[Federal Register Volume 78, Number 156 (Tuesday, August 13, 2013)]
[Rules and Regulations]
[Pages 49149-49165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19386]


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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 
Endangered Status for Sphaeralcea gierischii (Gierisch Mallow) 
Throughout Its Range

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, determine that 
Sphaeralcea gierischii (Gierisch mallow) meets the definition of an 
endangered species under the Endangered Species Act of 1973, as amended 
(Act). Gierisch mallow is a plant species found in Mohave County, 
Arizona, and Washington County, Utah. This final rule implements the 
Federal protections provided by the Act for this species. The effect of 
this regulation is to add this species to the List of Endangered and 
Threatened Plants.

DATES: This rule is effective on September 12, 2013.

ADDRESSES: This final rule and final economic analysis are available on 
the Internet at http://www.regulations.gov and at http://www.fws.gov/southwest/es/arizona/. Comments and materials we received, as well as 
supporting documentation we used in preparing this rule, are available 
for public inspection at http://www.regulations.gov. Comments and 
materials received, as well as supporting documentation used in 
preparing this final rule is available for public inspection, by 
appointment, during

[[Page 49150]]

normal business hours, at U.S. Fish and Wildlife Service, Arizona 
Ecological Services Office, 2321 West Royal Palm Road, Suite 103, 
Phoenix, AZ, 85021; by telephone (602) 242-0210; or by facsimile (602) 
242-2513.

FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S. 
Fish and Wildlife Service, Arizona Ecological Services 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 final rule to list as endangered 
Sphaeralcea gierischii (Gierisch mallow). In this final rule, we will 
refer to Sphaeralcea gierischii as Gierisch mallow.
    Why we need to publish a rule. Under the Act, a species may warrant 
protection through listing if it is endangered or threatened throughout 
all or a significant portion of its range. Listing a species as an 
endangered or threatened species can only be completed by issuing a 
rule. In this final rule, we are explaining why Gierisch mallow 
warrants protection under the Act. This final rule lists the Gierisch 
mallow as an endangered species throughout its range in Mohave County, 
Arizona, and Washington County, Utah. Elsewhere in today's Federal 
Register, we designate critical habitat for the Gierisch mallow under 
the Act.
    The Endangered Species Act provides the basis for our action. Under 
the Act, we can determine that a species is an endangered or threatened 
species 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.
    We have determined that the Gierisch mallow meets the definition of 
an endangered species due to the combined effects of:
     Habitat destruction, modification, and degradation 
resulting from gypsum mining operations; livestock grazing; the spread 
of nonnative species; and increased risk of wildfire.
     Predation (herbivory) during drought years and during the 
reproductive period.
     Existing regulatory mechanisms that could provide 
protection to the Gierisch mallow through mining operations management 
by the Bureau of Land Management (BLM) and Arizona State Land 
Department (ASLD) but are inadequate to protect the species from 
existing and future threats.
     Small population size and restricted range of the species, 
which make the Gierisch mallow increasingly susceptible to further 
declines through stochastic wildfire events, spread of the nonnative 
grasses, and climate change.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data, assumptions, and analyses. We invited these peer reviewers 
to comment on our listing proposal. Generally, the peer reviewers 
agreed with our interpretation of the science and provided information 
regarding population numbers and additional information regarding the 
threats and biology of the species. We also considered all comments and 
information we received during the comment period.

Previous Federal Actions

    Please refer to the proposed listing rule for the Gierisch mallow 
(77 FR 49894; August 17, 2012) for a detailed description of previous 
Federal actions concerning this species.
    Elsewhere in today's Federal Register, we designate critical 
habitat for the Gierisch mallow under the Act.

Background

    It is our intent to discuss below only those topics directly 
relevant to this final rule listing the Gierisch mallow as endangered.

