small number of populations, the p. 13), there are other small hills within or its habitat within the lease on State limited amount of habitat, and the the footprint of the mining claim that trust lands. species’ occurrence only in areas that support the Gierisch mallow; therefore, In addition to the Georgia-Pacific support high-quality gypsum deposits we assume the Gierisch mallow mine, there are several ASLD-issued lead us to conclude that mining is a occupied the disturbed area. Western exploration permits in the area on ASLD significant threat to the species. Mining and Minerals, Inc., the mine lands surrounding Hill 5. These are all operator, has inquired about expanding relatively new claims, and no significant Grazing the current operation (Service 2008a, p. work has been done on them, yet some In general, grazing practices can 1). The area they propose to expand into drilling was completed, but no other change vegetation composition and currently supports the largest portion of exploration or mining work has abundance, cause soil erosion and the Hill 4 population, estimated to be occurred. With the depressed housing compaction, reduce water infiltration between 5,000 and 9,000 plants (Hughes market, the ASLD does not anticipate rates, and increase runoff (Klemmedson 2008, p. 14), which comprises almost any gypsum mining will occur until the 1956, p. 137; Ellison 1960, p. 24; Arndt half of the entire population rangewide housing market improves (Dixon 2011, and Rose 1966, p. 170; Gifford and and most of the population in Arizona. p. 1). Hawkins 1978, p. 305; Robinson and The proposed expansion would remove Gypsum mining is a threat to this Bolen 1989, p. 186; Waser and Price the entire population and its habitat on species and its habitat. The mining 1981, p. 407; Holechek et al. 1998, pp. Hill 4. An environmental assessment operation removes plants and habitat for 191–195, 216; and Loftin et al. 2000, pp. (under the National Environmental the duration of the mining activities, 57–58), leaving less water available for Policy Act 40, 42 U.S.C. 4321 et seq.) for and, post-mining, the reclaimed areas plant production (Dadkah and Gifford expansion of the quarrying activities may or may not be capable of 1980, p. 979). Fleischner (1994, pp. within the Black Rock Gypsum Mine supporting the plants. A few Gierisch 630–631) summarized the ecological has been completed, and the Mining mallows were seen on reclaimed areas impacts of grazing in three categories: Plan of Operation has been approved near Hill 4, but no information on the (1) Alteration of species composition of (BLM 2008a). Because the demand for density of plants before the disturbance communities, including decreases in gypsum has declined along with the exists. Plants continue to be observed in density and biomass of individual decrease in the housing market, mining two reclaimed areas near Hill 4; species, reduction of species richness, activity has not yet reached the however, the numbers are relatively low and changing community organization; expansion area (Cox 2011a, pers. (Hughes 2012, pp. 6–7). Furthermore, it (2) disruption of ecosystem functioning, comm.). Recent discussions with the is unknown if restored areas will including interference in nutrient BLM indicate that the expansion could support the plants sufficiently to restore cycling and ecological succession; and happen as soon as 3 years from now or populations to pre-mining levels; (3) alteration of ecosystem structure, may take up to 10 years, depending on restoration efforts with this species are including changing vegetation the housing market, but BLM believes currently being planned within the stratification, contributing to soil the expansion is very likely to happen Black Rock Mine to assess the feasibility erosion, and decreasing availability of (Cox 2011a, pers. comm.). of seeding reclaimed areas with Gierisch water to biotic communities. There is another gypsum mine, mallow (Service 2008b, p. 1). Grazing occurs in most populations of located near Hill 5, supporting another We conclude that the ongoing and the Gierisch mallow in Arizona and large Arizona population future gypsum mining activities, as Utah on both BLM and ASLD lands. (approximately 2,000–3,000 plants). authorized by the BLM and the ASLD, Grazing is excluded from both the Black This mine, operated by Georgia-Pacific, are a significant threat to this species. Rock Gypsum Mine on BLM land and is on ASLD lands and encompasses 178 Although there has been no mining the Georgia-Pacific Mine on ASLD land. ha (440 ac). Service biologists did not activity on ASLD lands since 2007, the Gierisch mallow populations occur on receive permission to enter the site in Service believes this inactivity is three BLM grazing allotments in February 2008, but, through the site temporary and that mining will resume Arizona and one allotment in Utah. In boundary fence, did notice at least one when the housing market improves in Arizona, the Black Rock, Lambing- pile of spoils near the population, the future. There will be a significant Starvation, and Purgatory allotments all indicating some recent surface- reduction in the number of individuals contain populations of Gierisch mallow. modifying activity prior to the Service of the species when the Western Mining The Black Rock Allotment encompasses biologists’ visit. The lease was first and Minerals Inc., operation (Black 15,250 ha (37,685 ac) that are grazed issued in 2006, but Georgia-Pacific has Rock Gypsum Mine) expands, and when year-round, but this allotment is on a

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deferred grazing system, which means and its habitat. The Curly Hollow sparsely vegetated soils. Carbon that pasture use is rotated so that each Allotment is comprised of contributed by these organisms helps pasture receives a set amount of rest approximately 9,105 ha (22,500 ac) of keep plant interspaces fertile and aids in (non-use) every year. As previously BLM land and 2,226 ha (5,500 ac) of supporting other microbial populations stated, there are an additional 1,152 ha Utah State trust land. This is a four- (Beymer and Klopatek 1991 in Floyd et (2,846 ac) in this allotment that are pasture allotment that is managed for al. 2003, p. 1704). In desert shrub and unavailable for grazing because of the intensive grazing and a rest rotation grassland communities that support few Black Rock Gypsum Mine. Gierisch system similar to those described above. nitrogen-fixing plants, biotic crusts can mallow occurs in both the ‘‘Lizard 1’’ Gierisch mallow only occurs in the be the dominant source of nitrogen and ‘‘Lizard 2’’ pastures within this River Pasture, which is usually grazed (Rychert et al. 1978 and others in Floyd allotment, and both pastures are from November 1 through February 28 et al. 2003, p. 1704). Additionally, soil typically used in the spring to allow the of each season. Recent wildfires had crusts stabilize soils, help to retain livestock to utilize cheatgrass when it is burned much of the upper three moisture, and provide seed-germination still green. These two pastures are pastures; therefore, the River Pasture sites. Soil crusts are effective in typically rotated, that is used every has been grazed beyond February 28 for capturing wind-borne dust deposits, and other year so that one pasture receives several years to alleviate pressure on the have been documented contributing to a a full year of rest. three upper pastures while the 2- to 13-fold increase in nutrients in The Lambing-Starvation Allotment vegetation recovered from the wildfire southeastern Utah (Reynolds et al. 2001 encompasses 5,446 ha (13,457 ac) that in the absence of livestock grazing in Floyd et al. 2003, p. 1704). The are grazed from November 16 through (Douglas 2012a, p. 1). The three upper presence of soil crusts generally May 15 every season and is also on a pastures are now considered increases the amount and depth of deferred system. Gierisch mallow occurs rehabilitated, and grazing in the River rainfall infiltration (Loope and Gifford in two of the three pastures in this Pasture should resume with its normal 1972 and others in Floyd et al. 2003, p. allotment, the North Freeway and South season of use from November 1 through 1704). Freeway pastures. These two pastures February 28. The general condition of In addition to loss of soil crusts, are also used in the spring, as the third the range in the River Pasture is fair to grazing often leads to soil compaction, pasture is along the Virgin River and good (moderate cheatgrass spread); which reduces water infiltration and contains critical habitat for the however, portions near Sun River, and can lead to elevated soil temperatures endangered southwestern willow the Astragalus holmgreniorum (Fleischner 1994, p. 634; Floyd et al. flycatcher (Empidonax traillii extimus). (Holmgren milkvetch) (an endangered 2003, p. 1704). All of these soil Because the third pasture contains plant) habitat, have been disturbed in disturbances can increase erosion by critical habitat for the southwestern the past, resulting in a more significant both wind and water (Neff et al. 2005, willow flycatcher, its use is restricted spread of cheatgrass and Malcolmia p. 87). Because Gierisch mallow only seasonally, causing livestock to spend africana (African mustard). Livestock occurs in gypsum soil outcrops, this loss more time in the two pastures utilization on Gierisch mallow has not of soil crust, increased soil compaction, containing Gierisch mallow, including been monitored by BLM’s St. George and potential increase in erosion may during the spring growing season for the Field Office, but conditions are lead to reduced fitness of individual Gierisch mallow. The Lambing- expected to be similar to livestock plants as nutrients decrease when Starvation Allotment also contains utilization described above in Arizona livestock enter and concentrate in these ASLD lands with a grazing lease; (Douglas 2012a, p. 1). areas during dry years. Additionally, it however, the BLM oversees the In addition to consumption, livestock is possible that individual plants, management of this allotment. The are known to trample plants. As noted, especially seedlings, are not able to take Purgatory Allotment encompasses 1,985 livestock do not typically go up into root in any unstable soils that result ha (4,905 ac) in a single pasture that is Gierisch mallow habitat on the BLM from loss of soil crusts due to livestock grazed from December 1 through May 31 allotments in Arizona and Utah due to grazing. Increased erosion and every season. Only a small portion of a the steeper hillsides and slopes that this decreased water infiltration from loss of Gierisch mallow population occurs plant is known to inhabit (Roaque soil crusts can lead to depletion of within this allotment. Information from 2012a, p. 2; Douglas 2012a, p. 1). Given gypsum and other specific soil features the BLM indicates that many of the the grazing management described that the Gierisch mallow requires. These Gierisch mallow populations occur on above and the observations of how effects may be significant to Gierisch hillsides or steep slopes, and livestock infrequently livestock are in Gierisch mallow populations because grazing do not typically go up to these areas mallow habitat, trampling of plants does occurs at some level throughout all looking for forage unless it is a dry year not likely significantly impact the populations. Reduced fitness of (Roaque 2012a, p. 2). All three overall viability of these populations. individual plants may lead to reduced allotments contain significant amounts Habitat degradation in the Mojave overall reproduction, which may lead to of nonnative, invasive annual grasses, Desert, through loss of microbiotic soil decreases in the overall population. including cheatgrass and red brome, crusts (soils containing algae, lichen, Grazing can also lead to changes in although red brome appears to be more fungi, etc.) due to livestock grazing, is vegetation structure, including the prevalent. According to observations by a great concern (Floyd et al. 2003, p. proliferation of nonnative, invasive BLM range personnel, both cheatgrass 1704). Grazing can disturb soil crusts species such as cheatgrass and red and red brome tend to not grow well in and other fundamental physical factors brome. Livestock have been implicated gypsum outcrops in normal (dry) in landscapes. For example, in the spread of weeds (Brooks 2009, p. rainfall years; however, they can be climatologists and ecologists have 105), and both abundance and diversity abundant in Gierisch mallow habitat attributed increasing soil surface of native plants and animals is lower in during wet years. This was observed temperatures and surface reflectivity in grazed areas as compared to ungrazed after the fall 2010 and winter 2011 rains the Sonoran Desert to grazing-related habitat in the Mojave Desert (Brooks (Roaque 2102b, p. 1). land degradation (Balling et al. 1998 in 2000, p. 105). We do not know the In Utah, grazing occurs in the one Floyd et al. 2003, p. 1704). Biological current density of these two nonnative allotment that contains Gierisch mallow soil crusts provide fixed carbon on grass species within the Gierisch

