[Federal Register Volume 77, Number 160 (Friday, August 17, 2012)]
[Proposed Rules]
[Pages 49894-49919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-20086]



[[Page 49893]]

Vol. 77

Friday,

No. 160

August 17, 2012

Part III





Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Determination of Status 
for the Gierisch Mallow and Designation of Critical Habitat; Proposed 
Rule

  Federal Register / Vol. 77, No. 160 / Friday, August 17, 2012 / 
Proposed Rules  

[[Page 49894]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R2-ES-2012-0049; 4500030113]
RIN 1018-AY58


Endangered and Threatened Wildlife and Plants; Determination of 
Status for the Gierisch Mallow and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list as 
endangered the Gierisch mallow and propose critical habitat for the 
species under the Endangered Species Act. This action is being taken as 
the result of a court-approved settlement agreement. These are proposed 
regulations, and if finalized, the effect of these regulations will be 
to add the species to the List of Endangered or Threatened Plants and 
to designate critical habitat under the Endangered Species Act.

DATES: We will accept comments received or postmarked on or before 
October 16, 2012. We must receive requests for public hearings, in 
writing, at the address shown in FOR FURTHER INFORMATION CONTACT by 
October 1, 2012.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov and search for Docket No. FWS-R2-ES-2012-0049, 
which is the docket number for this rulemaking. Then, in the Search 
panel on the left side of the screen, under the Document Type heading, 
click on the Proposed Rules link to locate this document. You may 
submit a comment by clicking on ``Comment Now!.''
    (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public 
Comments Processing, Attn: FWS-R2-ES-2012-0049; Division of Policy and 
Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax 
Drive, MS 2042-PDM; Arlington, VA 22203.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).
    The coordinates, or plot points, or both from which the critical 
habitat maps are generated are included in the administrative record 
for this rulemaking and are available at (http://www.fws.gov/southwest/es/arizona/), http://www.regulations.gov at Docket No. FWS-R2-ES-2012-
0049, and at the Arizona Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT). Any additional tools or supporting 
information that we may develop for this rulemaking will also be 
available at the Fish and Wildlife Service Web site and Field Office 
set out above, and may also be included in the preamble and/or at 
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S. 
Fish and Wildlife Service, Arizona Ecological Services Field Office, 
2321 West Royal Palm Road, Suite 103, Phoenix, AZ 85021; by telephone 
(602) 242-0210; or by facsimile (602) 242-2513. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    This document consists of a proposed rule to list as endangered 
Sphaeralcea gierischii (Gierisch mallow) and to designate critical 
habitat for Gierisch mallow. In this proposed rule, we will refer to 
Sphaeralcea gierischii as Gierisch mallow.
    Why we need to publish a rule. Under the Endangered Species Act, a 
species may warrant protection through listing if it is endangered or 
threatened throughout all or a significant portion of its range. In 
this proposal, we are explaining why Gierisch mallow warrants 
protection under the Endangered Species Act. This rule proposes to list 
the Gierisch mallow as endangered throughout its range in Mohave 
County, Arizona, and Washington County, Utah, and proposes to designate 
critical habitat for the species. In total, approximately 5,189 
hectares (ha) (12,822 acres (ac)) are proposed for designation as 
critical habitat in both Arizona and Utah.
    The Endangered Species Act provides the basis for our action. Under 
the Endangered Species Act, we can determine that a species is 
endangered or threatened based on any of five factors: (A) The present 
or threatened destruction, modification, or curtailment of its habitat 
or range; (B) overutilization for commercial, recreational, scientific, 
or educational purposes; (C) disease or predation; (D) the inadequacy 
of existing regulatory mechanisms; or (E) other natural or manmade 
factors affecting its continued existence. Factors supporting the 
proposed endangered status for Gierisch mallow include:
     Habitat loss and degradation of appropriate gypsum soils 
as a result of mining operations and recreation activities, including 
off-highway vehicle (OHV) use, target shooting, and trash dumping;
     Inadequate existing regulatory mechanisms that allow 
significant habitat-based impacts, such as regulations governing mining 
operations;
     The spread of nonnative, invasive plant species such as 
Bromus tectorum (cheatgrass) and B. rubens (red brome) that can alter 
native vegetation and promote conditions that support wildfires; and
     Other natural or manmade factors, including the small 
population size of Gierisch mallow, natural environmental variability, 
and climate conditions, such as sustained drought.
    This rule proposes designation of critical habitat for Gierisch 
mallow. Under the Endangered Species Act, we designate specific areas 
as critical habitat to foster conservation of listed species. Future 
actions funded, permitted, or otherwise carried out by Federal agencies 
will be reviewed to ensure they do not adversely modify critical 
habitat. Critical habitat does not affect private actions on private 
lands absent Federal funding. We are proposing the following areas as 
critical habitat for Gierisch mallow:

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                                                  Federal                        State
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      Critical habitat unit             Arizona              Utah               Arizona             Totals
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Unit 1. Starvation Point........  0.................  1,022 ha (2,526     316 ha (782 ac)...  1,339 ha (3,309
                                                       ac).                                    ac).
Unit 2. Black Knolls............  3,586 ha (8,862     0.................  263 ha (651 ac)...  3,850 ha (9,513
                                   ac).                                                        ac).
                                 -------------------------------------------------------------------------------
    Totals......................  3,586 ha (8,862     1,022 ha (2,526     580 ac (1,434 ac).  5,189 ha (12,822
                                   ac).                ac).                                    ac).
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[[Page 49895]]

    We are preparing an economic analysis. To ensure that we consider 
the economic impacts of designating critical habitat, we are preparing 
an economic analysis of the proposed critical habitat designation. We 
will publish an announcement and seek public comments on the draft 
economic analysis when it is completed.
    We will request peer review of the methods used in our proposal. We 
will specifically request that several knowledgeable individuals with 
scientific expertise in this species or related fields review the 
scientific information and methods that we used in developing this 
proposal.
    We are seeking public comment on this proposed rule. Anyone is 
welcome to comment on our proposal or provide additional information on 
the proposal that we can use in making a final determination on the 
status of this species. Please submit your comments and materials 
concerning this proposed rule by one of the methods listed in the 
ADDRESSES section. Within 1 year following the publication of this 
proposal, we will publish in the Federal Register a final determination 
concerning the listing of the species and the designation of its 
critical habitat or withdraw the proposal if new information is 
provided that supports that decision.

Public Comments

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other concerned governmental agencies, 
Native American tribes, the scientific community, industry, or any 
other interested parties concerning this proposed rule. We particularly 
seek comments concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species and regulations that may 
be addressing those threats.
    (2) Additional information concerning the historical and current 
status, range, distribution, and population size of this species, 
including the locations of any additional populations of this species.
    (3) Any information on the biological or ecological requirements of 
the species and ongoing conservation measures for the species and its 
habitat.
    (4) Current or planned activities in the areas occupied by the 
species and possible impacts of these activities on this species.
    (5) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Endangered Species Act of 
1973, as amended (Act) (16 U.S.C. 1531 et seq.) including whether there 
are threats to the species from human activity, the degree of which can 
be expected to increase due to the designation, and whether that 
increase in threat outweighs the benefit of designation such that the 
designation of critical habitat may not be prudent.
    (6) Specific information on:
    (a) The amount and distribution of Gierisch mallow habitat;
    (b) What areas, that were occupied at the time of listing (or are 
currently occupied) and that contain features essential to the 
conservation of the species, should be included in the designation and 
why;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (7) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (8) Information on the projected and reasonably likely impacts of 
climate change on the Gierisch mallow and proposed critical habitat.
    (9) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation; in particular, we seek information on any impacts on small 
entities or families, and the benefits of including or excluding areas 
that exhibit these impacts.
    (10) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act, in particular for those areas that are 
currently being mined for gypsum or proposed to be mined for gypsum in 
the foreseeable future.
    (11) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please note that submissions merely stating support for or 
opposition to the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is a threatened or endangered 
species must be made ``solely on the basis of the best scientific and 
commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We request 
that you send comments only by the methods described in the ADDRESSES 
section.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the Web site. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov. 
Please include sufficient information with your comments to allow us to 
verify any scientific or commercial information you include.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Arizona Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Previous Federal Actions