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 Sphaeralcea 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

[[Page 49151]]

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. Gierisch mallow 
appears to be associated with biologic soil crusts within the gypsum 
deposits (Frates 2012, pers. comm.). Similarly, we know that other rare 
plants associated with gypsum soils are associated with a heavy cover 
of cryptogamic plants (lichens, mosses, and blue-green algae), except 
where natural erosion or other manmade factors have destroyed that 
cover (Nelson and Harper 1991, p. 168). Drohan and Merkle (2009, p. 96) 
state, however, that plant species that appear to be soil-specific can 
be found in those soils as a result of other factors in addition to 
soil chemistry. Although there are likely other factors that contribute 
to Gierisch mallow having a limited distribution, it is currently only 
found in gypsum soils. The species may be perennial because it is woody 
at the base and the same individuals have been observed for more than 1 
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 BLM indicates 
that many of the Gierisch mallow populations occur on hillsides or 
steep slopes; however, Gierisch mallow has been documented growing on 
all slopes and aspects. While we do not know the specifics about 
Gierisch mallow, we know that several species of the genus Sphaeralcea 
grow well in disturbed soils (Wallace and Romney 1981, p. 32; Abella 
2009, pp. 704-706; Abella 2010, pp. 1263-1264).
    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 BLM's Arizona Strip Field Office in 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 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. Habitat for 
the Gierisch mallow occurs on Utah State Trust lands managed by the 
State of Utah School and Institutional Trust Lands Administration 
(SITLA).
    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 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 six of the 
Arizona locations. These populations are referred to as ``Hills.'' 
There are a total of 18 populations rangewide, with 17 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. 
Hughes' estimates were conducted using belt transects that are 1.83 m 
(6 ft) wide and 91.44 m (300 ft) long. Hughes carried a 1.83-m (6-ft) 
long plastic pipe and counted every Gierisch mallow plant that was 
within the length of the pipe as he walked the belt transects (Hughes 
2012a). These estimates are presented in Table 1 for the areas surveyed 
in Arizona. Hughes (2012b, pp. 2-4) established these belt transects on 
six of the ``Hills'' (Hills 1, 2, 4, 5, 6, and 7) and began to count 
the number of individuals. The populations on Hills 6 and 7 were 
monitored, and the numbers of individuals within the populations were 
counted for the first time in 2012. There is a population on Hill 3, 
but there are no estimates for it. Data in Table 1 are from files in 
BLM's Arizona Strip Field Office and St. George Field Office, and the 
Service's Arizona Ecological Services Office. The actual transect 
counts appear in Table 1 in bold, in parentheses. Surveys estimate 
total population size to be between 11,000 and 18,000 individuals in 
Arizona.

[[Page 49152]]



                                                          Table 1--Population Numbers for Gierisch Mallow From Six Locations in Arizona
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              Site                   Numbers 2001        Numbers 2003        Numbers 2007        Numbers 2008        Numbers 2009        Numbers 2010        Numbers 2011        Numbers 2012
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Hill 1 (BLM)...................  150+ (100).........  50 (30)...........  (58)..............  No data...........  300 (155).........  200 (85)..........  *.................  200 (no data)
Hill 2 (BLM)...................  150+ (100).........  40 (31)...........  (15)..............  50 (37)...........  40 (23)...........  No data...........  *.................  30 (26)
Hill 4 (BLM)...................  No data............  5,000-9,000 (180).  (176).............  (65)..............  No estimate (108).  No estimate (170).  No estimate (136).  5,000-9,000 (116)
Hill 5 (ASLD)..................  No data............  2,000-3,000 (115).  No data...........  No data...........  No data...........  No data...........  No data...........  No data
Hill 6 (BLM)...................  No data............  No data...........  No data...........  No data...........  No data...........  No data...........  No data...........  3,000-4,000 (610)
Hill 7 (BLM)...................  No data............  No data...........  No data...........  No data...........  No data...........  No data...........  No data...........  1,200-2,000 (129)
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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. Data 
from surveys conducted in 2012 indicate a slight increase in the 
population of Gierisch mallow on both reclaimed sites (Hughes 2012b). 
Hughes (2012b) also indicates that 2012 precipitation levels were very 
low in the winter and spring, while summer precipitation was above 
average. We do not have any information to indicate why there was a 
substantial decrease in plant numbers at these reclaimed areas for 3 
years, especially since 2010 and 2011 were significant moisture years 
(Hughes 2011, p. 1; Hughes 2012c, p.1). Because the Gierisch mallow is 
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; Hughes 2012b, pp. 2-4).