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mallow populations; however, we do forage on the steeper hillsides and these areas and associated unauthorized know that both of these nonnative slopes. When livestock do enter trails proliferate, this population may species are prevalent throughout the Gierisch mallow habitat, some limited experience an overall reduction in Mojave Desert in northwest Arizona and soil disturbance may occur, and fitness for the Gierisch mallow. southwest Utah, including throughout individual plants may be affected, In addition to the direct effects to all three allotments in Arizona and the although we do not anticipate vegetation, unauthorized OHV use can allotment in Utah (Roaque 2012a, pp. 1– population-level effects to the Gierisch have the same indirect effects that were 2; Douglas 2012, p. 1). While cheatgrass mallow. Livestock have been implicated previously described by livestock and red brome appear not to favor as a mechanism for the spread of grazing, including soil compaction, loss gypsiferous soils under normal (dry) cheatgrass and red brome. Although we of soil crusts, erosion, and the conditions, they can be abundant in do not know the extent to which promotion and spread of nonnative Gierisch mallow habitat during wet livestock spread these two nonnative invasive species. Refer to the livestock years, as was recently observed (Roaque grasses, the spread of these grasses does grazing discussion above for a complete 2102b, p. 1). Red brome has also been pose a threat to the Gierisch mallow. description of the effects to soil documented in similar gypsiferous soils Because of these potential effects from composition and how those effects near Gierisch mallow populations after livestock grazing, we anticipate grazing impact Gierisch mallow and its habitat. wet years (Roth 2012, entire). The to be a moderate threat to the species, In summary, we consider continued proliferation of cheatgrass and red especially during drought years. unauthorized OHV use (off of brome can lead to competition with designated roads) to be a potential threat Recreation Activities Gierisch mallow for both water and to this species and its habitat in Utah. nutrients, which can lead to decreased Mining operations in Utah do not Continued unauthorized OHV use can reproduction and fitness in individual pose a threat to Gierisch mallow have a significant effect on the long- plants. population at this time, but there is term viability of the Utah population of In addition to decreased reproduction evidence of off-road vehicle (OHV) the Gierisch mallow because habitat and fitness in established plants, the activity in the area. Several of the degradation can be severe enough to spread of these two species can also smaller hills were criss-crossed with prevent reestablishment of new plants, make the habitat less suitable for OHV tracks (Service 2008, p. 1), and as well as removing mature, establishment of new plants. If these areas are closed to OHV use off of reproducing plants from the population. cheatgrass and red brome reach high designated roads and trails (Douglas As stated above, Hughes (2009, p. 14) densities throughout all of the Gierisch 2012b, p. 1); therefore, this is estimated this population to be between mallow populations, this can lead to a considered unauthorized OHV use. 5,000 and 8,000 individuals in 2009. significant reduction in the proper Washington County is projected to be While this is only one of 18 known functioning of the habitat, which in turn one of the fastest growing counties in populations, this is the second largest would lead to a reduction in fitness and Utah, with a growth rate of 3.9 percent. population of the plant and this reproduction population-wide and an The population of St. George has grown population includes almost half of the overall population decline. Given the from 64,201 (2005) to 88,001 (2010), and total population, rangewide. This limited distribution of Gierisch mallow is expected to increase to 136,376 by population is important to the long-term and the known abundance of cheatgrass 2020 (St. George Area Chamber 2010, viability of the species. Given that this and red brome in its habitat, continued pp. 2–3). The surrounding open spaces large population only encompasses 1.01 proliferation of these two species into around St. George are popular for OHV ha (2.5 ac) and is easily accessible, these Gierisch mallow habitat is likely to have use because of the relatively flat terrain activities may lead to enough Gierisch significant effects to the species and its and ease of access. mallow plants being crushed to reduce habitat. The number of populations may Vollmer et al. (1976, p. 121) the overall fitness of the population. be reduced and their current limited demonstrated that shrubs exposed to Therefore, we conclude that this activity distribution may become even more repeated driving (continued use of the is a moderate threat to the species. same tracks) were severely damaged. limited. Additionally, the overall Other Human Effects resiliency of the species may be Both live and dead stems were broken significantly reduced, especially if the and pressed to the ground. Stems still The same areas in Utah that are spread of these nonnative grasses leads standing exhibited broken twigs or subjected to unauthorized OHV use are to other stochastic events, such as shoots and leaves were dislodged. also used for target shooting and trash wildfire. Although grazing can help Damage to about 30 percent of all shrubs dumping. Evidence of both of these promote the spread of nonnative weeds examined in tire tracks were scored at activities was present in Utah during the such as cheatgrass and red brome, and 100 percent damage. Vollmer et al. February 2008 visit. There was one large their spread is a threat to the Gierisch (1976, p. 121) go on to state that appliance dumped near the population, mallow and its habitat, we do not know approximately 54 percent of the shrubs obviously used for target practice how much livestock contribute to their in the tracks sustained 90 percent or (Service 2008a, p. 1). People engaging in spread. The threat of wildfire resulting greater damage. The numbers of annual target shooting near the population from the spread of nonnative species shrubs growing in regularly driven ruts degrade habitat by trampling the soil will be discussed in more detail in were lower than in other areas (Vollmer and plants, and by driving vehicles on ‘‘Nonnative, Invasive Species’’ below. et al. 1976, p. 124). These data indicate the habitat to access areas for target In summary, livestock grazing can that individual Gierisch mallow plants shooting. The unauthorized use of BLM have many effects on the plant and its may be susceptible to the effects of OHV lands for these activities can contribute habitat, and on desert ecosystems in use in this area. Plants may be damaged to the degradation of habitat for the general, particularly on soils. However, to the point that they are no longer Gierisch mallow by causing the same livestock do not typically spend much viable and able to produce seed. direct and indirect effects described time in Gierisch mallow habitat, due to Seedlings may not be able to reach above for OHV use. It is also possible the steeper hillsides and slopes that this maturity and reproduce if they are that trash dumping can lead to soil plant inhabits, unless drought crushed to point of significant damage. contamination, which would most conditions cause livestock to search for As unauthorized OHV use increases in likely not be beneficial to the species.

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The full extent of damage to soils may likely to increase due to climate change In the absence of cheatgrass and red not be evident until years or even (see ‘‘Climate Change and Drought’’ brome, the Gierisch mallow grows in decades after the original disturbance discussion, below, under Factor E) sparsely vegetated communities (Vollmer et al. 1976, p. 115). We did not because invasive annuals increase unlikely to carry fires (see Biology, observe these activities near the Arizona biomass and seed production at elevated Habitat, and the Current Range section). populations. Similar to the effects of levels of carbon dioxide (Mayeux et al. Thus, this species is unlikely to be unauthorized OHV use, we consider 1994, p. 98; Smith et al. 2000, pp. 80– adapted to survive high frequency fires. illegal trash dumping and impacts 81; Ziska et al. 2005, p. 1328). As described in the Biology, Habitat, associated with target shooting to be Although cheatgrass and red brome and the Current Range section, the total moderate threats to this species and its both occur in close proximity to range of this species covers habitat in Utah. Gierisch mallow habitat, red brome is approximately 186 ha (460 ac), and each more prevalent (Roaque 2012b, p. 1). As of the 18 populations occupies a Nonnative, Invasive Species previously described above, both relatively small area, ranging between The spread of nonnative, invasive cheatgrass and red brome tend to not 0.003 ha (0.01 ac) and 38.12 ha (94.36 species is considered the second largest grow well in gypsum outcrops in ac). A range fire could easily impact or threat to imperiled plants in the United normal (dry) rainfall years; however, eliminate one or all populations and States (Wilcove et al. 1998, p. 608). they can be abundant in the Gierisch degrade Gierisch mallow habitat to the Invasive plants—specifically exotic mallow habitat during wet years. Red point that it will no longer be suitable annuals—negatively affect native brome has also been documented in for the plant. The loss of one population vegetation, including rare plants. One of similar gypsiferous soils near the and associated suitable habitat would be the most substantial effects is the Gierisch mallow populations after wet a significant loss to the species. change in vegetation fuel properties years (Roth 2012, entire). As we stated Therefore, the potential expansion of that, in turn, alter fire frequency, above, we do not anticipate a high invasive species and associated increase intensity, extent, type, and seasonality degree of surface disturbances in the in fire frequency and intensity is a (Menakis et al. 2003, pp. 282–283; Gierisch mallow habitats in the near significant threat to the species, Brooks et al. 2004, p. 677; McKenzie et future from livestock grazing except especially when considering the limited al. 2004, p. 898). Shortened fire return during drought years; however, distribution of the species and the high intervals make it difficult for native increased mining in Arizona and potential of the Gierisch mallow plants to reestablish or compete with unauthorized OHV use, target shooting, population extinctions. invasive plants (D’Antonio and Vitousek and trash dumping in the Utah In summary, we know that invasive 1992, p. 73). population of the Gierisch mallow may species can impact plant communities Invasive plants can exclude native lead to significant amounts of surface by increasing fire frequencies, plants and alter pollinator behaviors disturbance, providing conditions that outcompeting native species, and (D’Antonio and Vitousek 1992, pp. 74– allow red brome to expand into and altering pollinator behaviors. Although 75; DiTomaso 2000, p. 257; Mooney and increase in density within Gierisch invasive species do not occur in high Cleland 2001, p. 5449; Levine et mallow habitat. densities in Gierisch mallow habitat al.2003, p. 776; Traveset and Invasions of annual, nonnative during normal (dry) rainfall years, Richardson 2006, pp. 211–213). For species, such as cheatgrass, are well nonnative, invasive species, especially example, cheatgrass and red brome documented to contribute to increased red brome, can be very abundant in wet outcompete native species for soil fire frequencies (Brooks and Pyke 2002, rainfall years. Given the ubiquitous nutrients and water (Melgoza et al. p. 5; Grace et al. 2002, p. 43; Brooks et nature of cheatgrass and red brome in 1990, pp. 9–10; Aguirre and Johnson al 2003, pp. 4, 13, 15). The disturbance the Intermountain West and their ability 1991, pp. 352–353; Brooks 2000, p. 92), caused by increased fire frequencies to rapidly invade dryland ecosystems as well as modify the activity of creates favorable conditions for (Mack 1981, p. 145; Mack and Pyke, pollinators by producing different increased invasion by cheatgrass. The 1983, p. 88; Thill et al. 1984, p. 10), we nectar from native species (Levine et al. end result is a downward spiral where expect these nonnative species to 2003, p. 776) or introducing nonnative an increase in invasive species results in increase in the future in response to pollinators (Traveset and Richardson more fires, more fires create more surface disturbances from increased 2006, pp. 208–209). Introduction of disturbances, and more disturbances mining activities, recreation activities, nonnative pollinators or production of lead to increased densities of invasive and global climate change (see ‘‘Climate different nectar can lead to disruption of species. The risk of fire is expected to Change and Drought’’ below). An normal pollinator interactions for the increase from 46 to 100 percent when increase in cheatgrass and red brome is Gierisch mallow. the cover of cheatgrass increases from expected to increase the frequency of Cheatgrass and red brome are 12 to 45 percent or more (Link et al. fires in Gierisch mallow habitat, and the particularly problematic nonnative, 2006, p. 116). The invasion of red species is unlikely to survive increased invasive annual grasses in the brome, another nonnative grass, into the wildfires due to its small population intermountain west. If already present Mojave Desert of the intermountain west sizes and the anticipated habitat in the vegetative community, cheatgrass poses similar threats to fire regimes, degradation. Therefore, we determine and red brome increase in abundance native plants, and other federally that nonnative, invasive species and after a wildfire, increasing the chance protected species (Brooks et al. 2004, associated wildfires constitute a for more frequent fires (D’Antonio and pp. 677–678). Brooks (1999, p. 16) also significant threat to habitat of the Vitousek 1992, pp. 74–75; Brooks 2000, found that high interspace biomass of Gierisch mallow. p. 92). In addition, cheatgrass invades red brome and cheatgrass resulted in areas in response to surface greater fire danger in the Mojave Desert. Summary of Factor A disturbances (Hobbs 1989, pp. 389, 393, Brooks (1999, p. 18) goes on to state that Based on our evaluation of the best 395, 398; Rejmanek 1989, pp. 381–383; the ecological effects of cheatgrass and available scientific information, we Hobbs and Huenneke 1992, pp. 324– red brome-driven fires are significant conclude that the present and future 325, 329, 330; Evans et al. 2001, p. because of their intensity and destruction and modification of the 1308). Cheatgrass and red brome are consumption of perennial shrubs. habitat for the Gierisch mallow is a