    The Gierisch mallow was included in the June 25, 2007, petition by 
WildEarth Guardians to the Service seeking the listing of 475 species 
in the southwestern United States. Based on information we received in 
that petition and information readily available in the Service's files, 
the Service added Gierisch mallow as a candidate for listing in the 
December 10, 2008, Candidate Notice of Review (73 FR 75176). Species on 
the candidate list are those fish, wildlife, and plants for which we 
have sufficient information on biological vulnerability and threats to 
support the preparation of a listing proposal, but for which 
development of a listing regulation is precluded by other higher 
listing priorities. Since 2008, the listing priority number for 
Gierisch mallow has been a 2, indicating a species with threats that 
are both imminent and high in magnitude in accordance with our priority 
guidance published on September 21, 1983 (48 FR

[[Page 49896]]

43098). Gierisch mallow has remained a candidate in subsequent 
Candidate Notices of Reviews (74 FR 57804, November 9, 2009; 75 FR 
69222, November 10, 2010; 76 FR 66370, October 26, 2011).

Background

    It is our intent to discuss below only those topics directly 
relevant to the proposed listing of the Gierisch mallow as endangered 
and the proposed critical habitat designation.

Species Information

    Gierisch mallow is a perennial, flowering member of the mallow 
family. It produces few to many stems from a woody caudex (short, 
thickened, woody stem that is usually subterranean or at ground level). 
The stems are 43 to 103 centimeters (cm) (17 to 41 inches (in)) tall, 
and are often dark red-purple. The foliage is bright green and glabrous 
(not hairy). The leaf blades are 1.2 to 4 centimeters (cm) (0.47 to 
1.57 inches (in)) long; 1 to 5 cm (0.4 to 1.9 in) wide; and usually 
longer than wide. The leaves are usually flat and egg-shaped; the leaf 
base is heart-shaped to truncate, with 3 to 5 lobes. The inflorescence 
is compound, with more than one flower per node. The outer envelope of 
the flower is 0.5 to 1.0 cm (0.2 to 0.4 in) long, green, and uniformly 
glabrous, and the orange petals are 1.5 to 2.5 cm (0.6 to 0.98 in) long 
(Atwood and Welsh 2002, p. 161).
    Gierisch mallow was named as a unique, distinct species in 2002 
(Atwood and Welsh 2002, p. 159). This species of mallow is 
distinguished from similar species, such as Sphaeralcea rusbyi (Rusby's 
globemallow), by the glabrous (smooth) foliage, few or no stellate 
(star-shaped) hairs restricted to the leaf margins, larger flowers, and 
restricted range and habitat.
    Another closely related species is S. moorei (Moore's globemallow); 
distinguishing characters are the 3 to 5-parted narrow lobes, bright 
green leaves, and different habitat. As discussed by Atwood and Welsh 
(2002, p. 159), the genus Sphaeralcea consists of taxa whose 
morphological distinctions are compromised by overlap of many 
characters. The characteristics of the mature fruiting carpels (seed-
bearing structures) are one of the more important distinguishing 
characters, but specimens were rarely collected with mature carpels. 
Atwood and Welsh (2002, pp. 161-163) collected globemallow species in 
northern Arizona and southern Utah, and reviewed previous collections. 
The characteristics described in their 2002 taxonomic key allow for the 
discrimination of the related and similar taxa known to occur in 
southern Utah and adjacent northern Arizona, thus making Gierisch 
mallow a species and, therefore, a listable entity under the Act. The 
work was published in the peer-reviewed journal Novon, which publishes 
short articles with the primary purpose of the establishment of 
nomenclature (scientific naming) of vascular plants. Dr. Atwood and Dr. 
Welsh are very familiar with the flora of Utah; Dr. Atwood is the 
Collections Manager of the S. L. Welsh Herbarium, and Dr. Welsh is 
Emeritus Curator of Vascular Plants at Brigham Young University, Utah. 
After careful review of the 2002 Atwood and Welsh publication and its 
recognition by the Integrated Taxonomic Information System (ITIS 2012) 
and its inclusion in the Utah Rare Plant Guide (Utah Rare Plants 2012), 
it is our conclusion that Gierisch mallow is a valid species because 
the characteristics described above can be used to distinguish this 
species from similar species. We also consider it a separate species 
due to its acceptance in peer-reviewed literature and recognition by 
taxonomic authorities, as described above.

Biology, Habitat, and the Current Range

    Gierisch mallow is only found on gypsum outcrops associated with 
the Harrisburg Member of the Kaibab Formation in northern Mohave 
County, Arizona, and adjacent Washington County, Utah (Atwood and Welsh 
2002, p. 161). The Harrisburg Member is the most recent (topmost) 
exposed geologic layer of the Kaibab Formation. The Harrisburg Member 
is known for its soils containing high levels of gypsum (gypsiferous 
soils) (Biek and Hayden 2007, p. 58). The Kaibab Formation comprises a 
continuous layer of exposed limestone rock in the Grand Canyon region 
(USGS 2012, p. 1). The surrounding plant community is warm desertscrub 
(Mojave desertscrub). Very little is known about the life history of 
the Gierisch mallow, as it was only recently described. The species may 
be perennial because it is woody at the base and the same individuals 
have been observed for more than one year. It dies back to the ground 
during the winter and re-sprouts from the base during late winter and 
spring (January to March), depending on daytime temperatures and 
rainfall. Information from the Bureau of Land Management (BLM) 
indicates that many of the Gierisch mallow populations occur on 
hillsides or steep slopes. The pollination system (self-pollinated or 
obligate out-crosser), seed dispersal mechanisms, and the conditions 
under which seeds germinate are not known. Although we do not know how 
the species is pollinated, other species of the genus Sphaeralcea 
(globemallows) are pollinated by Diadasia diminuta (globemallow bee), 
which specializes in pollinating plants of this genus. Globemallow bees 
are considered important pollinators for globemallows (Tepedino 2010, 
p. 2). These solitary bees, as well as other Diadasia species, are 
known to occur within the range of the Gierisch mallow (Sipes and 
Tepedino 2005, pp. 490-491; Sipes and Wolf 2001, pp. 146-147), so it is 
reasonable to assume that they are potential pollinators of Gierisch 
mallow and other associated vegetation in the surrounding community. 
Winter rainfall in 2008 produced many seedlings of Gierisch mallow, 
indicating that they grow from seeds stored in the seed bank (Hughes 
2009, p. 13). Higher densities of seedlings were located within known 
locations in Arizona and Utah after these winter rain events. 
Additionally, young plants have been observed on two reclaimed areas 
within an active gypsum mine (Service 2008a, p. 1), further indicating 
that seeds are stored in the seed bank; however, we do not know the 
long-term viability of these plants due to the disruption of the 
original soil composition. Furthermore, Hughes (2011, p. 7) has 
documented a decline in the numbers of plants in both of the two 
reclaimed areas over the last 5 years.
    We have no information on the historical range of this species 
because it is a newly discovered plant. Currently, there are 18 known 
populations of the Gierisch mallow restricted to less than 
approximately 186 ha (460 ac) in Arizona and Utah. The main populations 
in Arizona are located south of the Black Knolls, approximately 19.3 km 
(12 mi) southwest of St. George, Utah, with the southernmost population 
of this group being on the edge of Black Rock Gulch near Mokaac 
Mountain. There is another population approximately 4.8 kilometers (km) 
(3 miles (mi)) north of the Black Knolls, on Arizona State Land 
Department (ASLD) lands near the Arizona/Utah State line. The Utah 
population is located on BLM lands within 3.2 km (2 mi) of the Arizona/
Utah State line, near the Arizona population on ASLD land.
    There are no other known populations of the Gierisch mallow. We 
theorized that, because gypsum outcrops associated with the Harrisburg 
Member are scattered throughout BLM lands in northern Arizona and 
southern Utah, additional populations may exist. Dr. Atwood and Dr. 
Welsh conducted

[[Page 49897]]

extensive surveys in these areas because numerous other rare plant 
species are associated with these landforms (Atwood 2008, p. 1). One 
record of a Gierisch mallow from the Grand Canyon-Parashant National 
Monument was presented to us (Fertig 2012, p. 3); however, after 
careful scrutiny, Johnson and Atwood (2012, p. 1) determined that this 
record is actually Rusby's mallow and not Gierisch mallow.