Summary of Comments and Recommendations

    Due to the nature of the proposed rule, we received combined 
comments from the public on the listing action and the critical habitat 
designation. We have separated those comments accordingly and are only 
addressing the comments related to the listing of the Gierisch mallow 
in this rule. Comments related the designation of critical habitat for 
the Gierisch mallow can be found in the final rule designating critical 
habitat published elsewhere in today's Federal Register.
    We requested written comments from the public on the proposed 
listing for the Gierisch mallow during two comment periods. The first 
comment period, which was associated with the publication of the 
proposed rule (77 FR 49894), opened on August 17, 2012, and closed on 
October 16, 2012. The second comment period opened on March 28, 2013 
(78 FR 18943), and closed on April 29, 2013. We also contacted 
appropriate Federal, State, and local agencies; scientific 
organizations; peer reviewers, and other interested parties and invited 
them to comment on the proposed rule during these comment periods. 
Newspaper notices inviting general public comment were published in the 
Kingman Daily Miner on September 12, 2012, and in the Saint George 
Spectrum on September 13, 2012. Additionally, letters were sent to 
stakeholders and special interest groups on September 12, 2012. We 
received no request for a public hearing.
    During the first comment period, we received 19 comment letters 
directly addressing the proposed listing and critical habitat 
designation for the Gierisch mallow. During the second comment period, 
we received one comment letter addressing the proposed listing. All 
substantive information provided during comment periods has either been 
incorporated directly into this final determination or is addressed 
below.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from four knowledgeable 
individuals outside the Service with scientific expertise to review our 
technical assumptions, interpretations of biology, and use of 
ecological principles with respect to the Gierisch mallow. We received 
responses from three of the four peer reviewers.
    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding threats to Gierisch 
mallow. The peer reviewers generally concurred with our methods and 
conclusions and provided additional information, clarifications, and 
suggestions to improve the final rule. Peer reviewer comments are 
addressed in the following summary and incorporated into the final rule 
as appropriate.

Peer Reviewer Comments

    (1) Comment: Only 16 percent of occupied habitat is planned for 
mining, which is not enough to cause Gierisch mallow to go extinct.
    Our Response: We agree that the amount of occupied habitat for the 
Gierisch mallow is small in the mining areas; however, approximately 46 
percent of the known plants will be lost in these habitat areas. Please 
see the Summary of Factors Affecting the Species section of this rule.

[[Page 49153]]