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significant threat. Destruction and and only the BLM offers a special plant is typically located and because modification of habitat for the Gierisch permit to collect seeds of candidate the herbivory that does occur is mostly mallow are anticipated to result in a species. Each respective land limited to drought years when the plant significant decrease in both the range of management agency referred the matter is not overly abundant. Although the species and the size of the to its law enforcement branches. herbivory is likely to continue to some population of the species. Because collection is restricted, and degree, especially during drought years, Mining activities impacted Gierisch collection permits are only issued for recruitment from the seed bank has been mallow habitat in the past and will scientific research or educational documented in recent years, indicating continue to be a threat in the future to purposes by the Arizona Department of that herbivory by livestock is not likely the species’ habitat throughout its range. Agriculture (Austin 2012, p. 1), we do to diminish the overall fitness and All of the populations and habitat are not expect collection to be a regular reproductive ability of the larger located on BLM and ASLD lands, which occurrence. See Factor D discussion, Gierisch mallow populations. Smaller have an extensive history of, and recent below, for a complete description of populations of the Gierisch mallow are successful exploration activities for, when permits are issued for collection likely to be more susceptible to the gypsum mining. Two of the eighteen of the Gierisch mallow. We are not effects of herbivory during drought populations are located in the aware of any other instances when the years. immediate vicinity of gypsum mining, Gierisch mallow has been collected We have no information that disease including the Black Rock Gypsum Mine from the wild other than as a voucher is affecting the plants. Therefore, based which has an approved Mining Plan of specimen (specimen collected for an on the best available information, we Operation to expand into the largest herbarium) (Atwood and Welsh 2002, p. conclude that disease is not a threat to Gierisch mallow population. Gypsum 161). Therefore, we conclude that the Gierisch mallow, and that predation mining is expected to continue and overutilization for commercial, (herbivory, along with some related expand in the near future (Cox 2011b, recreational, scientific, or educational trampling) is a moderate threat during p. 1; Dixon 2012, p. 1). Considering the purposes is not a threat to the Gierisch drought years. small area of occupied habitat mallow now, and we have no immediately adjacent to existing information to indicate that it will D. The Inadequacy of Existing gypsum mines, anticipated future become a threat in the future. Regulatory Mechanisms mining will result in the loss of habitat C. Disease or Predation Under this factor, we examine for these populations in the future, and whether existing regulatory mechanisms these two populations comprise more The flowering stalks of the Gierisch are inadequate to address or alleviate than 50 percent of the entire species’ mallow are eaten by livestock. All of the the threats to the species discussed distribution. Gierisch mallow populations on BLM Although livestock do not typically lands are within grazing allotments. under the other factors. Section eat Gierisch mallow, livestock grazing Herbivory has been documented by a 4(b)(1)(A) of the Act requires the Service can affect Gierisch mallow habitat more BLM ecologist (Service 2008a, p. 1), and to take into account ‘‘those efforts, if significantly during drought years, as Atwood (2008, p. 1). Hughes has found any, being made by any State or foreign livestock move into the Gierisch mallow that the mallow is eaten during drought nation, or any political subdivision of a habitat searching for forage. years, when other forage is reduced or State or foreign nation, to protect such Additionally, livestock have been unavailable. The plant is also grazed species * * *.’’ In relation to Factor D implicated in spreading nonnative, during non-drought times, but not as under the Act, we interpret this invasive species such as red brome and heavily. The Gierisch mallow plants language to require the Service to cheatgrass, although we do not know located near water sources (stock tanks consider relevant Federal, State, and the extent to which livestock contribute and drinkers) are also heavily browsed tribal laws, plans, regulations, and other to the spread of these two nonnative (Hughes 2008b, p. 1) because livestock such mechanisms that may minimize grasses. tend to congregate near sources of water. any of the threats we describe in threat Red brome and cheatgrass are When Atwood (2008, p. 1) was analyses under the other four factors, or documented to occur in all 18 surveying the populations to collect otherwise enhance conservation of the populations of the Gierisch mallow, fruit of the Gierisch mallow during species. We give strongest weight to although mostly after wet rain years. drought years, Atwood was unable to statutes and their implementing The threat of fire caused by annual locate any fruit because all of the regulations and to management nonnative species invasions is flowering stalks had been consumed by direction that stems from those laws and exacerbated by mining activities, livestock. The effect of sporadic grazing regulations. An example would be State livestock grazing, and recreation of plants is unknown, but persistent governmental actions enforced under a activities. Therefore, we conclude that grazing can reduce the reproductive State statute or constitution, or Federal Gierisch mallow and its habitat face output of the plants, potentially action under statute. significant threats as a result of habitat reducing the size of the smaller Having evaluated the significance of loss and modification. populations, especially during drought the threat as mitigated by any such years. As previously described under conservation efforts, we analyze under B. Overutilization for Commercial, Factor A, livestock do not typically Factor D the extent to which existing Recreational, Scientific, or Educational spend significant amounts of time in regulatory mechanisms are inadequate Purposes Gierisch mallow habitat, due to the to address the specific threats to the The Gierisch mallow is not typically hillsides and steep slopes that the species. Regulatory mechanisms, if they a plant of horticultural interest; Gierisch mallow typically inhabits, exist, may reduce or eliminate the however, we do have information although livestock will enter into impacts from one or more identified regarding possible seed collection from Gierisch mallow habitat during drought threats. In this section, we review wild plants on BLM and ASLD periods. existing State and Federal regulatory department lands for commercial sale Herbivory from livestock is not a mechanisms to determine whether they (Roth 2011, p. 1). Collection of seeds significant threat, because of the effectively reduce or remove threats to from both BLM and ASLD is prohibited, steepness of the terrain on which the the Gierisch mallow.

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State Regulations this regulatory mechanism is required seed collection of the Gierisch Over 90 percent of the species’ known insufficient to protect the Gierisch mallow by the mine operators to aid in habitat and over 50 percent of known mallow from threats to its habitat reestablishing the species in reclaimed populations are located on BLM and associated with mining on ASLD lands. areas of the Black Rock Gypsum Mine in the recently approved expansion of ASLD lands in Arizona mining claims. Federal Regulations There are no laws protecting the the Black Rock Gypsum Mine. Gierisch mallow’s habitat on State or Mining Activities on BLM Lands The BLM has required seed collection private lands in Arizona. This species is We have previously identified habitat as a result of these operations; however, currently protected by the Arizona loss associated with gypsum mining as we do not know if enough seeds can be Native Plant Act (ANPA). Since it a potential threat to the species. On collected to reestablish pre-mining became a candidate species in 2008, BLM-managed lands, this mining occurs population numbers in reclaimed areas. Arizona protects the Gierisch mallow as pursuant to the Mining Law of 1872 (30 We are unsure of the ability to ‘‘Highly Safeguarded.’’ Plants in the U.S.C. 21 et seq.), which was enacted to reestablish healthy populations in ‘‘Highly Safeguarded’’ category under promote exploration and development reclaimed areas because the number of the ANPA include ‘‘plants resident to of domestic mineral resources, as well plants observed growing from the seed this State and listed as endangered, as the settlement of the western United bank in reclaimed soils has decreased threatened, or category 1 in the Federal States. It permits U.S. Citizens and since they were first observed. endangered species act of 1973’’ (ANPA businesses to freely prospect hardrock Furthermore, we do not know the long- 1997, p. 4). The ANPA controls (locatable) minerals and, if a valuable term viability of these plants or any collecting, and limited scientific deposit is found, file a claim giving plants grown from collected seeds. collection of ‘‘Highly Safeguarded’’ them the right to use the land for mining Therefore, we find that the BLM Federal species is allowed for research and activities and sell the minerals regulatory measures are not adequate to educational purposes (Austin 2012, p. extracted, without having to pay the address the loss of habitat caused by 1), but the ANPA provides no protection Federal government any holding fees or gypsum mining. for plant habitat. Private landowners are royalties (GAO 1989, p. 2). Gypsum is E. Other Natural or Manmade Factors required to obtain a salvage permit to frequently mined as a locatable mineral, Affecting Its Continued Existence remove plants protected by the ANPA; and gypsum mining is, therefore, subject however, there are no known private to the Mining Law of 1872. The BLM Small Population Size lands containing the Gierisch mallow. implements the Mining Law through As previously described (see the Furthermore, seed collection on ASLD Federal regulations, 43 CFR part 3800. Biology, Habitat, and the Current Range lands is prohibited, as described above The operators of mining claims on section), the entire range of the Gierisch under Factor B, although there are no BLM lands must reclaim disturbed areas mallow is located in an area of less than ASLD regulations protecting habitat for (Cox 2012, p. 1). The BLM’s regulations 186 ha (460 ac) throughout Arizona and the Gierisch mallow. While the ANPA also require the mitigation of mining Utah. Within this range, each of the 18 may be effectively protecting the species operations so that operations do not individual populations’ habitat areas is from direct threats, it is not designed to cause unnecessary or undue degradation very small, ranging from 0.003 ha (0.01 protect the species’ habitat. of public lands. Unnecessary or undue ac) to 38.12 ha (94.36 ac). The Gierisch In addition to the Black Rock Gypsum degradation is generally referred to as mallow can be dominant in small areas Mine on BLM lands in Arizona, ‘‘harm to the environment that is either of suitable habitat, containing thousands discussed below, the Georgia-Pacific unnecessary to a given project or of individuals. However, the small areas Mine on ASLD Land is in close violates specified environmental of occupation and the narrow overall proximity to a large Gierisch mallow protection statutes’’ (USLegal, 2012, p. range of the species make it highly population. The ASLD has fairly strict 1). Furthermore, it is unclear what susceptible to stochastic events that may reclamation provisions and bonding specific activities would constitute lead to local extirpations. requirements when they approve a unnecessary or undue degradation in Mining, or a single random event such Mining Plan of Operation; however, any relation to the Gierisch mallow and its as a wildfire (see Factor A), could decision that the ASLD makes on habitat. extirpate an entire or substantial portion whether or not to lease land is based The Gierisch mallow is listed as a of a population given the small area of strictly on the benefit of the State Trust. BLM sensitive species in both Arizona occupied habitat. Species with limited The ASLD would not deny a mine, or and Utah. Sensitive species designation ranges and restricted habitat any other project, based on the presence on BLM lands is afforded through the requirements also are more vulnerable of an endangered or threatened species; Special Status Species Management to the effects of global climate change however, they can have stipulations Policy Manual #6840 (BLM 2008B, (see the ‘‘Climate Change and Drought’’ written into the ASLD lease or the entire) which states that on BLM- section below; IPCC 2002, p. 22; Jump mining company’s reclamation plan that administered lands, the BLM shall and Penuelas 2005, p. 1016; Maschinski would require them to make allowances manage Bureau sensitive species and et al. 2006, p. 226; Krause 2010, p. 79). for federally listed species (Dixon 2012, their habitats to minimize or eliminate Overall, we consider small population p. 1). With listed plants, these threats affecting the status of the size and restricted range intrinsic stipulations can include seed collection species, or to improve the condition of vulnerabilities to the Gierisch mallow or transplanting plants from the the species habitat (BLM 2008B, pp. 37– that may not rise to the level of a threat footprint of the mine; however, because 38). on its own. However, the small the Gierisch mallow is not currently The BLM’s regulations do not prevent population sizes and restricted range of listed, the ASLD does not currently have the Black Rock Gypsum Mine’s this species increase the risk of to include these stipulations in expansion into Gierisch mallow habitat, extinction to the Gierisch mallow reclamation plans. Because the ASLD but the BLM could require mitigation populations in conjunction with the does not have to require mitigation measures to prevent unnecessary or effects of global climate change (see stipulations to protect the Gierisch undue degradation from mining below) and the potential for stochastic mallow or its habitat, we conclude that operations. For example, the BLM extinction events such as mining and

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invasive species (Factor A). Therefore, factors, especially precipitation, plays a al. 2005, p. 1328) and will put we consider the small, localized decisive role in plant survival in arid additional stressors on rare plants population size to exacerbate the threats regions (Herbel et al. 1972, p. 1084). already suffering from the effects of of mining, invasive species, and climate As discussed above, the Gierisch elevated temperatures and drought. This change to the species. mallow has a limited distribution, and is important to note with regards to the populations are localized and small. In Climate Change and Drought Gierisch mallow because increases in addition, these populations are nonnative, invasive plants, including Our analyses under the Act include restricted to very specific soil types. increased seed production, are consideration of ongoing and projected Global climate change exacerbates the anticipated to increase both the changes in climate. The terms ‘‘climate’’ risk of extinction for species that are frequency and intensity of wildfires as and ‘‘climate change’’ are defined by the already vulnerable due to low described above in ‘‘Nonnative, Invasive Intergovernmental Panel on Climate population numbers and restricted Species.’’ Additionally, these additional Change (IPCC). ‘‘Climate’’ refers to the habitat requirements. Predicted changes stressors associated with increased mean and variability of different types in climatic conditions include increases carbon dioxide are likely to increase the of weather conditions over time, with 30 in temperature, decreases in rainfall, competition for resources between the years being a typical period for such and increases in atmospheric carbon Gierisch mallow and nonnative, measurements, although shorter or dioxide in the American Southwest invasive plant species. longer periods also may be used (IPCC (Walther et al. 2002, p. 389; IPCC 2007, 2007, p. 78). The term ‘‘climate change’’ p. 48; Karl et al. 2009, p. 129). Although The actual extent to which climate thus refers to a change in the mean or we have no information on how the change itself will impact the Gierisch variability of one or more measures of Gierisch mallow will respond to effects mallow is unclear, mostly because we climate (e.g., temperature or related to climate change, persistent or do not have long-term demographic precipitation) that persists for an prolonged drought conditions are likely information that would allow us to extended period, typically decades or to reduce the frequency and duration of predict the species’ responses to longer, whether the change is due to flowering and germination events, lower changes in environmental conditions, natural variability, human activity, or the recruitment of individual plants, including prolonged drought. Any both (IPCC 2007, p. 78). Various types compromise the viability of predictions at this point on how climate of changes in climate can have direct or populations, and impact pollinator change would affect this species would indirect effects on species. These effects availability as pollinators have been be speculative. However, as previously may be positive, neutral, or negative, documented to become locally extinct described, mining and recreation and they may change over time, during periods of drought (Tilman and activities are threats (see ‘‘Mining’’ and depending on the species and other El Haddi 1992, p. 263; Harrison 2001, p. ‘‘Recreation Activities’’ sections above), relevant considerations, such as the 64). The smallest change in which will likely result in the loss of effects of interactions of climate with environmental factors, especially large numbers of individuals and maybe other variables (e.g., habitat precipitation, plays a decisive role in even entire populations. Increased fragmentation) (IPCC 2007, pp. 8–14, plant survival in arid regions (Herbel et surface disturbances associated with 18–19). In our analyses, we use our al. 1972, p. 1084). mining and recreation activities also expert judgment to weigh relevant Drought conditions led to a noticeable will likely increase the extent and information, including uncertainty, in decline in survival, vigor, and densities of nonnative invasive species our consideration of various aspects of reproductive output of other rare and and with it the frequencies of fires (see climate change. endangered plants in the Southwest ‘‘Nonnative, Invasive Species’’ section Annual mean precipitation levels are during the drought years of 2001 above). Given the cumulative effects of expected to decrease in western North through 2004 (Anderton 2002, p. 1; Van the potential population reduction and America and especially the Buren and Harper 2002, p. 3; Van Buren habitat loss (of already small southwestern States by mid-century and Harper 2004, entire; Hughes 2005, populations) associated with mining, (IPCC 2007, p. 8; Seager et al. 2007, p. entire; Clark and Clark 2007, p. 6; Roth recreation, invasive species, and fire, we 1181). Throughout the Gierisch 2008a, entire; Roth 2008b, pp. 3–4). are concerned about the impacts of mallow’s range, precipitation is Similar responses are anticipated to future climate change to the Gierisch predicted to increase 10 to 15 percent in adversely affect the long-term mallow. the winter, decrease 5 to 15 percent in persistence of the Gierisch mallow. spring and summer, and remain Periods of prolonged drought, especially In summary, the future effects of unchanged in the fall under the highest with decreased winter rains essential to global climate change and drought on emissions scenario (Karl et al. 2009, p. the survival and persistence of the the Gierisch mallow are unclear. 29). The levels of aridity of recent Gierisch mallow, are likely to decrease However, because of the threats of drought conditions and perhaps those of the ability of this plant to produce mining, grazing during drought years, the 1950s drought years will become the viable seeds. Additionally, prolonged recreation, and nonnative species, the new climatology for the southwestern drought will likely diminish the ability cumulative effects of climate change United States (Seager et al. 2007, p. of seeds currently in the seed bank to and drought may be of concern for this 1181). Much of the Southwest remains produce viable plants and for seedlings species in the future. At this time, we in a 10-year drought, which is to survive to maturity. believe that the state of knowledge considered the most severe western Climate change is expected to concerning the localized effects of drought of the last 110 years (Karl et al. increase levels of carbon dioxide climate change and drought is too 2009, p. 130). Although droughts occur (Walther et al. 2002, p. 389; IPCC 2007, speculative to determine whether more frequently in areas with minimal p. 48; Karl et al. 2009, p. 129). Elevated climate change and drought are a threat precipitation, even a slight reduction levels of carbon dioxide lead to to these species in the future. However, from normal precipitation may lead to increased invasive annual plant we will continue to assess the potential severe reductions in plant production biomass, invasive seed production, and threats of climate change and drought as (Herbel et al. 1972, p. 1084). Therefore, pest outbreaks (Smith et al. 2000, pp. better scientific information becomes the smallest change in environmental 80–81; IPCC 2002, pp. 18, 32; Ziska et available.