Status and Population Estimates

    Atwood (2008, p. 1), and later Hughes (Service 2008a, p. 1), 
estimated the population size of the Gierisch mallow from four of the 
Arizona locations. These populations are referred to as ``Hills.'' 
There are a total of 18 populations rangewide, with seventeen 
populations on lands managed by the BLM, and 1 on lands managed by the 
ASLD. Seventeen populations occur in Arizona, and one occurs in Utah.
    Atwood and Hughes' population estimates were simple visual 
estimates and have only been conducted for four of the 17 populations. 
These estimates are presented in Table 1 for the areas surveyed in 
Arizona. Hughes (2012, pp. 12-14) established belt transects on four of 
the ``Hills'' (Hills 1, 2, 4, and 5) and began to count the number of 
individuals. There is a population on Hill 3, but there are no 
estimates for it. Data in Table 1 are from files in BLM's St. George 
Field Office and the Service's Arizona Ecological Services Field 
Office. The actual transect counts appear in Table 1 in bold, in 
parentheses. Surveys estimate total population size to be between 7,000 
and 12,000 individuals in Arizona.

                                     Table 1--Population Numbers for Gierisch Mallow From Four Locations in Arizona
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             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).
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* These sites were visited in 2011, and Gierisch mallow plants were observed; however, no data were collected.

    Total population size in Utah was estimated to be approximately 200 
individuals in 2005 (Franklin 2007, p. 1). In spring 2008 and 2009, 
Hughes (2008a, p. 12; Hughes 2009, p. 15) conducted more extensive 
surveys of gypsiferous soils in Utah and estimated the population to be 
between 5,000 and 8,000 individuals. The Service plant ecologist and 
staff from the BLM's Arizona Strip Field Office visited all of the 
known locations in February 2008 (Service 2008a, p. 1). Population 
estimates were not made at this time because the plants were just 
emerging from winter dormancy, but there were plants present at all of 
the known locations visited.
    Since surveys began, no new populations have been found outside of 
the known areas. In addition to the information provided in Table 1, 
Hughes (2008a, p. 12) reported counts for transects on two 
rehabilitated sites within the Western Mining and Minerals, Inc., 
gypsum operation on and near Hill 4, where 85 and 60 plants were 
counted on the two transects in 2008. These plants are reestablishing 
themselves in the reclaimed areas from the original seed bank. Hughes 
(2009, p. 14) counted 50 and 32 plants on these sites in 2009. In 2011, 
Hughes (2012, p. 7) completed transect surveys on the same reclaimed 
sites as he did in 2008 and 2009, and counted 67 plants on one 
rehabilitated site and 1 plant on the other rehabilitated site. We do 
not have any information to indicate why there was a substantial 
decrease in plant numbers at these reclaimed areas. Because the 
Gierisch mallow it mostly only found in gypsiferous soils, it is 
possible that they are declining due to disruption of the original soil 
composition in these reclaimed soils. Outside of the reclaimed areas, 
some populations of the Gierisch mallow appear to be fluctuating 
annually according to data provided by Hughes (2011, pp. 4-7). Some 
populations appear to be decreasing, others have shown slight 
increases, and some populations have remained stable (Hughes 2011, pp. 
4-7).

Summary of Factors Affecting the Species

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR part 424, set forth the procedures for adding 
species to the Federal Lists of Endangered and Threatened Wildlife and 
Plants. Under section 4(a)(1) of the Act, we may list a species based 
on any of the following five factors: (A) The present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; and (E) other natural or manmade 
factors affecting its continued existence. Listing actions may be 
warranted based on any of the above threat factors, singly or in 
combination. Each of these factors is discussed below.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Because the Gierisch mallow has a limited range and distribution, 
including being found in a specific soil composition (gypsum outcrops), 
it is highly susceptible to habitat destruction and modification. 
Specifically, habitat destruction or modification resulting from mining 
operations, recreational activities, and wildfires associated with the 
spread of nonnative grass species, are threats to the Gierisch mallow.
Mining
    Gypsum mining is an ongoing source of habitat modification for the 
Gierisch mallow in Arizona. Gypsum is used in construction (including 
the manufacturing of drywall), and for a variety of agricultural 
purposes. Gypsum deposits are found at various depths within the 
Harrisburg Member. Many of the most valuable gypsum deposits are not at 
ground level. This means that surface materials need to be removed and 
stockpiled, while the subsurface gypsum is mined. The stockpiled 
surface material is then used to reclaim the area after the gypsum has 
been removed. Because all the topsoil is temporarily removed, gypsum 
mining temporarily removes the plant's habitat and any plants growing 
in the affected area. Although the topsoil is replaced, the original 
soil composition is altered; therefore, the reclaimed soils do not 
contain the original gypsum

[[Page 49898]]

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

[[Page 49899]]

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

[[Page 49900]]

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

Other Human Effects

    The same areas in Utah that are subjected to unauthorized OHV use 
are also used for target shooting and trash dumping. Evidence of both 
of these activities was present in Utah during the February 2008 visit. 
There was one large appliance dumped near the population, obviously 
used for target practice (Service 2008a, p. 1). People engaging in 
target shooting near the population degrade habitat by trampling the 
soil and plants, and by driving vehicles on the habitat to access areas 
for target shooting. The unauthorized use of BLM lands for these 
activities can contribute to the degradation of habitat for the 
Gierisch mallow by causing the same direct and indirect effects 
described above for OHV use. It is also possible that trash dumping can 
lead to soil contamination, which would most likely not be beneficial 
to the species.

[[Page 49901]]

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

[[Page 49902]]

significant threat. Destruction and modification of habitat for the 
Gierisch mallow are anticipated to result in a significant decrease in 
both the range of the species and the size of the population of the 
species.
    Mining activities impacted Gierisch mallow habitat in the past and 
will continue to be a threat in the future to the species' habitat 
throughout its range. All of the populations and habitat are located on 
BLM and ASLD lands, which have an extensive history of, and recent 
successful exploration activities for, gypsum mining. Two of the 
eighteen populations are located in the immediate vicinity of gypsum 
mining, including the Black Rock Gypsum Mine which has an approved 
Mining Plan of Operation to expand into the largest Gierisch mallow 
population. Gypsum mining is expected to continue and expand in the 
near future (Cox 2011b, p. 1; Dixon 2012, p. 1). Considering the small 
area of occupied habitat immediately adjacent to existing gypsum mines, 
anticipated future mining will result in the loss of habitat for these 
populations in the future, and these two populations comprise more than 
50 percent of the entire species' distribution.
    Although livestock do not typically eat Gierisch mallow, livestock 
grazing can affect Gierisch mallow habitat more significantly during 
drought years, as livestock move into the Gierisch mallow habitat 
searching for forage. Additionally, livestock have been implicated in 
spreading nonnative, invasive species such as red brome and cheatgrass, 
although we do not know the extent to which livestock contribute to the 
spread of these two nonnative grasses.
    Red brome and cheatgrass are documented to occur in all 18 
populations of the Gierisch mallow, although mostly after wet rain 
years. The threat of fire caused by annual nonnative species invasions 
is exacerbated by mining activities, livestock grazing, and recreation 
activities. Therefore, we conclude that Gierisch mallow and its habitat 
face significant threats as a result of habitat loss and modification.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The Gierisch mallow is not typically a plant of horticultural 
interest; however, we do have information regarding possible seed 
collection from wild plants on BLM and ASLD department lands for 
commercial sale (Roth 2011, p. 1). Collection of seeds from both BLM 
and ASLD is prohibited, and only the BLM offers a special permit to 
collect seeds of candidate species. Each respective land management 
agency referred the matter to its law enforcement branches. Because 
collection is restricted, and collection permits are only issued for 
scientific research or educational purposes by the Arizona Department 
of Agriculture (Austin 2012, p. 1), we do not expect collection to be a 
regular occurrence. See Factor D discussion, below, for a complete 
description of when permits are issued for collection of the Gierisch 
mallow. We are not aware of any other instances when the Gierisch 
mallow has been collected from the wild other than as a voucher 
specimen (specimen collected for an herbarium) (Atwood and Welsh 2002, 
p. 161). Therefore, we conclude that overutilization for commercial, 
recreational, scientific, or educational purposes is not a threat to 
the Gierisch mallow now, and we have no information to indicate that it 
will become a threat in the future.