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Summary of Factor E The threats acting upon the cumulative stressors on the species and populations of Gierisch mallow are its habitat. For example, gypsum mining We assessed the potential risks of intensified because of the species’ small is anticipated to extirpate more than small population size to the Gierisch population size and limited range, half of the known population of the mallow. The Gierisch mallow has a resulting in a high likelihood of Gierisch mallow, especially since the highly restricted distribution and exists extinction for this species. The Gierisch existing regulations cannot sufficiently in 18 populations scattered over an area mallow is a narrow endemic species mitigate the effects of gypsum mining in that covers approximately 460 ac (186 with a very restricted range; the small Gierisch mallow habitat. Livestock ha). Individual populations occupy very areas of occupied habitat combined with grazing throughout the range of the small areas with large densities of the species’ strong association with Gierisch mallow may affect the plants. We conclude that stochastic gypsum soils makes the species highly population viability of the remaining events could impact a significant vulnerable to habitat destruction or populations if periods of drought portion of a population. Small modification through mining-related continue and livestock continue to populations that are restricted by habitat and recreation activities as well as consume the Gierisch mallow, including requirements also are more vulnerable livestock grazing during drought and seedlings, during drought periods. to the effects of climate change, such as random extinction events, including Additionally, the risk of increased prolonged droughts and increased fire invasive species (and the inherent risk wildfire frequency and intensity frequencies. Although small population of increased fires) and the potential resulting from increased nonnative, size and climate change make the future effects of global climate change invasive species has the potential to species intrinsically more vulnerable, (Factor A). Furthermore, two of the extirpate several populations and, we are uncertain whether they would largest populations of the Gierisch possibly, contribute to the extinction of rise to the level of threat by themselves. mallow and its habitat will be the species. Climate change is However, when combined with the completely removed by mining anticipated to increase the drought threats listed under Factor A (mining operations. Both of the mines have periods and contribute to the spread of operations; livestock grazing; recreation approved Mining Plans of Operations nonnative, invasive species as well. All activities; and nonnative, invasive and permits from the respective land of these factors combined heighten the species), and the lack of existing management agencies (BLM and ASLD); risk of extinction and lead to our finding regulatory mechanisms to alleviate thus mining can occur at any time. Even that the Gierisch mallow is in danger of those threats, the small population size though these mining operations are not extinction and warrants listing as an and restricted range of the Gierisch currently active, when they begin endangered species. mallow are likely to significantly operation there will be no requirement The Act defines an endangered increase the level of the above- for notification of land-disturbing species as any species that is ‘‘in danger mentioned threats. activities that would impact or of extinction throughout all or a completely remove these populations. significant portion of its range’’ and a Proposed Determination As previously stated, operation and threatened species as any species ‘‘that expansion of these two mines is is likely to become endangered We have carefully assessed the best throughout all or a significant portion of scientific and commercial information anticipated to extirpate more than 50 percent of known Gierisch mallow its range within the foreseeable future.’’ available regarding the past, present, The threats will not start having serious plants, which are located in two and future threats to the Gierisch impact to the species in the future, populations in Arizona. The existing mallow. We find that the species is in which would be the case with a regulatory mechanisms are not adequate danger of extinction due to the current threatened species, but have already to protect the Gierisch mallow from the and ongoing modification and commenced, have been negatively primary threat of mining, particularly destruction of its habitat and range impacting the species for some time, because the BLM has approved mining (Factor A) from the ongoing and future and will continue to do so into the operations with mitigation that we gypsum mining operations, livestock foreseeable future. We find that the consider ineffective at reducing threats. grazing, recreation activities, and Gierisch mallow is presently in danger Furthermore, the ASLD does not nonnative, invasive species. The most of extinction throughout its entire range, significant factor threatening the consider the presence of a listed species based on the immediacy, severity, and Gierisch mallow is the ongoing and when approving a Mining Plan of scope of the threats described above. future gypsum mining that is likely to Operation. The ASLD has the ability to Therefore, on the basis of the best remove more than 50 percent of the total require mitigation for the presence of a available scientific and commercial population of the Gierisch mallow. We federally listed species; however, there information, we propose listing the did not find any significant threats to is no current requirement because the Gierisch mallow as endangered in the species under Factor B. We found Gierisch mallow is not federally listed. accordance with sections 3(6) and that predation (herbivory) during We consider this regulatory mechanism 4(a)(1) of the Act. drought years to be a moderate threat to be ineffective as well. The Under the Act and our implementing (Factor C). We also found that existing inadequacy of regulatory mechanisms regulations, a species may warrant regulatory mechanisms that could (Factor D), combined with the expected listing if it is endangered or threatened provide protection to the Gierisch turnaround of the housing market throughout all or a significant portion of mallow through mining operations (gypsum is an important component of its range. The Gierisch mallow proposed management by the BLM and ASLD are sheet rock for housing construction), for listing in this rule is highly restricted inadequate to protect the species (Factor poses a serious threat to the continued in its range and the threats occur D) from existing and future threats. existence of the Gierisch mallow. The throughout its range. Therefore, we Finally, the small population size and small, reduced range (Factor E) of the assessed the status of the species restricted range of this species also puts Gierisch mallow also puts it at a throughout its entire range. The threats it at a heightened risk of extinction heightened risk of extinction. to the survival of the species occur (Factor E), due to the significant threats The elevated risk of extinction of the throughout the species’ range and are described above in Factors A, C, and D. Gierisch mallow is a result of the not restricted to any particular

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significant portion of that range. process is to restore listed species to a species recovery can be found at: Accordingly, our assessment and point where they are secure, self- http://www.fws.gov/grants. proposed determination applies to the sustaining, and functioning components Although the Gierisch mallow is only species throughout its entire range. of their ecosystems. proposed for listing under the Act at Listing the Gierisch mallow as a Recovery planning includes the this time, please let us know if you are threatened species is not the appropriate development of a recovery outline interested in participating in recovery determination because the ongoing shortly after a species is listed, efforts for this species. Additionally, we threats described above are severe preparation of a draft and final recovery invite you to submit any new enough to increase the immediate risk of plan, and revisions to the plan as information on this species whenever it extinction. The gypsum mining significant new information becomes becomes available and any information operations are anticipated to resume full available. The recovery outline guides you may have for recovery planning operations and expansions in as few as the immediate implementation of urgent purposes (see ADDRESSES). 3 to 10 years, although the mining recovery actions and describes the Section 7(a) of the Act requires operations could occur sooner. Grazing process to be used to develop a recovery Federal agencies to evaluate their is ongoing throughout the range of the plan. The recovery plan identifies site- actions with respect to any species that Giersich mallow, and climate change is specific management actions that will is proposed or listed as endangered or anticipated to cause more periods of achieve recovery of the species, threatened and with respect to its drought, when livestock graze more measurable criteria that determine when critical habitat, if any is designated. heavily on the Gierisch mallow. a species may be downlisted or delisted, Regulations implementing this Additionally, red brome and cheatgrass and methods for monitoring recovery interagency cooperation provision of the are abundant throughout the area, and progress. Recovery plans also establish Act are codified at 50 CFR part 402. while they are typically more abundant a framework for agencies to coordinate Section 7(a)(4) of the Act requires in the Gierisch mallow habitat after wet their recovery efforts and provide Federal agencies to confer with the years, recent wet years have left an estimates of the cost of implementing Service on any action that is likely to abundant crop of red brome in Gierisch recovery tasks. Recovery teams jeopardize the continued existence of a mallow habitat. Wildfires could occur at (comprised of species experts, Federal species proposed for listing or result in any time as a result of the proliferation and State agencies, non-government destruction or adverse modification of of these invasive species. All of these organizations, and stakeholders) are proposed critical habitat. If a species is factors combined lead us to conclude often established to develop recovery listed subsequently, section 7(a)(2) of that the threat of extinction is high and plans. If this proposed rule is made the Act requires Federal agencies to immediate, thus warranting a final, when completed, the recovery ensure that activities they authorize, determination of endangered rather than outline, draft recovery plan, and the fund, or carry out are not likely to threatened for the Gierisch mallow. final recovery plan would be available jeopardize the continued existence of on our Web site (http://www.fws.gov/ the species or destroy or adversely Available Conservation Measures endangered), or from our Arizona modify its critical habitat. If a Federal Conservation measures provided to Ecological Services Field Office (see FOR action may affect a listed species or its species listed as endangered or FURTHER INFORMATION CONTACT). critical habitat, the responsible Federal threatened under the Act include Implementation of recovery actions agency must enter into formal recognition, recovery actions, generally requires the participation of a consultation with the Service. requirements for Federal protection, and broad range of partners, including other Federal agency actions within the prohibitions against certain practices. Federal agencies, States, Tribal, species’ habitat that may require Recognition through listing results in nongovernmental organizations, conference or consultation or both, as public awareness and conservation by businesses, and private landowners. described in the preceding paragraph, Federal, State, Tribal, and local Examples of recovery actions include include management and any other agencies; private organizations; and habitat restoration (e.g., restoration of landscape-altering activities on Federal individuals. The Act encourages native vegetation), research, captive lands administered by the BLM, such as cooperation with the States and requires propagation and reintroduction, and mining operations, livestock grazing, that recovery actions be carried out for outreach and education. The recovery of and issuing special use permits. all listed species. The protection many listed species cannot be The Act and its implementing required by Federal agencies and the accomplished solely on Federal lands regulations set forth a series of general prohibitions against certain activities because their range may occur primarily prohibitions and exceptions that apply are discussed, in part, below. or solely on non-Federal lands. To to endangered plants. All prohibitions The primary purpose of the Act is the achieve recovery of these species of section 9(a)(2) of the Act, conservation of endangered and requires cooperative conservation efforts implemented by 50 CFR 17.61, apply. threatened species and the ecosystems on private, State, and Tribal lands. These prohibitions, in part, make it upon which they depend. The ultimate If this species is listed, funding for illegal for any person subject to the goal of such conservation efforts is the recovery actions will be available from jurisdiction of the United States to recovery of these listed species, so that a variety of sources, including Federal import or export, transport in interstate they no longer need the protective budgets, State programs, and cost share or foreign commerce in the course of a measures of the Act. Subsection 4(f) of grants for non-Federal landowners, the commercial activity, sell or offer for sale the Act requires the Service to develop academic community, and in interstate or foreign commerce, or and implement recovery plans for the nongovernmental organizations. In remove and reduce the species to conservation of endangered and addition, under to section 6 of the Act, possession from areas under Federal threatened species. The recovery the State of Arizona would be eligible jurisdiction. In addition, for plants planning process involves the for Federal funds to implement listed as endangered, the Act prohibits identification of actions that are management actions that promote the the malicious damage or destruction on necessary to halt or reverse the species’ protection and recovery of the Gierisch areas under Federal jurisdiction and the decline by addressing the threats to its mallow. Information on our grant removal, cutting, digging up, or survival and recovery. The goal of this programs that are available to aid damaging or destroying of such plants

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in knowing violation of any State law or Endangered Species Permits, Southwest have determined that the designation of regulation, including State criminal Regional Office, P.O. Box 1306, critical habitat would not likely increase trespass law. Certain exceptions to the Albuquerque, NM, 87103–1306; the degree of threat to any of the species prohibitions apply to agents of the telephone (505) 248–6911; facsimile and may provide some measure of Service and State conservation agencies. (505) 248–6915. benefit, we find that designation of This species is currently protected by critical habitat is prudent for the Critical Habitat the Arizona Native Plant Act (ANPA). Gierisch mallow. Since it became a candidate species in Prudency Determination 2008, Arizona protects the Gierisch Background Section 4 of the Act, as amended, and mallow as ‘‘Highly Safeguarded.’’ Plants It is our intent to discuss below only implementing regulations (50 CFR in the ‘‘Highly Safeguarded’’ category those topics directly relevant to the 424.12), require that, to the maximum under the ANPA include ‘‘plants designation of critical habitat for the extent prudent and determinable, the resident to this State and listed as Gierisch mallow in this section of the Secretary designate critical habitat at the endangered, threatened, or category 1 in proposed rule. For a complete time the species is determined to be the Federal endangered species act of description of the life history and endangered or threatened. Our 1973’’ (ANPA 1997, p. 4). The ANPA habitat needs of the Gierisch mallow, controls collecting, and limited regulations at 50 CFR 424.12(a)(1) state see the Species Information section scientific collection of ‘‘Highly that the designation of critical habitat is above. Safeguarded’’ species is allowed (Austin not prudent when one or both of the Critical habitat is defined in section 3 2012, p. 1), but the ANPA provides no following situations exist: (1) The of the Act as: protection for plant habitat. Protection species is threatened by taking or other (1) The specific areas within the under the Act as an endangered species activity and the identification of critical geographical area occupied by the will, therefore, offer additional habitat can be expected to increase the species, at the time it is listed in protections to this species. degree of threat to the species; or (2) the accordance with the Act, on which are We may issue permits to carry out designation of critical habitat would not found those physical or biological otherwise prohibited activities be beneficial to the species. features involving endangered and threatened There is no indication that the (a) Essential to the conservation of the plant species under certain Gierisch mallow threatened by species and circumstances. Regulations governing collection, and there are no likely (b) Which may require special permits are codified at 50 CFR 17.62 for increases in the degree of threats to the management considerations or endangered plants, and at 17.72 for species if critical habitat were protection; and threatened plants. With regard to designated. This species is not the target (2) Specific areas outside the endangered plants, a permit must be of collection, and the areas we propose geographical area occupied by the issued for the following purposes: for designation either have restricted species at the time it is listed, upon a enhancement of propagation or survival public access (mine sites) or are already determination that such areas are of the species. readily open to the public (BLM land). essential for the conservation of the It is our policy, as published in the None of the threats identified to the species. Federal Register on July 1, 1994 (59 FR species are associated with human Conservation, as defined under 34272), to identify to the maximum access to the sites, with the exception of section 3 of the Act, means to use and extent practicable at the time a species the threats associated with recreational the use of all methods and procedures is listed, those activities that would or activities on BLM land. This threat, or that are necessary to bring an would not constitute a violation of any other identified threat, is not endangered or threatened species to the section 9 of the Act. The intent of this expected to increase as a result of point at which the measures provided policy is to increase public awareness of critical habitat designation because the pursuant to the Act are no longer the effect of a proposed listing on BLM cannot control unauthorized necessary. Such methods and proposed and ongoing activities within recreational activities, and the procedures include, but are not limited the range of species proposed for listing. designation of critical habitat would not to, all activities associated with The following activities could change the situation. scientific resources management such as potentially result in a violation of In the absence of finding that the research, census, law enforcement, section 9 of the Act; this list is not designation of critical habitat would habitat acquisition and maintenance, comprehensive: Unauthorized increase threats to a species, if there are propagation, live trapping, and collecting, handling, possessing, selling, any benefits to a critical habitat transplantation, and, in the delivering, carrying, or transporting of designation, then a prudent finding is extraordinary case where population the species, including import or export warranted. The potential benefits of pressures within a given ecosystem across State lines and international critical habitat to the Gierisch mallow cannot be otherwise relieved, may boundaries, except for properly include: (1) Triggering consultation include regulated taking. documented antique specimens of these under section 7 of the Act, in new areas Critical habitat receives protection taxa at least 100 years old, as defined by for actions in which there may be a under section 7 of the Act through the section 10(h)(1) of the Act. Federal nexus where it would not requirement that Federal agencies Questions regarding whether specific otherwise occur, because, for example, ensure, in consultation with the Service, activities would constitute a violation of Federal agencies were not aware of the that any action they authorize, fund, or section 9 of the Act should be directed potential impacts of an action on the carry out is not likely to result in the to the Arizona Ecological Services Field species; (2) focusing conservation destruction or adverse modification of Office (see FOR FURTHER INFORMATION activities on the most essential features critical habitat. The designation of CONTACT). Requests for copies of the and areas; (3) providing educational critical habitat does not affect land regulations concerning listed plants and benefits to State or county governments, ownership or establish a refuge, general inquiries regarding prohibitions or private entities; and (4) preventing wilderness, reserve, preserve, or other and permits may be addressed to the people from causing inadvertent harm conservation area. Such designation U.S. Fish and Wildlife Service, to the species. Therefore, because we does not allow the government or public

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to access private lands. Such to ensure the conservation of the habitat areas may still result in jeopardy designation does not require species. findings in some cases. These implementation of restoration, recovery, Section 4 of the Act requires that we protections and conservation tools or enhancement measures by non- designate critical habitat on the basis of would continue to contribute to Federal landowners. Where a landowner the best scientific data available. recovery of this species. Similarly, requests Federal agency funding or Further, our Policy on Information critical habitat designations made on the authorization for an action that may Standards Under the Endangered basis of the best available information at affect a listed species or critical habitat, Species Act (published in the Federal the time of designation would not the consultation requirements of section Register on July 1, 1994 (59 FR 34271)), control the direction and substance of 7(a)(2) of the Act would apply, but even the Information Quality Act (section 515 future recovery plans, habitat in the event of a destruction or adverse of the Treasury and General conservation plans (HCPs), or other modification finding, the obligation of Government Appropriations Act for species conservation planning efforts if the Federal action agency and the Fiscal Year 2001 (Pub. L. 106–554; H.R. new information available at the time of landowner is not to restore or recover 5658)), and our associated Information these planning efforts calls for a the species, but to implement Quality Guidelines, provide criteria, different outcome. reasonable and prudent alternatives to establish procedures, and provide avoid destruction or adverse guidance to ensure that our decisions Physical or Biological Features modification of critical habitat. are based on the best scientific data In accordance with section 3(5)(A)(i) Under the first prong of the Act’s available. They require our biologists, to and 4(b)(1)(A) of the Act and regulations definition of critical habitat, areas the extent consistent with the Act and at 50 CFR 424.12, in determining which within the geographic area occupied by with the use of the best scientific data areas within the geographic area the species at the time it was listed (in available, to use primary and original occupied by the species at the time of this case, currently occupied areas) are sources of information as the basis for listing to designate as critical habitat, included in a critical habitat designation recommendations to designate critical we consider the physical or biological if they contain physical or biological habitat. features that are essential to the features (1) which are essential to the When we are determining which areas conservation of the species and which conservation of the species and (2) should be designated as critical habitat, may require special management which may require special management our primary source of information is considerations or protection. These considerations or protection. For these generally the information developed include, but are not limited to: areas, critical habitat designations during the listing process for the (1) Space for individual and identify, to the extent known using the species. Additional information sources population growth and for normal best scientific and commercial data may include the recovery plan for the behavior; available, those physical or biological species, articles in peer-reviewed (2) Food, water, air, light, minerals, or features that are essential to the journals, conservation plans developed other nutritional or physiological conservation of the species (such as by States and counties, scientific status requirements; space, food, cover, and protected surveys and studies, biological (3) Cover or shelter; habitat). In identifying those physical assessments, other unpublished (4) Sites for breeding, reproduction, or and biological features within an area, materials, or experts’ opinions or rearing (or development) of offspring; we focus on the principal biological or personal knowledge. and physical constituent elements (primary Habitat is dynamic, and species may (5) Habitats that are protected from constituent elements such as roost sites, move from one area to another over disturbance or are representative of the nesting grounds, seasonal wetlands, time. We recognize that critical habitat historical, geographic, and ecological water quality, tide, soil type) that are designated at a particular point in time distributions of a species. essential to the conservation of the may not include all of the habitat areas We derive the specific physical or species. Primary constituent elements that we may later determine are biological features required for the (PCEs) are the elements of physical or necessary for the recovery of the Gierisch mallow from studies of this biological features that, when laid out in species. For these reasons, a critical species’ habitat, ecology, and life history the appropriate quantity and spatial habitat designation does not signal that as described below. We have arrangement to provide for a species’ habitat outside the designated area is determined that the following physical life-history processes, are essential to unimportant or may not be needed for or biological features are essential for the conservation of the species. recovery of the species. If we list the the Gierisch mallow. Under the second prong of the Act’s Gierisch mallow, areas that are Space for Individual and Population definition of critical habitat, we can important to the conservation of the Growth and for Normal Behavior designate critical habitat in areas species, both inside and outside the outside the geographic area occupied by critical habitat designation, would The Gierisch mallow has a limited the species at the time it is listed (in this continue to be subject to: (1) distribution; it is only found in a small case, outside currently occupied areas), Conservation actions implemented area in Utah and Arizona. Within these upon a determination that such areas under section 7(a)(1) of the Act, (2) areas, the Gierisch mallow requires are essential for the conservation of the regulatory protections afforded by the appropriate soils, associated formations, species. For example, an area currently requirement in section 7(a)(2) of the Act slope, drainage, and plant community occupied by the species but that was not for Federal agencies to ensure their types within the landscape to provide occupied at the time of listing may be actions are not likely to jeopardize the space for individual growth and to essential to the conservation of the continued existence of any endangered provide food, water, air, light, minerals, species and may be included in the or threatened species, and (3) the or other nutritional or physiological critical habitat designation. We prohibitions of section 9 of the Act if requirements. In both Arizona and Utah, designate critical habitat in areas actions occurring in these areas may the Gierisch mallow is found in outside the geographic area occupied by affect the species. Federally funded or gypsiferous outcrops of the Harrisburg a species only when a designation permitted projects affecting listed Member of the Kaibab Formation. In limited to its range would be inadequate species outside their designated critical Arizona, these sites may be affiliated

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with the following gypsiferous soil • Badland throughout its range occurs within the series: • Fluvaquents and Torrifluvents, and landcover described as Mojave mid- • Nikey-Ruesh complex, • Riverwash. elevation mixed desert scrub • Gypill-Hobog complex, The Gierisch mallow occurs at (NatureServe 2011, p. 2). This • Hobog-Tidwell complex, elevations from 821 to 1,148 m (2,694 to classification represents the extensive • Hobog-Grapevine complex, 3,766 ft) in Arizona and from 755 to 861 desert scrub in the transition zone above • Grapevine-Shelly complex, m (2,477 to 2,825 ft) in Utah. We could the Larrea tridentata (creosote)– • Hindu-Rock outcrop-Gypill not correlate the Gierisch mallow Ambrosia dumosa (white bursage) complex, occurrences to a specific range of slopes; desert scrub and below the lower • Cave-Harrisburg-Grapevine therefore, topography is not considered montane woodlands from 700 to 1800 m complex, and to be an essential physical feature for (2,296 to 5,905 ft) that occur in the • Grapevine-Hobcan complex this species (Service unpublished data, eastern and central Mojave Desert. The (Service unpublished data). 2012). vegetation within this ecological system Sites in Utah are most affiliated with the The Gierisch mallow occurs in is quite variable. A list of common following soil series (Service sparsely vegetated, warm desert plants associated with the Gierisch unpublished data, 2012, p. 1): communities. All occupied habitat mallow habitat is included in Table 2.

TABLE 2—VEGETATION ASSOCIATED WITH THE GIERISCH MALLOW HABITAT (NATURESERVE 2011, P. 2)

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

Coleogyne ramosissima Acacia greggii (Catclaw acacia) ...... Achnatherum hymenoides (Indian ricegrass). (Blackbrush). Eriogonum fasciculatum Canotia holacantha (Crucifixion thorn) ...... A. speciosum (Desert needlegrass). (Buckwheat). Ephedra nevadensis (Ne- Ephedra nevadensis (Nevada jointfir) ...... Muhlenbergia porteri (Bush muhly). vada jointfir). Grayia spinosa (Spiny Ephedra torreyana (Desert Mormon tea) ...... Eriogonum sp. (Various annual buckwheats). hopsage). Encelia farinosa (Brittlebush) ...... Pleuraphis jamesii (James’ galleta). Purshia stansburiana (Stansbury cliffrose) ...... Poa secunda (Sandberg bluegrass). Gutierrezia sarothrae (Broom snakeweed).