C. Disease or Predation

    The flowering stalks of the Gierisch mallow are eaten by livestock. 
All of the Gierisch mallow populations on BLM lands are within grazing 
allotments. Herbivory has been documented by a BLM ecologist (Service 
2008a, p. 1), and Atwood (2008, p. 1). Hughes has found that the mallow 
is eaten during drought years, when other forage is reduced or 
unavailable. The plant is also grazed during non-drought times, but not 
as heavily. The Gierisch mallow plants located near water sources 
(stock tanks and drinkers) are also heavily browsed (Hughes 2008b, p. 
1) because livestock tend to congregate near sources of water. When 
Atwood (2008, p. 1) was surveying the populations to collect fruit of 
the Gierisch mallow during drought years, Atwood was unable to locate 
any fruit because all of the flowering stalks had been consumed by 
livestock. The effect of sporadic grazing of plants is unknown, but 
persistent grazing can reduce the reproductive output of the plants, 
potentially reducing the size of the smaller populations, especially 
during drought years. As previously described under Factor A, livestock 
do not typically spend significant amounts of time in Gierisch mallow 
habitat, due to the hillsides and steep slopes that the Gierisch mallow 
typically inhabits, although livestock will enter into Gierisch mallow 
habitat during drought periods.
    Herbivory from livestock is not a significant threat, because of 
the steepness of the terrain on which the plant is typically located 
and because the herbivory that does occur is mostly limited to drought 
years when the plant is not overly abundant. Although herbivory is 
likely to continue to some degree, especially during drought years, 
recruitment from the seed bank has been documented in recent years, 
indicating that herbivory by livestock is not likely to diminish the 
overall fitness and reproductive ability of the larger Gierisch mallow 
populations. Smaller populations of the Gierisch mallow are likely to 
be more susceptible to the effects of herbivory during drought years.
    We have no information that disease is affecting the plants. 
Therefore, based on the best available information, we conclude that 
disease is not a threat to the Gierisch mallow, and that predation 
(herbivory, along with some related trampling) is a moderate threat 
during drought years.

D. The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether existing regulatory 
mechanisms are inadequate to address or alleviate the threats to the 
species discussed under the other factors. Section 4(b)(1)(A) of the 
Act requires the Service to take into account ``those efforts, if any, 
being made by any State or foreign nation, or any political subdivision 
of a State or foreign nation, to protect such species * * *.'' In 
relation to Factor D under the Act, we interpret this language to 
require the Service to consider relevant Federal, State, and tribal 
laws, plans, regulations, and other such mechanisms that may minimize 
any of the threats we describe in threat analyses under the other four 
factors, or otherwise enhance conservation of the species. We give 
strongest weight to statutes and their implementing regulations and to 
management direction that stems from those laws and regulations. An 
example would be State governmental actions enforced under a State 
statute or constitution, or Federal action under statute.
    Having evaluated the significance of the threat as mitigated by any 
such conservation efforts, we analyze under Factor D the extent to 
which existing regulatory mechanisms are inadequate to address the 
specific threats to the species. Regulatory mechanisms, if they exist, 
may reduce or eliminate the impacts from one or more identified 
threats. In this section, we review existing State and Federal 
regulatory mechanisms to determine whether they effectively reduce or 
remove threats to the Gierisch mallow.

[[Page 49903]]

State Regulations
    Over 90 percent of the species' known habitat and over 50 percent 
of known populations are located on BLM and ASLD lands in Arizona 
mining claims. There are no laws protecting the Gierisch mallow's 
habitat on State or private lands in Arizona. This species is currently 
protected by the Arizona Native Plant Act (ANPA). Since it became a 
candidate species in 2008, Arizona protects the Gierisch mallow as 
``Highly Safeguarded.'' Plants in the ``Highly Safeguarded'' category 
under the ANPA include ``plants resident to this State and listed as 
endangered, threatened, or category 1 in the Federal endangered species 
act of 1973'' (ANPA 1997, p. 4). The ANPA controls collecting, and 
limited scientific collection of ``Highly Safeguarded'' species is 
allowed for research and educational purposes (Austin 2012, p. 1), but 
the ANPA provides no protection for plant habitat. Private landowners 
are required to obtain a salvage permit to remove plants protected by 
the ANPA; however, there are no known private lands containing the 
Gierisch mallow. Furthermore, seed collection on ASLD lands is 
prohibited, as described above under Factor B, although there are no 
ASLD regulations protecting habitat for the Gierisch mallow. While the 
ANPA may be effectively protecting the species from direct threats, it 
is not designed to protect the species' habitat.
    In addition to the Black Rock Gypsum Mine on BLM lands in Arizona, 
discussed below, the Georgia-Pacific Mine on ASLD Land is in close 
proximity to a large Gierisch mallow population. The ASLD has fairly 
strict reclamation provisions and bonding requirements when they 
approve a Mining Plan of Operation; however, any decision that the ASLD 
makes on whether or not to lease land is based strictly on the benefit 
of the State Trust. The ASLD would not deny a mine, or any other 
project, based on the presence of an endangered or threatened species; 
however, they can have stipulations written into the ASLD lease or the 
mining company's reclamation plan that would require them to make 
allowances for federally listed species (Dixon 2012, p. 1). With listed 
plants, these stipulations can include seed collection or transplanting 
plants from the footprint of the mine; however, because the Gierisch 
mallow is not currently listed, the ASLD does not currently have to 
include these stipulations in reclamation plans. Because the ASLD does 
not have to require mitigation stipulations to protect the Gierisch 
mallow or its habitat, we conclude that this regulatory mechanism is 
insufficient to protect the Gierisch mallow from threats to its habitat 
associated with mining on ASLD lands.
Federal Regulations

Mining Activities on BLM Lands

    We have previously identified habitat loss associated with gypsum 
mining as a potential threat to the species. On BLM-managed lands, this 
mining occurs pursuant to the Mining Law of 1872 (30 U.S.C. 21 et 
seq.), which was enacted to promote exploration and development of 
domestic mineral resources, as well as the settlement of the western 
United States. It permits U.S. Citizens and businesses to freely 
prospect hardrock (locatable) minerals and, if a valuable deposit is 
found, file a claim giving them the right to use the land for mining 
activities and sell the minerals extracted, without having to pay the 
Federal government any holding fees or royalties (GAO 1989, p. 2). 
Gypsum is frequently mined as a locatable mineral, and gypsum mining 
is, therefore, subject to the Mining Law of 1872. The BLM implements 
the Mining Law through Federal regulations, 43 CFR part 3800.
    The operators of mining claims on BLM lands must reclaim disturbed 
areas (Cox 2012, p. 1). The BLM's regulations also require the 
mitigation of mining operations so that operations do not cause 
unnecessary or undue degradation of public lands. Unnecessary or undue 
degradation is generally referred to as ``harm to the environment that 
is either unnecessary to a given project or violates specified 
environmental protection statutes'' (USLegal, 2012, p. 1). Furthermore, 
it is unclear what specific activities would constitute unnecessary or 
undue degradation in relation to the Gierisch mallow and its habitat.
    The Gierisch mallow is listed as a BLM sensitive species in both 
Arizona and Utah. Sensitive species designation on BLM lands is 
afforded through the Special Status Species Management Policy Manual 
6840 (BLM 2008B, entire) which states that on BLM-administered 
lands, the BLM shall manage Bureau sensitive species and their habitats 
to minimize or eliminate threats affecting the status of the species, 
or to improve the condition of the species habitat (BLM 2008B, pp. 37-
38).
    The BLM's regulations do not prevent the Black Rock Gypsum Mine's 
expansion into Gierisch mallow habitat, but the BLM could require 
mitigation measures to prevent unnecessary or undue degradation from 
mining operations. For example, the BLM required seed collection of the 
Gierisch mallow by the mine operators to aid in reestablishing the 
species in reclaimed areas of the Black Rock Gypsum Mine in the 
recently approved expansion of the Black Rock Gypsum Mine.
    The BLM has required seed collection as a result of these 
operations; however, we do not know if enough seeds can be collected to 
reestablish pre-mining population numbers in reclaimed areas. We are 
unsure of the ability to reestablish healthy populations in reclaimed 
areas because the number of plants observed growing from the seed bank 
in reclaimed soils has decreased since they were first observed. 
Furthermore, we do not know the long-term viability of these plants or 
any plants grown from collected seeds. Therefore, we find that the BLM 
Federal regulatory measures are not adequate to address the loss of 
habitat caused by gypsum mining.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

Small Population Size
    As previously described (see the Biology, Habitat, and the Current 
Range section), the entire range of the Gierisch mallow is located in 
an area of less than 186 ha (460 ac) throughout Arizona and Utah. 
Within this range, each of the 18 individual populations' habitat areas 
is very small, ranging from 0.003 ha (0.01 ac) to 38.12 ha (94.36 ac). 
The Gierisch mallow can be dominant in small areas of suitable habitat, 
containing thousands of individuals. However, the small areas of 
occupation and the narrow overall range of the species make it highly 
susceptible to stochastic events that may lead to local extirpations.
    Mining, or a single random event such as a wildfire (see Factor A), 
could extirpate an entire or substantial portion of a population given 
the small area of occupied habitat. Species with limited ranges and 
restricted habitat requirements also are more vulnerable to the effects 
of global climate change (see the ``Climate Change and Drought'' 
section below; IPCC 2002, p. 22; Jump and Penuelas 2005, p. 1016; 
Maschinski et al. 2006, p. 226; Krause 2010, p. 79).
    Overall, we consider small population size and restricted range 
intrinsic vulnerabilities to the Gierisch mallow that may not rise to 
the level of a threat on its own. However, the small population sizes 
and restricted range of this species increase the risk of extinction to 
the Gierisch mallow populations in conjunction with the effects of 
global climate change (see below) and the potential for stochastic 
extinction events such as mining and

[[Page 49904]]

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

[[Page 49905]]

Summary of Factor E
    We assessed the potential risks of small population size to the 
Gierisch mallow. The Gierisch mallow has a highly restricted 
distribution and exists in 18 populations scattered over an area that 
covers approximately 460 ac (186 ha). Individual populations occupy 
very small areas with large densities of plants. We conclude that 
stochastic events could impact a significant portion of a population. 
Small populations that are restricted by habitat requirements also are 
more vulnerable to the effects of climate change, such as prolonged 
droughts and increased fire frequencies. Although small population size 
and climate change make the species intrinsically more vulnerable, we 
are uncertain whether they would rise to the level of threat by 
themselves. However, when combined with the threats listed under Factor 
A (mining operations; livestock grazing; recreation activities; and 
nonnative, invasive species), and the lack of existing regulatory 
mechanisms to alleviate those threats, the small population size and 
restricted range of the Gierisch mallow are likely to significantly 
increase the level of the above-mentioned threats.

Proposed Determination

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

[[Page 49906]]

significant portion of that range. Accordingly, our assessment and 
proposed determination applies to the species throughout its entire 
range.
    Listing the Gierisch mallow as a threatened species is not the 
appropriate determination because the ongoing threats described above 
are severe enough to increase the immediate risk of extinction. The 
gypsum mining operations are anticipated to resume full operations and 
expansions in as few as 3 to 10 years, although the mining operations 
could occur sooner. Grazing is ongoing throughout the range of the 
Giersich mallow, and climate change is anticipated to cause more 
periods of drought, when livestock graze more heavily on the Gierisch 
mallow. Additionally, red brome and cheatgrass are abundant throughout 
the area, and while they are typically more abundant in the Gierisch 
mallow habitat after wet years, recent wet years have left an abundant 
crop of red brome in Gierisch mallow habitat. Wildfires could occur at 
any time as a result of the proliferation of these invasive species. 
All of these factors combined lead us to conclude that the threat of 
extinction is high and immediate, thus warranting a determination of 
endangered rather than threatened for the Gierisch mallow.

Available Conservation Measures

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

[[Page 49907]]

in knowing violation of any State law or regulation, including State 
criminal trespass law. Certain exceptions to the prohibitions apply to 
agents of the Service and State conservation agencies.
    This species is currently protected by the Arizona Native Plant Act 
(ANPA). Since it became a candidate species in 2008, Arizona protects 
the Gierisch mallow as ``Highly Safeguarded.'' Plants in the ``Highly 
Safeguarded'' category under the ANPA include ``plants resident to this 
State and listed as endangered, threatened, or category 1 in the 
Federal endangered species act of 1973'' (ANPA 1997, p. 4). The ANPA 
controls collecting, and limited scientific collection of ``Highly 
Safeguarded'' species is allowed (Austin 2012, p. 1), but the ANPA 
provides no protection for plant habitat. Protection under the Act as 
an endangered species will, therefore, offer additional protections to 
this species.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered and threatened plant species under certain 
circumstances. Regulations governing permits are codified at 50 CFR 
17.62 for endangered plants, and at 17.72 for threatened plants. With 
regard to endangered plants, a permit must be issued for the following 
purposes: enhancement of propagation or survival of the species.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of species 
proposed for listing. The following activities could potentially result 
in a violation of section 9 of the Act; this list is not comprehensive: 
Unauthorized collecting, handling, possessing, selling, delivering, 
carrying, or transporting of the species, including import or export 
across State lines and international boundaries, except for properly 
documented antique specimens of these taxa at least 100 years old, as 
defined by section 10(h)(1) of the Act.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Arizona 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). 
Requests for copies of the regulations concerning listed plants and 
general inquiries regarding prohibitions and permits may be addressed 
to the U.S. Fish and Wildlife Service, Endangered Species Permits, 
Southwest Regional Office, P.O. Box 1306, Albuquerque, NM, 87103-1306; 
telephone (505) 248-6911; facsimile (505) 248-6915.

Critical Habitat

Prudency Determination

    Section 4 of the Act, as amended, and implementing regulations (50 
CFR 424.12), require that, to the maximum extent prudent and 
determinable, the Secretary designate critical habitat at the time the 
species is determined to be endangered or threatened. Our regulations 
at 50 CFR 424.12(a)(1) state that the designation of critical habitat 
is not prudent when one or both of the following situations exist: (1) 
The species is threatened by taking or other activity and the 
identification of critical habitat can be expected to increase the 
degree of threat to the species; or (2) the designation of critical 
habitat would not be beneficial to the species.
    There is no indication that the Gierisch mallow threatened by 
collection, and there are no likely increases in the degree of threats 
to the species if critical habitat were designated. This species is not 
the target of collection, and the areas we propose for designation 
either have restricted public access (mine sites) or are already 
readily open to the public (BLM land). None of the threats identified 
to the species are associated with human access to the sites, with the 
exception of the threats associated with recreational activities on BLM 
land. This threat, or any other identified threat, is not expected to 
increase as a result of critical habitat designation because the BLM 
cannot control unauthorized recreational activities, and the 
designation of critical habitat would not change the situation.
    In the absence of finding that the designation of critical habitat 
would increase threats to a species, if there are any benefits to a 
critical habitat designation, then a prudent finding is warranted. The 
potential benefits of critical habitat to the Gierisch mallow include: 
(1) Triggering consultation under section 7 of the Act, in new areas 
for actions in which there may be a Federal nexus where it would not 
otherwise occur, because, for example, Federal agencies were not aware 
of the potential impacts of an action on the species; (2) focusing 
conservation activities on the most essential features and areas; (3) 
providing educational benefits to State or county governments, or 
private entities; and (4) preventing people from causing inadvertent 
harm to the species. Therefore, because we have determined that the 
designation of critical habitat would not likely increase the degree of 
threat to any of the species and may provide some measure of benefit, 
we find that designation of critical habitat is prudent for the 
Gierisch mallow.