Depending on the moisture regime, potential pollinators of the Gierisch and habitat (Tepedino et al. 1996, p. the Gierisch mallow also can be mallow and other associated vegetation 245). Redundancy of pollinator species associated with native annuals that are in the surrounding community. The is important because a pollinator often ephemeral (seen only in the globemallow bee, along with other species may be abundant one year and spring) and, like many Mohave Desert solitary bees, nest in the ground, and less so the next year. Maintaining a full plant species, seasonally abundant nests are commonly found in partially suite of pollinators allows for the based on climatic conditions. compacted soil along the margins of dirt likelihood that another pollinator Therefore, based on the information roads in the western United States species will stand in for a less abundant above, we identify gypsum soils found (Tepedino 2010, p. 1). It is important to one, and is essential in assuring in the Harrisburg Member of the Kaibab protect those nesting sites and adequate pollination. Formation from 755 to 1,148 m (2,477 associated natural habitat for the Bees have a limited foraging range to 3,766 ft) and with the appropriate globemallow bee and other potential strongly correlated to body size native vegetation communities to be an pollinators. (Greenleaf, 2005, p. 17; Steffan- essential physical or biological feature Dewenter and Tscharntke 1999, pp. for this species. Natural habitat for the globemallow 434–435). Fragmentation of habitat can bee and other potential pollinators result in isolating plants from pollinator Sites for Reproduction, Germination, includes those appropriate vegetation nesting sites. When the distance Seed Dispersal or Pollination communities described above in Table between plants and the natural habitats The Gierisch mallow is a native 2. The lack of favorable natural habitat of pollinators increases, plant species of sparsely vegetated, warm can negatively influence pollination reproduction (as measured by mean desert communities. Although we do productivity (Kremen et al. 2004, pp. seed set) can decline by as much as 50 not know how the species is pollinated, 1116–1117). Sites for the Gierisch percent in some plant species (Steffan- other species of the genus Sphaeralcea mallow’s reproduction, germination, Dewenter and Tscharntke 1999, pp. (globemallows) are pollinated by and seed dispersal, and pollination 435–436). Optimal pollination occurs Diadasia diminuta (globemallow bee), providers are found within the when there is abundance of individual which specializes in pollinating plants communities described above. Because pollinators and a species-rich bee of this genus. Globemallow bees are the Gierisch mallow is potentially community (Greenleaf 2005, p. 47). considered important pollinators for pollinated by globemallow bees and Greenleaf (2005, p. 15) defines the globemallows (Tepedino 2010, p. 2). other insects, the presence of pollinator typical homing distance of a bee taxon These solitary bees, as well as other populations is essential to the as the distance at which 50 percent of Diadasia species, are known to occur conservation of the species. Preservation individual bees of that taxon have the within the range of the Gierisch mallow of the mix of species and interspecific ability to return to their home (nest, (Sipes and Tepedino 2005, pp. 490–491; interactions they encompass greatly etc.). Solitary bees of various species Sipes and Wolf 2001, pp. 146–147), so improves the chances for survival of have been documented to have foraging it is reasonable to assume that they are rare species in their original location distances ranging from 150 m (492 ft) to

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1,200 m (3,937 ft) (Gathmann and red brome-driven fires are significant proper suite of pollinators are present, Tscharntke 2002, p. 760; Greenleaf et al. because of their intensity and this includes habitat that provides 2007, p. 593). consumption of perennial shrubs. nesting substrate for pollinators in the Therefore, based on the information Imprecise forecasts of the impacts of areas described in PCE 2. above, we identify pollinators and climate change make the identification (4) Areas free of disturbance and areas associated appropriate native plant of areas that may become essential with low densities or absence of communities within 1,200 m (3,937 ft) impractical at this time. Therefore, we nonnative, invasive plants, such as red of occupied sites to be an essential have not identified additional areas brome and cheatgrass. physical or biological feature for this outside those currently occupied where With this proposed designation of species. the species may move to, or be critical habitat, we intend to identify the transplanted to, as a result of the physical or biological features essential Habitats Protected From Disturbance or to the conservation of the species, Representative of the Historical, impacts due to climate change. Based on the information above, we through the identification of primary Geographic, and Ecological constituent elements sufficient to Distributions of the Species identify areas free of disturbance and areas with low densities or absence of support the life-history processes of the The species’ known range has not nonnative, invasive species to be an species. All units proposed to be contracted or expanded since the essential physical or biological feature designated as critical habitat are species was described in 2002. All sites for this species. currently occupied by the Gierisch contribute to ecological distribution and mallow and contain the primary function for this species by providing Primary Constituent Elements for the constituent elements sufficient to representation across the species’ Gierisch Mallow support the life-history needs of the limited current range. It is important to Under the Act and its implementing species. minimize surface-disturbing activities regulations, we are required to identify throughout the limited range of the Special Management Considerations or the physical or biological features Protection Gierisch mallow. Surface disturbing essential to the conservation of the activities, such mining and recreation Gierisch mallow in areas occupied at When designating critical habitat, we activities (OHV and impacts related to the time of listing, focusing on the assess whether the specific areas within target shooting), remove the unique soil features’ primary constituent elements. the geographic area occupied by the composition and associated vegetation We consider primary constituent species at the time of listing contain communities that the Gierisch mallow elements to be the elements of physical features that are essential to the needs. or biological features that provide for a conservation of the species and which Additionally, it is important to have species’ life-history processes and are may require special management areas in all the units free of nonnative, essential to the conservation of the considerations or protection. The invasive species, such as red brome and species. features essential to the conservation of cheatgrass. As previously discussed in Based on our current knowledge of this species may require special Factor A, above, both cheatgrass and red the physical or biological features and management considerations or brome tend to not grow well in gypsum habitat characteristics required to protection to reduce the direct and outcrops in normal (dry) rainfall years; sustain the species’ life-history indirect effects associated with the however, they can be abundant in processes, we determine that the following threats: Habitat loss and Gierisch mallow habitat during wet primary constituent elements specific to degradation from mining operations; years. Invasions of annual, nonnative the Gierisch mallow are: livestock grazing; recreation activities; species, such as cheatgrass, are well (1) Appropriate geological layers or and invasive plant species. Please refer documented to contribute to increased gypsiferous soils, in the Harrisburg to Factor A above for a complete fire frequencies (Brooks and Pyke 2002, Member of the Kaibab Formation, that description of these threats. Special management to protect the p. 5; Grace et al. 2002, p. 43; Brooks et support individual Gierisch mallow al. 2003, pp. 4, 13, 15). The disturbance features essential to the conservation of plants or their habitat, within the caused by increased fire frequencies the species from the effects of gypsum elevation range of 775 to 1,148 m (2,477 creates favorable conditions for mining include creating managed plant to 3,766 ft). Appropriate soils are increased invasion by cheatgrass. The preserves and open spaces, limiting defined as: end result is a downward spiral, where disturbances to and within suitable • Badland, an increase in invasive species results in • Fluvaquents and Torrifluvents, habitats, and evaluating the need for more fires, more fires create more • Riverwash, and conducting restoration or disturbances, and more disturbances • Cave-Harrisburg-Grapevine revegetation of native plants in open lead to increased densities of invasive complex, spaces or plant preserves containing species. The risk of fire is expected to • Grapevine-Hobcan complex, similar gypsum soils. Management increase from 46 to 100 percent when • Nikey-Ruesh complex, activities that could ameliorate these the cover of cheatgrass increases from • Gypill-Hobog complex, threats include (but are not limited to) 12 to 45 percent or more (Link et al. • Hobog-Tidwell complex, seed collection from the Gierisch 2006, p. 116). The invasion of red brome • Hobog-Grapevine complex, mallow throughout its range, including into the Mojave Desert of western North • Grapevine-Shelly complex, and those plants within the footprint of each America poses similar threats to fire • Hindu-Rock outcrop-Gypill mine. These seeds could be used to regimes, native plants, and other complex. begin propagation studies to determine federally protected species (Brooks et al. (2) Appropriate Mojave desert scrub the long-term viability of plants growing 2004, pp. 677–678). Brooks (1999, p. 16) plant community and associated native in reclaimed soils. Additionally, these also found that high interspace biomass species for the soil types at the sites seeds could be used to begin of red brome and cheatgrass resulted in listed in PCE 1. propagating plants to be planted in greater fire danger in the Mojave Desert. (3) The presence of insect visitors or other gypsum deposits and to augment Brooks (1999, p. 18) goes on to state that pollinators, such as the globemallow bee existing populations. Special the ecological effects of cheatgrass and and other solitary bees. To ensure the management may be necessary to

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

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• Hindu-Rock outcrop-Gypill Albers Equal Area (Albers) North We are proposing for designation of complex (0.25 percent) (Service American Datum 83 (NAD 83) critical habitat lands that we have unpublished data). coordinates. determined areas occupied at the time This provided us with several When determining proposed critical of listing and contain sufficient polygons of occupied habitat spread habitat boundaries, we made every elements of physical or biological across the above soil series. effort to avoid including developed features to support life-history processes (2) To further refine our critical areas such as lands covered by essential for the conservation of the habitat, we then included a 1,200 m buildings, pavement, and other species. No lands outside of the (3,937 feet) buffer around the polygons structures because such lands lack geographic area occupied at the time of of occupied habitat to ensure that all physical or biological features for listing have been proposed for listing. potential pollinators would have a Gierisch mallow. The scale of the maps The area included in both units is large sufficient land base to establish nesting we prepared under the parameters for enough and contains sufficient habitat sites and to provide pollinating services publication within the Code of Federal to ensure the conservation of Gierisch for Gierisch mallow, as described in Regulations may not reflect the mallow. Primary Constituent Elements above. exclusion of such developed lands. Any Proposed Critical Habitat Designation Additionally, the 1,200 m (3,937 feet) such lands inadvertently left inside buffer included three other gypsiferous critical habitat boundaries shown on the We are proposing two units as critical soil types that also contain the maps of this proposed rule have been habitat for Gierisch mallow. Both units necessary habitat for the Gierisch excluded by text in the proposed rule are occupied and contain features that mallow. These soil types are the and are not proposed for designation as are essential to the conservation of • Riverwash, critical habitat. Therefore, if the critical Gierisch mallow. We mapped the units • Cave-Harrisburg-Grapevine habitat is finalized as proposed, a with a degree of precision complex, and Federal action involving these lands commensurate with the available • Grapevine-Hobcan complex. would not trigger section 7 consultation information and the size of the unit. The (3) We then drew critical habitat with respect to critical habitat and the two areas we propose as critical habitat boundaries that captured the locations, requirement of no adverse modification are the Starvation Point Unit and the soils, and pollinator habitat elucidated unless the specific action would affect Black Knolls Unit. The approximate under (1) and (2) above. Critical habitat the physical or biological features in the area of each proposed critical habitat designations were then mapped using adjacent critical habitat. unit is shown in Table 3.

TABLE 3—PROPOSED 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 Totals

Unit 1. Starvation Point ..... 0 ...... 1,022 ha (2,526 ac) ...... 316 ha (782 ac) ...... 1,339 ha (3,309 ac). Unit 2. Black Knolls ...... 3,586 ha (8,862 ac) ...... 0 ...... 263 ha (651 ac) ...... 3,850 ha (9,513 ac).

Totals ...... 3,586 ha (8,862 ac) ...... 1,022 ha (2,526 ac) ...... 580 ac (1,434 ac) ...... 5,189 ha (12,822 ac). Note: Area sizes may not sum due to rounding.