Background

    It is our intent to discuss below only those topics directly 
relevant to the designation of critical habitat for the Gierisch mallow 
in this section of the proposed rule. For a complete description of the 
life history and habitat needs of the Gierisch mallow, see the Species 
Information section above.
    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation does not allow the government 
or public

[[Page 49908]]

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

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographic area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. 
These include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographic, and ecological 
distributions of a species.
    We derive the specific physical or biological features required for 
the Gierisch mallow from studies of this species' habitat, ecology, and 
life history as described below. We have determined that the following 
physical or biological features are essential for the Gierisch mallow.

Space for Individual and Population Growth and for Normal Behavior

    The Gierisch mallow has a limited distribution; it is only found in 
a small area in Utah and Arizona. Within these areas, the Gierisch 
mallow requires appropriate soils, associated formations, slope, 
drainage, and plant community types within the landscape to provide 
space for individual growth and to provide food, water, air, light, 
minerals, or other nutritional or physiological requirements. In both 
Arizona and Utah, the Gierisch mallow is found in gypsiferous outcrops 
of the Harrisburg Member of the Kaibab Formation. In Arizona, these 
sites may be affiliated

[[Page 49909]]

with the following gypsiferous soil series:
     Nikey-Ruesh complex,
     Gypill-Hobog complex,
     Hobog-Tidwell complex,
     Hobog-Grapevine complex,
     Grapevine-Shelly complex,
     Hindu-Rock outcrop-Gypill complex,
     Cave-Harrisburg-Grapevine complex, and
     Grapevine-Hobcan complex (Service unpublished data).

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

     Table 2--Vegetation Associated With the Gierisch Mallow Habitat
                        (NatureServe 2011, p. 2)
------------------------------------------------------------------------
                                                        Other common
  Codominant and diagnostic    Woody plant species    nonwoody species
           species                 associates            associates
------------------------------------------------------------------------
Coleogyne ramosissima         Acacia greggii        Achnatherum
 (Blackbrush).                 (Catclaw acacia).     hymenoides (Indian
                                                     ricegrass).
Eriogonum fasciculatum        Canotia holacantha    A. speciosum (Desert
 (Buckwheat).                  (Crucifixion thorn).  needlegrass).
Ephedra nevadensis (Nevada    Ephedra nevadensis    Muhlenbergia porteri
 jointfir).                    (Nevada jointfir).    (Bush muhly).
Grayia spinosa (Spiny         Ephedra torreyana     Eriogonum sp.
 hopsage).                     (Desert Mormon tea).  (Various annual
                                                     buckwheats).
                              Encelia farinosa      Pleuraphis jamesii
                               (Brittlebush).        (James' galleta).
                              Purshia stansburiana  Poa secunda
                               (Stansbury            (Sandberg
                               cliffrose).           bluegrass).
                              Gutierrezia
                               sarothrae (Broom
                               snakeweed).
------------------------------------------------------------------------

    Depending on the moisture regime, the Gierisch mallow also can be 
associated with native annuals that are often ephemeral (seen only in 
the spring) and, like many Mohave Desert plant species, seasonally 
abundant based on climatic conditions.
    Therefore, based on the information above, we identify gypsum soils 
found in the Harrisburg Member of the Kaibab Formation from 755 to 
1,148 m (2,477 to 3,766 ft) and with the appropriate native vegetation 
communities to be an essential physical or biological feature for this 
species.

Sites for Reproduction, Germination, Seed Dispersal or Pollination

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

[[Page 49910]]

1,200 m (3,937 ft) (Gathmann and Tscharntke 2002, p. 760; Greenleaf et 
al. 2007, p. 593).
    Therefore, based on the information above, we identify pollinators 
and associated appropriate native plant communities within 1,200 m 
(3,937 ft) of occupied sites to be an essential physical or biological 
feature for this species.

Habitats Protected From Disturbance or Representative of the 
Historical, Geographic, and Ecological Distributions of the Species

    The species' known range has not contracted or expanded since the 
species was described in 2002. All sites contribute to ecological 
distribution and function for this species by providing representation 
across the species' limited current range. It is important to minimize 
surface-disturbing activities throughout the limited range of the 
Gierisch mallow. Surface disturbing activities, such mining and 
recreation activities (OHV and impacts related to target shooting), 
remove the unique soil composition and associated vegetation 
communities that the Gierisch mallow needs.
    Additionally, it is important to have areas in all the units free 
of nonnative, invasive species, such as red brome and cheatgrass. As 
previously discussed in Factor A, above, both cheatgrass and red brome 
tend to not grow well in gypsum outcrops in normal (dry) rainfall 
years; however, they can be abundant in Gierisch mallow habitat during 
wet years. Invasions of annual, nonnative species, such as cheatgrass, 
are well documented to contribute to increased fire frequencies (Brooks 
and Pyke 2002, p. 5; Grace et al. 2002, p. 43; Brooks et al. 2003, pp. 
4, 13, 15). The disturbance caused by increased fire frequencies 
creates favorable conditions for increased invasion by cheatgrass. The 
end result is a downward spiral, where an increase in invasive species 
results in more fires, more fires create more disturbances, and more 
disturbances lead to increased densities of invasive species. The risk 
of fire is expected to increase from 46 to 100 percent when the cover 
of cheatgrass increases from 12 to 45 percent or more (Link et al. 
2006, p. 116). The invasion of red brome into the Mojave Desert of 
western North America poses similar threats to fire regimes, native 
plants, and other federally protected species (Brooks et al. 2004, pp. 
677-678). Brooks (1999, p. 16) also found that high interspace biomass 
of red brome and cheatgrass resulted in greater fire danger in the 
Mojave Desert. Brooks (1999, p. 18) goes on to state that the 
ecological effects of cheatgrass and red brome-driven fires are 
significant because of their intensity and consumption of perennial 
shrubs.
    Imprecise forecasts of the impacts of climate change make the 
identification of areas that may become essential impractical at this 
time. Therefore, we have not identified additional areas outside those 
currently occupied where the species may move to, or be transplanted 
to, as a result of the impacts due to climate change.
    Based on the information above, we identify areas free of 
disturbance and areas with low densities or absence of nonnative, 
invasive species to be an essential physical or biological feature for 
this species.

Primary Constituent Elements for the Gierisch Mallow

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of the Gierisch mallow in areas occupied at the time of 
listing, focusing on the features' primary constituent elements. We 
consider primary constituent elements to be the elements of physical or 
biological features that provide for a species' life-history processes 
and are essential to the conservation of the species.
    Based on our current knowledge of the physical or biological 
features and habitat characteristics required to sustain the species' 
life-history processes, we determine that the primary constituent 
elements specific to the Gierisch mallow are:
    (1) Appropriate geological layers or gypsiferous soils, in the 
Harrisburg Member of the Kaibab Formation, that support individual 
Gierisch mallow plants or their habitat, within the elevation range of 
775 to 1,148 m (2,477 to 3,766 ft). Appropriate soils are defined as:
     Badland,
     Fluvaquents and Torrifluvents,
     Riverwash,
     Cave-Harrisburg-Grapevine complex,
     Grapevine-Hobcan complex,
     Nikey-Ruesh complex,
     Gypill-Hobog complex,
     Hobog-Tidwell complex,
     Hobog-Grapevine complex,
     Grapevine-Shelly complex, and
     Hindu-Rock outcrop-Gypill complex.
    (2) Appropriate Mojave desert scrub plant community and associated 
native species for the soil types at the sites listed in PCE 1.
    (3) The presence of insect visitors or pollinators, such as the 
globemallow bee and other solitary bees. To ensure the proper suite of 
pollinators are present, this includes habitat that provides nesting 
substrate for pollinators in the areas described in PCE 2.
    (4) Areas free of disturbance and areas with low densities or 
absence of nonnative, invasive plants, such as red brome and 
cheatgrass.
    With this proposed designation of critical habitat, we intend to 
identify the physical or biological features essential to the 
conservation of the species, through the identification of primary 
constituent elements sufficient to support the life-history processes 
of the species. All units proposed to be designated as critical habitat 
are currently occupied by the Gierisch mallow and contain the primary 
constituent elements sufficient to support the life-history needs of 
the species.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographic area occupied by the species at the time of 
listing contain features that are essential to the conservation of the 
species and which may require special management considerations or 
protection. The features essential to the conservation of this species 
may require special management considerations or protection to reduce 
the direct and indirect effects associated with the following threats: 
Habitat loss and degradation from mining operations; livestock grazing; 
recreation activities; and invasive plant species. Please refer to 
Factor A above for a complete description of these threats.
    Special management to protect the features essential to the 
conservation of the species from the effects of gypsum mining include 
creating managed plant preserves and open spaces, limiting disturbances 
to and within suitable habitats, and evaluating the need for and 
conducting restoration or revegetation of native plants in open spaces 
or plant preserves containing similar gypsum soils. Management 
activities that could ameliorate these threats include (but are not 
limited to) seed collection from the Gierisch mallow throughout its 
range, including those plants within the footprint of each mine. These 
seeds could be used to begin propagation studies to determine the long-
term viability of plants growing in reclaimed soils. Additionally, 
these seeds could be used to begin propagating plants to be planted in 
other gypsum deposits and to augment existing populations. Special 
management may be necessary to

[[Page 49911]]

protect features essential to the conservation of the Gierisch mallow 
from livestock grazing, including fencing populations; avoiding 
activities, such as water trough placement, that might concentrate 
livestock near or in occupied habitat; and removing livestock from 
critical habitat during the species' growing and reproductive seasons, 
especially during periods of flowering and fruiting. Special management 
that may be necessary to protect the features essential to the 
conservation of the Gierisch mallow from recreational activities 
includes directing recreational use away from and outside of critical 
habitat, fencing small populations, removing or limiting access routes, 
ensuring land use practices do not disturb the hydrologic regime, and 
avoiding activities that might concentrate water flows or sediments 
into critical habitat. Additionally, threats related to both control of 
nonnative, invasive species and fire suppression and fire-related 
activities resulting from the spread of nonnative, invasive species 
include:
     Crushing and trampling of plants from fire suppression and 
treatment activities;
     Damage to seedbank as a result of fire severity;
     Soil erosion; and
     An increase of invasive plant species that may compete 
with native plant species as a result of wildfires removing non-fire-
adapted native plant species or as a result of fire suppression 
equipment introducing invasive plant species.

Criteria Used To Identify Critical Habitat

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

[[Page 49912]]

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

Proposed Critical Habitat Designation

    We are proposing two units as critical habitat for Gierisch mallow. 
Both units are occupied and contain features that are essential to the 
conservation of Gierisch mallow. We mapped the units with a degree of 
precision commensurate with the available information and the size of 
the unit. The two areas we propose as critical habitat are the 
Starvation Point Unit and the Black Knolls Unit. The approximate area 
of each proposed 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     316 ha (782 ac)...  1,339 ha (3,309
                                                       ac).                                    ac).
Unit 2. Black Knolls............  3,586 ha (8,862     0.................  263 ha (651 ac)...  3,850 ha (9,513
                                   ac).                                                        ac).
                                 -------------------------------------------------------------------------------
    Totals......................  3,586 ha (8,862     1,022 ha (2,526     580 ac (1,434 ac).  5,189 ha (12,822
                                   ac).                ac).                                    ac).
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for Gierisch mallow, as 
follows.

Unit 1: Starvation Point

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

Unit 2: Black Knolls

    This unit consists of approximately 3,850 ha (9,513.30 ac) and 
occurs on land managed by both Arizona BLM (3,586.28 ha; 8,861.90 ac) 
and ASLD (263.62 ha; 651.41 acres). This unit is occupied at the time 
of listing and contains the features essential to the conservation of 
the species. Unit 2 contains the remaining 16 Gierisch mallow 
populations, including the largest population. Unit 2 is located south 
of I-15 as this highway crosses the State line of Arizona and Utah, and 
is bounded by Black Rock Gulch to the west and Mokaac Mountain to the 
south and east.
    The features essential to the conservation of the species may 
require special management considerations or protection to control 
invasive plant species, to control habitat degradation due to mining 
activities that disrupt the soil composition, and to maintain the 
identified associated vegetation and pollinators essential to the 
conservation

[[Page 49913]]

of the species. The largest population of Gierisch mallow occurs in the 
area of the proposed expansion of the Black Rock Gypsum Mine. As 
described in the proposed listing discussion above, grazing on BLM AZ 
lands typically occurs during the growing season for Gierisch mallow on 
all three BLM AZ allotments and is expected to modify the primary 
constituent elements, although some of the pastures are in a rest/
rotation system in which a pasture may see an entire year of rest 
before being grazed again.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th 
Cir. 2001)), and we do not rely on this regulatory definition when 
analyzing whether an action is likely to destroy or adversely modify 
critical habitat. Under the statutory provisions of the Act, we 
determine destruction or adverse modification on the basis of whether, 
with implementation of the proposed Federal action, the affected 
critical habitat would continue to serve its intended conservation role 
for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat, and actions 
on State, tribal, local, or private lands that are not federally funded 
or authorized, do not require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, or 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical or 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for Gierisch mallow. As 
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the 
species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Gierisch mallow. These activities include, but are 
not limited to, actions that would significantly alter soil composition 
that Gierisch mallow requires, including but not limited to mining 
operations, livestock grazing, and special use permits for recreation 
activities.

Exemptions

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

    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographic areas owned 
or controlled by the Department of Defense, or designated for its use, 
that are subject to an integrated natural resources management plan 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a benefit to 
the species for which critical habitat is proposed for designation.''

[[Page 49914]]

    There are no Department of Defense lands within the proposed 
critical habitat designation.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if he determines 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless he determines, based 
on the best scientific data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. In making that determination, the statute on its face, as well 
as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, or any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we identify 
the benefits of including the area in the designation, identify the 
benefits of excluding the area from the designation, and evaluate 
whether the benefits of exclusion outweigh the benefits of inclusion. 
If the analysis indicates that the benefits of exclusion outweigh the 
benefits of inclusion, the Secretary may exercise his discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the economic 
impacts of the proposed critical habitat designation and related 
factors. Potential land use sectors that may be affected by the 
critical habitat designation include mining, livestock operations, and 
OHV use, and recreation activities. We also consider any social impacts 
that might occur because of the designation.
    We will announce the availability of the draft economic analysis as 
soon as it is completed, at which time we will seek public review and 
comment. At that time, copies of the draft economic analysis will be 
available for downloading from the Internet at http://www.regulations.gov, or by contacting the Arizona Ecological Services 
Field Office directly (see FOR FURTHER INFORMATION CONTACT). During the 
development of a final designation, we will consider economic impacts, 
public comments, and other new information, and areas may be excluded 
from the final critical habitat designation under section 4(b)(2) of 
the Act and our implementing regulations at 50 CFR 424.19.
Exclusions Based on National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense where a national 
security impact might exist. In preparing this proposal, we have 
determined that the lands within the proposed designation of critical 
habitat for the Gierisch mallow are not owned or managed by the 
Department of Defense, and, therefore, we anticipate no impact on 
national security. Consequently, the Secretary does not propose to 
exert his discretion to exclude any areas from the final designation 
based on impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether the 
landowners have developed any habitat conservation plans or other 
management plans for the area, or whether there are conservation 
partnerships that would be encouraged by designation of, or exclusion 
from, critical habitat. In addition, we look at any tribal issues, and 
consider the government-to-government relationship of the United States 
with tribal entities. We also consider any social impacts that might 
occur because of the designation.
    We are not proposing any exclusions at this time from the proposed 
critical habitat designation under section 4(b)(2) of the Act based on 
partnerships, management, or protection afforded by cooperative 
management efforts.