We present brief descriptions of all activities that disrupt the soil Unit 2: Black Knolls units, and reasons why they meet the composition, and to maintain the This unit consists of approximately definition of critical habitat for Gierisch identified associated vegetation and mallow, as follows. 3,850 ha (9,513.30 ac) and occurs on pollinators essential to the conservation land managed by both Arizona BLM Unit 1: Starvation Point of the species. The portion of habitat (3,586.28 ha; 8,861.90 ac) and ASLD that occurs on ASLD occurs within the (263.62 ha; 651.41 acres). This unit is This unit consists of approximately footprint of the Georgia-Pacific Mine, 1,339 ha (3,308.7 ac) and occurs on land occupied at the time of listing and which could resume gypsum mining managed by both Utah BLM (1,022 ha; contains the features essential to the operations in the near future. Grazing, 2,526.46 ac) and ASLD (316 ha; 782.24 conservation of the species. Unit 2 ac). This unit was occupied at the time which can modify the primary contains the remaining 16 Gierisch of listing and contains the features constituent elements and may require mallow populations, including the essential to the conservation of the special management, typically occurs largest population. Unit 2 is located species. Unit 1 contains two Gierisch outside of the growing season for south of I–15 as this highway crosses mallow populations, including the Gierisch mallow in the one pasture on the State line of Arizona and Utah, and second largest population. Unit 1 is BLM land within this unit; however, is bounded by Black Rock Gulch to the located west of I–15 as this highway recent wildfires in adjacent pastures in west and Mokaac Mountain to the south crosses the State line of Arizona and this allotment have resulted in livestock and east. Utah, and is bounded by the Virgin grazing occurring into the spring The features essential to the River to the west and I–15 to the south growing season for Gierisch mallow. conservation of the species may require and east. These recently burned pastures have special management considerations or The features essential to the since been rehabilitated, and livestock protection to control invasive plant conservation of the species may require grazing is anticipated to return to its species, to control habitat degradation special management considerations or normal grazing rotation of November 1 due to mining activities that disrupt the protection to control invasive plant to February 28 in the future (Douglas soil composition, and to maintain the species, to control habitat degradation 2012, p. 1). identified associated vegetation and due to the recreation and mining pollinators essential to the conservation

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of the species. The largest population of (such as funding from the Federal request reinitiation of consultation with Gierisch mallow occurs in the area of Highway Administration, Federal us on actions for which formal the proposed expansion of the Black Aviation Administration, or the Federal consultation has been completed, if Rock Gypsum Mine. As described in the Emergency Management Agency). those actions with discretionary proposed listing discussion above, Federal actions not affecting listed involvement or control may affect grazing on BLM AZ lands typically species or critical habitat, and actions subsequently listed species or occurs during the growing season for on State, tribal, local, or private lands designated critical habitat. Gierisch mallow on all three BLM AZ that are not federally funded or allotments and is expected to modify authorized, do not require section 7 Application of the ‘‘Adverse the primary constituent elements, consultation. Modification’’ Standard although some of the pastures are in a As a result of section 7 consultation, The key factor related to the adverse we document compliance with the rest/rotation system in which a pasture modification determination is whether, requirements of section 7(a)(2) through may see an entire year of rest before with implementation of the proposed being grazed again. our issuance of: (1) A concurrence letter for Federal Federal action, the affected critical Effects of Critical Habitat Designation actions that may affect, but are not habitat would continue to serve its intended conservation role for the Section 7 Consultation likely to adversely affect, listed species or critical habitat; or species. Activities that may destroy or Section 7(a)(2) of the Act requires (2) A biological opinion for Federal adversely modify critical habitat are Federal agencies, including the Service, actions that may affect, or are likely to those that alter the physical or to ensure that any action they fund, adversely affect, listed species or critical biological features to an extent that authorize, or carry out is not likely to habitat. appreciably reduces the conservation jeopardize the continued existence of When we issue a biological opinion value of critical habitat for Gierisch any endangered species or threatened concluding that a project is likely to mallow. As discussed above, the role of species or result in the destruction or jeopardize the continued existence of a critical habitat is to support life-history adverse modification of designated listed species and/or destroy or needs of the species and provide for the critical habitat of such species. In adversely modify critical habitat, we conservation of the species. addition, section 7(a)(4) of the Act provide reasonable and prudent Section 4(b)(8) of the Act requires us requires Federal agencies to confer with alternatives to the project, if any are to briefly evaluate and describe, in any the Service on any agency action that is identifiable, that would avoid the proposed or final regulation that likely to jeopardize the continued likelihood of jeopardy and/or designates critical habitat, activities existence of any species proposed to be destruction or adverse modification of involving a Federal action that may listed under the Act or result in the critical habitat. We define ‘‘reasonable destroy or adversely modify such destruction or adverse modification of and prudent alternatives’’ (at 50 CFR proposed critical habitat. habitat, or that may be affected by such 402.02) as alternative actions identified designation. Decisions by the 5th and 9th Circuit during consultation that: Courts of Appeals have invalidated our (1) Can be implemented in a manner Activities that may affect critical regulatory definition of ‘‘destruction or consistent with the intended purpose of habitat, when carried out, funded, or adverse modification’’ (50 CFR 402.02) the action, authorized by a Federal agency, should (see Gifford Pinchot Task Force v. U.S. (2) Can be implemented consistent result in consultation for the Gierisch Fish and Wildlife Service, 378 F. 3d with the scope of the Federal agency’s mallow. These activities include, but are 1059 (9th Cir. 2004) and Sierra Club v. legal authority and jurisdiction, not limited to, actions that would U.S. Fish and Wildlife Service et al., 245 (3) Are economically and significantly alter soil composition that F.3d 434, 442 (5th Cir. 2001)), and we technologically feasible, and Gierisch mallow requires, including but do not rely on this regulatory definition (4) Would, in the Director’s opinion, not limited to mining operations, when analyzing whether an action is avoid the likelihood of jeopardizing the livestock grazing, and special use likely to destroy or adversely modify continued existence of the listed species permits for recreation activities. critical habitat. Under the statutory and/or avoid the likelihood of Exemptions provisions of the Act, we determine destroying or adversely modifying destruction or adverse modification on critical habitat. Application of Section 4(a)(3) of the Act the basis of whether, with Reasonable and prudent alternatives implementation of the proposed Federal can vary from slight project The National Defense Authorization action, the affected critical habitat modifications to extensive redesign or Act for Fiscal Year 2004 (Pub. L. 108– would continue to serve its intended relocation of the project. Costs 136) amended the Act to limit areas conservation role for the species. associated with implementing a eligible for designation as critical If a Federal action may affect a listed reasonable and prudent alternative are habitat. Specifically, section 4(a)(3)(B)(i) species or its critical habitat, the similarly variable. of the Act (16 U.S.C. 1533(a)(3)(B)(i)) responsible Federal agency (action Regulations at 50 CFR 402.16 require now provides: ‘‘The Secretary shall not agency) must enter into consultation Federal agencies to reinitiate designate as critical habitat any lands or with us. Examples of actions that are consultation on previously reviewed other geographic areas owned or subject to the section 7 consultation actions in instances where we have controlled by the Department of process are actions on State, tribal, listed a new species or subsequently Defense, or designated for its use, that local, or private lands that require a designated critical habitat that may be are subject to an integrated natural Federal permit (such as a permit from affected and the Federal agency has resources management plan prepared the U.S. Army Corps of Engineers under retained discretionary involvement or under section 101 of the Sikes Act (16 section 404 of the Clean Water Act (33 control over the action (or the agency’s U.S.C. 670a), if the Secretary determines U.S.C. 1251 et seq.) or a permit from the discretionary involvement or control is in writing that such plan provides a Service under section 10 of the Act) or authorized by law). Consequently, benefit to the species for which critical that involve some other Federal action Federal agencies sometimes may need to habitat is proposed for designation.’’

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There are no Department of Defense that time, copies of the draft economic that our proposed listing and critical lands within the proposed critical analysis will be available for habitat designation are based on habitat designation. downloading from the Internet at scientifically sound data, assumptions, http://www.regulations.gov, or by and analyses. We have invited these Exclusions contacting the Arizona Ecological peer reviewers to comment during this Application of Section 4(b)(2) of the Act Services Field Office directly (see FOR public comment period on our specific Section 4(b)(2) of the Act states that FURTHER INFORMATION CONTACT). During assumptions and conclusions in this the Secretary shall designate and make the development of a final designation, proposed rule. revisions to critical habitat on the basis we will consider economic impacts, We will consider all comments and public comments, and other new of the best available scientific data after information received during this information, and areas may be excluded taking into consideration the economic comment period on this proposed rule from the final critical habitat impact, national security impact, and during our preparation of a final designation under section 4(b)(2) of the any other relevant impact of specifying determination. Accordingly, the final Act and our implementing regulations at any particular area as critical habitat. decision may differ from this proposal. 50 CFR 424.19. The Secretary may exclude an area from Public Hearings critical habitat if he determines that the Exclusions Based on National Security Section 4(b)(5) of the Act provides for benefits of such exclusion outweigh the Impacts one or more public hearings on this benefits of specifying such area as part Under section 4(b)(2) of the Act, we proposal, if requested. Requests must be of the critical habitat, unless he consider whether there are lands owned received within 45 days after the date of determines, based on the best scientific or managed by the Department of publication of this proposed rule in the data available, that the failure to Defense where a national security Federal Register. Such requests must be designate such area as critical habitat impact might exist. In preparing this sent to the address shown in FOR will result in the extinction of the proposal, we have determined that the FURTHER INFORMATION CONTACT. We will species. In making that determination, lands within the proposed designation schedule public hearings on this the statute on its face, as well as the of critical habitat for the Gierisch proposal, if any are requested, and legislative history, are clear that the mallow are not owned or managed by announce the dates, times, and places of Secretary has broad discretion regarding the Department of Defense, and, those hearings, as well as how to obtain which factor(s) to use and how much therefore, we anticipate no impact on reasonable accommodations, in the weight to give to any factor. national security. Consequently, the Under section 4(b)(2) of the Act, we Federal Register and local newspapers Secretary does not propose to exert his at least 15 days before the hearing. may exclude an area from designated discretion to exclude any areas from the critical habitat based on economic final designation based on impacts on Required Determinations impacts, impacts on national security, national security. or any other relevant impacts. In Regulatory Planning and Review— considering whether to exclude a Exclusions Based on Other Relevant Executive Orders 12866 and 13563 particular area from the designation, we Impacts Executive Order 12866 provides that identify the benefits of including the Under section 4(b)(2) of the Act, we the Office of Information and Regulatory area in the designation, identify the consider any other relevant impacts, in Affairs (OIRA) will review all significant benefits of excluding the area from the addition to economic impacts and rules. The Office of Information and designation, and evaluate whether the impacts on national security. We Regulatory Affairs has determined that benefits of exclusion outweigh the consider a number of factors, including this rule is not significant. benefits of inclusion. If the analysis whether the landowners have developed Executive Order 13563 reaffirms the indicates that the benefits of exclusion any habitat conservation plans or other principles of E.O. 12866, while calling outweigh the benefits of inclusion, the management plans for the area, or for improvements in the nation’s Secretary may exercise his discretion to whether there are conservation regulatory system to promote exclude the area only if such exclusion partnerships that would be encouraged predictability, to reduce uncertainty, would not result in the extinction of the by designation of, or exclusion from, and to use the best, most innovative, species. critical habitat. In addition, we look at and least burdensome tools for achieving regulatory ends. The Exclusions Based on Economic Impacts any tribal issues, and consider the government-to-government relationship executive order directs agencies to Under section 4(b)(2) of the Act, we of the United States with tribal entities. consider regulatory approaches that consider the economic impacts of We also consider any social impacts that reduce burdens and maintain flexibility specifying any particular area as critical might occur because of the designation. and freedom of choice for the public habitat. In order to consider economic We are not proposing any exclusions where these approaches are relevant, impacts, we are preparing an analysis of at this time from the proposed critical feasible, and consistent with regulatory the economic impacts of the proposed habitat designation under section 4(b)(2) objectives. E.O. 13563 emphasizes critical habitat designation and related of the Act based on partnerships, further that regulations must be based factors. Potential land use sectors that management, or protection afforded by on the best available science and that may be affected by the critical habitat cooperative management efforts. the rulemaking process must allow for designation include mining, livestock public participation and an open operations, and OHV use, and recreation Peer Review exchange of ideas. We have developed activities. We also consider any social In accordance with our joint policy on this rule in a manner consistent with impacts that might occur because of the peer review published in the Federal these requirements. designation. Register on July 1, 1994 (59 FR 34270), We will announce the availability of we will seek the expert opinions of at Regulatory Flexibility Act (5 U.S.C. 601 the draft economic analysis as soon as least three appropriate and independent et seq.) it is completed, at which time we will specialists regarding this proposed rule. Under the Regulatory Flexibility Act seek public review and comment. At The purpose of peer review is to ensure (RFA; 5 U.S.C. 601 et seq.) as amended

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by the Small Business Regulatory significant energy action, and no otherwise require approval or Enforcement Fairness Act (SBREFA) of Statement of Energy Effects is required. authorization from a Federal agency for 1996 (5 U.S.C. 801 et seq.), whenever an However, we will further evaluate this an action, may be indirectly impacted agency must publish a notice of issue as we conduct our economic by the designation of critical habitat, the rulemaking for any proposed or final analysis, and review and revise this legally binding duty to avoid rule, it must prepare and make available assessment as warranted. destruction or adverse modification of for public comment a regulatory critical habitat rests squarely on the Unfunded Mandates Reform Act flexibility analysis that describes the Federal agency. Furthermore, to the (2 U.S.C. 1501 et seq.) effects of the rule on small entities extent that non-Federal entities are (small businesses, small organizations, In accordance with the Unfunded indirectly impacted because they and small government jurisdictions). Mandates Reform Act (2 U.S.C. 1501 et receive Federal assistance or participate However, no regulatory flexibility seq.), we make the following findings: in a voluntary Federal aid program, the analysis is required if the head of the (1) This rule would not produce a Unfunded Mandates Reform Act would agency certifies the rule will not have a Federal mandate. In general, a Federal not apply, nor would critical habitat significant economic impact on a mandate is a provision in legislation, shift the costs of the large entitlement substantial number of small entities. statute, or regulation that would impose programs listed above onto State The SBREFA amended the RFA to an enforceable duty upon State, local, or governments. require Federal agencies to provide a tribal governments, or the private sector, (2) We do not believe that this rule certification statement of the factual and includes both ‘‘Federal would significantly or uniquely affect basis for certifying that the rule will not intergovernmental mandates’’ and small governments because the lands have a significant economic impact on ‘‘Federal private sector mandates.’’ being proposed for critical habitat a substantial number of small entities. These terms are defined in 2 U.S.C. designation are owned by the State of At this time, we lack the available 658(5)–(7). ‘‘Federal intergovernmental Arizona and the BLM. Neither of these economic information necessary to mandate’’ includes a regulation that government entities fit the definition of provide an adequate factual basis for the ‘‘would impose an enforceable duty ‘‘small governmental jurisdiction.’’ required RFA finding. Therefore, we upon State, local, or tribal governments’’ Therefore, a Small Government Agency defer the RFA finding until completion with two exceptions. It excludes ‘‘a Plan is not required. However, we will of the draft economic analysis prepared condition of Federal assistance.’’ It also further evaluate this issue as we under section 4(b)(2) of the Act and excludes ‘‘a duty arising from conduct our economic analysis, and Executive Order 12866. This draft participation in a voluntary Federal review and revise this assessment as economic analysis will provide the program,’’ unless the regulation ‘‘relates warranted. required factual basis for the RFA to a then-existing Federal program Takings—Executive Order 12630 finding. Upon completion of the draft under which $500,000,000 or more is economic analysis, we will announce provided annually to State, local, and In accordance with Executive Order availability of the draft economic tribal governments under entitlement 12630 (Government Actions and analysis of the proposed designation in authority,’’ if the provision would Interference with Constitutionally the Federal Register and reopen the ‘‘increase the stringency of conditions of Protected Private Property Rights), we public comment period for the proposed assistance’’ or ‘‘place caps upon, or will analyze the potential takings designation. We will include with this otherwise decrease, the Federal implications of designating critical announcement, as appropriate, an initial Government’s responsibility to provide habitat for Gierisch mallow in a takings regulatory flexibility analysis or a funding,’’ and the State, local, or tribal implications assessment. Critical habitat certification that the rule will not have governments ‘‘lack authority’’ to adjust designation does not affect landowner a significant economic impact on a accordingly. At the time of enactment, actions that do not require Federal substantial number of small entities these entitlement programs were: funding or permits, nor does it preclude accompanied by the factual basis for Medicaid; Aid to Families with development of habitat conservation that determination. Dependent Children work programs; programs or issuance of incidental take We have concluded that deferring the Child Nutrition; Food Stamps; Social permits to permit actions that do require RFA finding until completion of the Services Block Grants; Vocational Federal funding or permits to go draft economic analysis is necessary to Rehabilitation State Grants; Foster Care, forward. meet the purposes and requirements of Adoption Assistance, and Independent Federalism—Executive Order 13132 the RFA. Deferring the RFA finding in Living; Family Support Welfare this manner will ensure that we make a Services; and Child Support In accordance with Executive Order sufficiently informed determination Enforcement. ‘‘Federal private sector 13132 (Federalism), this proposed rule based on adequate economic mandate’’ includes a regulation that does not have significant Federalism information and provide the necessary ‘‘would impose an enforceable duty effects. A Federalism summary impact opportunity for public comment. upon the private sector, except (i) a statement is not required. In keeping condition of Federal assistance or (ii) a with Department of the Interior and Energy Supply, Distribution, or Use— duty arising from participation in a Department of Commerce policy, we Executive Order 13211 voluntary Federal program.’’ requested information from, and Executive Order 13211 (Actions The designation of critical habitat coordinated development of, this Concerning Regulations That does not impose a legally binding duty proposed critical habitat designation Significantly Affect Energy Supply, on non-Federal Government entities or with appropriate State resource agencies Distribution, or Use) requires agencies private parties. Under the Act, the only in Arizona and Utah. The designation of to prepare Statements of Energy Effects regulatory effect is that Federal agencies critical habitat in areas currently when undertaking certain actions. We must ensure that their actions do not occupied by the Gierisch mallow do not expect the designation of this destroy or adversely modify critical imposes no additional restrictions to proposed critical habitat to significantly habitat under section 7. While non- those currently in place and, therefore, affect energy supplies, distribution, or Federal entities that receive Federal has little incremental impact on State use. Therefore, this action is not a funding, assistance, or permits, or that and local governments and their

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activities. The designation may have National Environmental Policy Act (42 Government-to-Government some benefit to these governments U.S.C. 4321 et seq.) Relationship With Tribes because the areas that contain the In accordance with the President’s physical or biological features essential We have determined that memorandum of April 29, 1994 to the conservation of the species are environmental assessments and (Government-to-Government Relations more clearly defined, and the elements environmental impact statements, as with Native American Tribal of the features of the habitat necessary defined under the authority of the National Environmental Policy Act Governments; 59 FR 22951), Executive to the conservation of the species are (NEPA; 42 U.S.C. 4321 et seq.), need not Order 13175 (Consultation and specifically identified. This information be prepared Species Act. We published Coordination with Indian Tribal does not alter where and what federally a notice outlining our reasons for this Governments), and the Department of sponsored activities may occur. determination in the Federal Register the Interior’s manual at 512 DM 2, we However, it may assist local on October 25, 1983 (48 FR 49244). readily acknowledge our responsibility governments in long-range planning to communicate meaningfully with (rather than having them wait for case- It is our position that, outside the jurisdiction of the U.S. Court of Appeals recognized Federal Tribes on a by-case section 7 consultations to government-to-government basis. In occur). for the Tenth Circuit, we do not need to prepare environmental analyses accordance with Secretarial Order 3206 Where State and local governments pursuant to NEPA in connection with of June 5, 1997 (American Indian Tribal require approval or authorization from a designating critical habitat under the Rights, Federal-Tribal Trust Federal agency for actions that may Act. We published a notice outlining Responsibilities, and the Endangered affect critical habitat, consultation our reasons for this determination in the Species Act), we readily acknowledge under section 7(a)(2) would be required. Federal Register on October 25, 1983 our responsibilities to work directly While non-Federal entities that receive (48 FR 49244). This position was upheld with tribes in developing programs for Federal funding, assistance, or permits, by the U.S. Court of Appeals for the healthy ecosystems, to acknowledge that or that otherwise require approval or Ninth Circuit (Douglas County v. tribal lands are not subject to the same authorization from a Federal agency for Babbitt, 48 F.3d 1495 (9th Cir. 1995), controls as Federal public lands, to an action, may be indirectly impacted cert. denied 516 U.S. 1042 (1996)). remain sensitive to Indian culture, and by the designation of critical habitat, the However, when the range of the species to make information available to tribes. legally binding duty to avoid includes States within the Tenth We determined that there are no tribal destruction or adverse modification of Circuit, such as that of Gierisch mallow, lands that are occupied by the Gierisch critical habitat rests squarely on the under the Tenth Circuit ruling in Catron mallow that contain the features Federal agency. County Board of Commissioners v. U.S. essential for conservation of the species, Fish and Wildlife Service, 75 F.3d 1429 and no tribal lands unoccupied by the Civil Justice Reform—Executive Order Gierisch mallow that are essential for 12988 (10th Cir. 1996), we will undertake a NEPA analysis for critical habitat the conservation of the species. In accordance with Executive Order designation and notify the public of the Therefore, we are not proposing to 12988 (Civil Justice Reform), the Office availability of the draft environmental designate critical habitat for the Gierisch of the Solicitor has determined that the assessment for this proposal when it is mallow on tribal lands. rule does not unduly burden the judicial finished. References Cited system and that it meets the Clarity of the Rule requirements of sections 3(a) and 3(b)(2) A complete list of references cited in of the Order. We have proposed We are required by Executive Orders this rulemaking is available on the designating critical habitat in 12866 and 12988 and by the Internet at http://www.regulations.gov at accordance with the provisions of the Presidential Memorandum of June 1, Docket No. FWS–R2–ES–2012–0049 and Act. This proposed rule uses standard 1998, to write all rules in plain upon request from the Arizona mapping technology and identifies the language. This means that each rule we Ecological Services Field Office (see FOR elements of physical or biological publish must: FURTHER INFORMATION CONTACT). features essential to the conservation of (1) Be logically organized, Authors the Gierisch mallow within the (2) Use the active voice to address designated areas to assist the public in The primary authors of this package readers directly, understanding the habitat needs of the are the staff members of the Arizona species. (3) Use clear language rather than Ecological Services Field Office. jargon, List of Subjects in 50 CFR Part 17 Paperwork Reduction Act of 1995 (4) Be divided into short sections and (44 U.S.C. 3501 et seq.) sentences, and Endangered and threatened species, Exports, Imports, Reporting and This rule does not contain any new (5) Use lists and tables wherever possible. recordkeeping requirements, collections of information that require Transportation. approval by OMB under the Paperwork If you feel that we have not met these Reduction Act of 1995 (44 U.S.C. 3501 requirements, send us comments by one Proposed Regulation Promulgation et seq.). This rule will not impose of the methods listed in the ADDRESSES Accordingly, we propose to amend recordkeeping or reporting requirements section. To better help us revise the part 17, subchapter B of chapter I, title on State or local governments, rule, your comments should be as 50 of the Code of Federal Regulations, individuals, businesses, or specific as possible. For example, you as set forth below: organizations. An agency may not should tell us the numbers of the conduct or sponsor, and a person is not sections or paragraphs that are unclearly PART 17—[AMENDED] required to respond to, a collection of written, which sections or sentences are information unless it displays a too long, the sections where you feel 1. The authority citation for part 17 currently valid OMB control number. lists or tables would be useful, etc. continues to read as follows:

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Authority: 16 U.S.C. 1361–1407; 16 U.S.C. List of Endangered and Threatened § 17.12 Endangered and threatened plants. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Plants in alphabetical order under * * * * * 625, 100 Stat. 3500; unless otherwise noted. ‘‘Flowering Plants.’’ (h) * * * 2. Amend § 17.12(h) by adding an entry for ‘‘Sphaeralcea gierischii’’ to the

Species Historic Family Status When Critical Special Scientific name Common name range listed habitat rules

FLOWERING PLANTS

******* Sphaeralcea Gierisch mallow ...... U.S.A (AZ, UT) ...... Malvaceae ...... E ...... 17.96(a) NA gierischii.

*******

3. In § 17.96, amend paragraph (a) by (B) Fluvaquents and Torrifluvents, aqueducts, runways, roads, and other adding an entry for ‘‘Sphaeralcea (C) Riverwash, paved areas) and the land on which they gierischii (Gierisch mallow),’’ in (D) Cave-Harrisburg-Grapevine are located existing within the legal alphabetical order under the family complex, boundaries on the effective date of this Malvaceae, to read as follows: (E) Grapevine-Hobcan complex, rule. (F) Nikey-Ruesh complex, § 17.96 Critical habitat—plants. (G) Gypill-Hobog complex, (4) Critical habitat map units. Data (a) Flowering plants. (H) Hobog-Tidwell complex, layers defining map units were created (I) Hobog-Grapevine complex, using Albers Equal Area (Albers) North * * * * * (J) Grapevine-Shelly complex, and American Datum 83 (NAD 83) Family Malvaceae: Sphaeralcea (K) Hindu-Rock outcrop-Gypill coordinates. The maps in this entry, as gierischii (Gierisch mallow) complex. modified by any accompanying (1) Critical habitat units are depicted (ii) Appropriate Mojave desert scrub regulatory text, establish the boundaries for Washington County, Utah, and plant community and associated native of the critical habitat designation. The Mohave County, Arizona, on the maps species for the soil types at the sites coordinates or plot points or both on below. listed in paragraph (2)(i) of this entry. which each map is based are available (2) Within these areas, the primary (iii) The presence of insect visitors or to the public at the Service’s Internet constituent elements of the physical or pollinators, such as the globemallow bee site (http://www.fws.gov/southwest/es/ biological features essential to the and other solitary bees. To ensure the Arizona/), Regulations.gov (http:// conservation of Gierisch mallow consist proper suite of pollinators are present, www.regulations.gov), at Docket No. of the following components: this includes habitat that provides FWS–R2–ES–2012–0049, and at the (i) Appropriate geological layers or nesting substrate for pollinators in the field office responsible for this gypsiferous soils, in the Harrisburg areas described in paragraph (2)(ii) of Member of the Kaibab Formation, that designation. You may obtain field office this entry. location information by contacting one support individual Gierisch mallow (iv) Areas free of disturbance and of the Service regional offices, the plants or their habitat, within the areas with low densities or absence of addresses of which are listed at 50 CFR elevation range of 775 to 1,148 m (2,477 nonnative, invasive plants, such as red 2.2. to 3,766 ft). Appropriate soils are brome and cheatgrass. defined as: (3) Critical habitat does not include (5) Index map follows: (A) Badland, manmade structures (such as buildings, BILLING CODE 4310–55–P

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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 is provided at paragraph (6) of this Dated: August 6, 2012. County, Arizona. Map of Units 1 and 2 entry. Eileen Sobeck, * * * * * Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2012–20086 Filed 8–16–12; 8:45 am] BILLING CODE 4310–55–C

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