Peer Review

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

Public Hearings

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

Required Determinations

Regulatory Planning and Review--Executive Orders 12866 and 13563

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

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as 
amended

[[Page 49915]]

by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 (5 U.S.C. 801 et seq.), whenever an agency must publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a certification statement of the 
factual basis for certifying that the rule will not have a significant 
economic impact on a substantial number of small entities.
    At this time, we lack the available economic information necessary 
to provide an adequate factual basis for the required RFA finding. 
Therefore, we defer the RFA finding until completion of the draft 
economic analysis prepared under section 4(b)(2) of the Act and 
Executive Order 12866. This draft economic analysis will provide the 
required factual basis for the RFA finding. Upon completion of the 
draft economic analysis, we will announce availability of the draft 
economic analysis of the proposed designation in the Federal Register 
and reopen the public comment period for the proposed designation. We 
will include with this announcement, as appropriate, an initial 
regulatory flexibility analysis or a certification that the rule will 
not have a significant economic impact on a substantial number of small 
entities accompanied by the factual basis for that determination.
    We have concluded that deferring the RFA finding until completion 
of the draft economic analysis is necessary to meet the purposes and 
requirements of the RFA. Deferring the RFA finding in this manner will 
ensure that we make a sufficiently informed determination based on 
adequate economic information and provide the necessary opportunity for 
public comment.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. We do not expect the designation of this proposed 
critical habitat to significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action, and 
no Statement of Energy Effects is required. However, we will further 
evaluate this issue as we conduct our economic analysis, and review and 
revise this assessment as warranted.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule would not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments because the lands being proposed for 
critical habitat designation are owned by the State of Arizona and the 
BLM. Neither of these government entities fit the definition of ``small 
governmental jurisdiction.'' Therefore, a Small Government Agency Plan 
is not required. However, we will further evaluate this issue as we 
conduct our economic analysis, and review and revise this assessment as 
warranted.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (Government Actions and 
Interference with Constitutionally Protected Private Property Rights), 
we will analyze the potential takings implications of designating 
critical habitat for Gierisch mallow in a takings implications 
assessment. Critical habitat designation does not affect landowner 
actions that do not require Federal funding or permits, nor does it 
preclude development of habitat conservation programs or issuance of 
incidental take permits to permit actions that do require Federal 
funding or permits to go forward.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 
proposed rule does not have significant Federalism effects. A 
Federalism summary impact statement is not required. In keeping with 
Department of the Interior and Department of Commerce policy, we 
requested information from, and coordinated development of, this 
proposed critical habitat designation with appropriate State resource 
agencies in Arizona and Utah. The designation of critical habitat in 
areas currently occupied by the Gierisch mallow imposes no additional 
restrictions to those currently in place and, therefore, has little 
incremental impact on State and local governments and their

[[Page 49916]]

activities. The designation may have some benefit to these governments 
because the areas that contain the physical or biological features 
essential to the conservation of the species are more clearly defined, 
and the elements of the features of the habitat necessary to the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist local governments in long-
range planning (rather than having them wait for case-by-case section 7 
consultations to occur).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. This 
proposed rule uses standard mapping technology and identifies the 
elements of physical or biological features essential to the 
conservation of the Gierisch mallow within the designated areas to 
assist the public in understanding the habitat needs of the species.

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

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

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

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

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized,
    (2) Use the active voice to address readers directly,
    (3) Use clear language rather than jargon,
    (4) Be divided into short sections and sentences, and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that are unclearly written, which sections or sentences 
are too long, the sections where you feel lists or tables would be 
useful, etc.

Government-to-Government Relationship With Tribes

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

References Cited

    A complete list of references cited in this rulemaking is available 
on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0049 and upon request from the Arizona Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).

Authors

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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


[[Page 49917]]


    Authority:  16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. Amend Sec.  17.12(h) by adding an entry for ``Sphaeralcea 
gierischii'' to the List of Endangered and Threatened Plants in 
alphabetical order under ``Flowering Plants.''


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic  range           Family            Status         When       Critical     Special
         Scientific name                Common name                                                                   listed      habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Sphaeralcea gierischii...........  Gierisch mallow.....  U.S.A (AZ, UT)......  Malvaceae...........  E             ...........     17.96(a)           NA
 
                                                                      * * * * * * *
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     3. In Sec.  17.96, amend paragraph (a) by adding an entry for 
``Sphaeralcea gierischii (Gierisch mallow),'' in alphabetical order 
under the family Malvaceae, to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Malvaceae: Sphaeralcea gierischii (Gierisch mallow)
    (1) Critical habitat units are depicted for Washington County, 
Utah, and Mohave County, Arizona, on the maps below.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of 
Gierisch mallow consist of the following components:
    (i) Appropriate geological layers or gypsiferous soils, in the 
Harrisburg Member of the Kaibab Formation, that support individual 
Gierisch mallow plants or their habitat, within the elevation range of 
775 to 1,148 m (2,477 to 3,766 ft). Appropriate soils are defined as:
    (A) Badland,
    (B) Fluvaquents and Torrifluvents,
    (C) Riverwash,
    (D) Cave-Harrisburg-Grapevine complex,
    (E) Grapevine-Hobcan complex,
    (F) Nikey-Ruesh complex,
    (G) Gypill-Hobog complex,
    (H) Hobog-Tidwell complex,
    (I) Hobog-Grapevine complex,
    (J) Grapevine-Shelly complex, and
    (K) Hindu-Rock outcrop-Gypill complex.
    (ii) Appropriate Mojave desert scrub plant community and associated 
native species for the soil types at the sites listed in paragraph 
(2)(i) of this entry.
    (iii) The presence of insect visitors or pollinators, such as the 
globemallow bee and other solitary bees. To ensure the proper suite of 
pollinators are present, this includes habitat that provides nesting 
substrate for pollinators in the areas described in paragraph (2)(ii) 
of this entry.
    (iv) Areas free of disturbance and areas with low densities or 
absence of nonnative, invasive plants, such as red brome and 
cheatgrass.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created using Albers Equal Area (Albers) North American Datum 83 (NAD 
83) coordinates. The maps in this entry, as modified by any 
accompanying regulatory text, establish the boundaries of the critical 
habitat designation. The coordinates or plot points or both on which 
each map is based are available to the public at the Service's Internet 
site (http://www.fws.gov/southwest/es/Arizona/), Regulations.gov 
(http://www.regulations.gov), at Docket No. FWS-R2-ES-2012-0049, and at 
the field office responsible for this designation. You may obtain field 
office location information by contacting one of the Service regional 
offices, the addresses of which are listed at 50 CFR 2.2.
    (5) Index map follows:
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[[Page 49918]]

[GRAPHIC] [TIFF OMITTED] TP17AU12.000

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

[[Page 49919]]

[GRAPHIC] [TIFF OMITTED] TP17AU12.001

    (7) Unit 2: Black Knolls Unit, Mohave County, Arizona. Map of Units 
1 and 2 is provided at paragraph (6) of this entry.
* * * * *

    Dated: August 6, 2012.
Eileen Sobeck,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-20086 Filed 8-16-12; 8:45 am]
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