Public Comments

    (2) Comment: We received several comments that revenue and jobs 
would be lost and that gypsum mining operations may be negatively 
impacted as a result of listing the Gierisch mallow under the Act.
    Our Response: The Act requires decisions to be based on the best 
available science at the time of the listing. In addition, we base our 
decisions to list a species on the five threat factors discussed in the 
proposed rule (77 FR 49894; August 17, 2012) and in this final rule. 
Please refer to the Summary of Factors Affecting the Species section in 
this final rule. Additionally, the economic analysis did not support 
this claim. The economic analysis includes the analysis of two future 
consultations on mining activity on BLM-managed land and assumes that 
these consultations will not result in changes to the level of mining 
activity. The Service expects the most likely outcome of these 
consultations to include conservation measures such as land 
reclamation.
    (3) Comment: The occurrence of Gierisch mallow on steep slopes may 
indicate a refugia from grazing, and the species could be more widely 
distributed in absence of grazing.
    Our Response: We have no information to support this observation 
regarding steep slopes acting as refugia. We are aware that Gierisch 
mallow grows in other areas besides steep slopes and have addressed 
this in this listing rule. We acknowledge that grazing is a threat to 
the species; however, we have determined that it is not a significant 
threat to the Gierisch mallow. Please refer to the Summary of Factors 
Affecting the Species section in this final rule.
    (4) Comment: One commenter questions if Gierisch mallow is a 
separate species because no genetic testing has been completed.
    Our Response: The best available science indicates that Gierisch 
mallow is a valid taxon. Genetic analysis is not needed to 
differentiate species. See the Species Information section for a 
complete description of the biology and taxonomy of the species.
    (5) Comment: In preparing this final listing determination, we used 
the best available scientific and commercial data as required under 
section 4(b)(1)(A) of the Act. We received several comments stating 
that we did not use the best science because we did not consult 
geologists and botanists regarding the soil layers associated with the 
Harrisburg Member and other similar gypsum deposits and that we did not 
thoroughly survey the widely ranging Harrisburg Member for the Gierisch 
mallow.
    Our Response: All gypsum deposits and available habitat in the 
Harrisburg Member were surveyed for the Gierisch mallow. It is common 
practice for botanists to work with local geologists to determine where 
appropriate soils layers are. We consulted with local botanists to 
gather data for our determination; therefore, we used the best science 
available.
    (6) Comment: We received several comments stating that there is no 
proof that the Gierisch mallow is threatened, that we are missing data 
to support our threats analysis, and that more years of study are 
needed to gather the necessary data to support our analysis.
    Our Response: As stated previously, section 4(b)(1) of the Act 
requires that decisions be based on the best available science at the 
time of listing. The commenters did not provide any additional data 
contradicting the threats analysis. We based our decision on the best 
available science at the time of listing, as required by the Act. 
Regarding whether we should undertake additional years of study to 
gather additional data, the Act requires that we finalize or withdraw a 
proposed rule within 1 year. Based on the currently available data, we 
believe it is appropriate to finalize the decision at this time. We 
will continue to work cooperatively with partners to conserve and work 
towards recovery of the species.
    (7) Comment: We received several comments stating that it is not 
known if Hill 4 will be mined.
    Our Response: We based our analysis on current, available 
information, and, according to the mining company, Hill 4 is still 
currently included in the mine expansion area.
    (8) Comment: We received several comments stating that Gierisch 
mallow should only be listed after cooperative conservation efforts are 
demonstrated ineffective and that Gierisch mallow is better protected 
through existing mechanisms.
    Our Response: The Act sets forth a requirement that a final rule be 
issued no later than 1 year after a proposal or the proposal be 
withdrawn. As we are not withdrawing our proposal to list Gierisch 
mallow, we must publish the final rule to list the species within 1 
year of the proposed rule. Listing a species under the Act does not 
preclude working cooperatively with partners to conserve and work 
towards recovery of a species. We are currently working with partners 
to conserve the Gierisch mallow and will continue to work with partners 
in the future. Additionally, we reviewed the existing conservation 
measures and concluded they are not sufficient to ameliorate the 
threats. We do not know if enough seeds can be collected to reestablish 
pre-mining population numbers in reclaimed areas. Furthermore, 
preliminary data from seed germination studies indicate that 
reestablishing populations from collected seeds may be difficult. Refer 
to our Summary of Factors Affecting the Species section for a thorough 
review of the threats.
    (9) Comment: The Gierisch mallow was observed blooming twice in 
2012 (spring and fall) and producing seed with each bloom cycle.
    Our Response: We acknowledge that the plant had two bloom cycles in 
2012, and produced seed each time. As was acknowledged by the 
commenter, this was likely to due to an abundance of rainfall in 2012. 
We have no other data to suggest that this is a regular occurrence that 
contributes to the long-term viability of the species.
    (10) Comment: The Service does not have data to support that off-
highway vehicle (OHV) use and illegal dumping impact the species.
    Our Response: Service biologists and plant ecologists have observed 
the effects of unauthorized OHV use and illegal dumping in Gierisch 
mallow habitat. We have documentation that these are ongoing activities 
that occur in habitat and that they are disrupting the soil crusts as 
well as contributing to the alteration of vegetation composition, 
thereby impacting the species. Refer to the Summary of Factors 
Affecting the Species section for a complete discussion on the effects 
of OHV use and illegal dumping.
    (11) Comment: The commenter questions if the Gierisch mallow came 
into existence because of the mines.
    Our Response: Gierisch mallow is a recently described species that 
is closely associated with gypsum soil types. Gierisch mallow also 
occurs on gypsum soil deposits that are not being mined. Gierisch 
mallow is not dependent on the mines, nor did it come into existence 
because of the mines.
    (12) Comment: We received several comments regarding livestock 
grazing operations helping the Gierisch mallow or improving its 
habitat.
    Our Response: No information was provided to substantiate these 
observations.
    (13) Comment: One commenter stated that the Gierisch mallow can be 
grown from seed and, therefore, is not endangered.
    Our Response: Under the Act, a species is considered endangered if 
it is

[[Page 49154]]

in danger of extinction throughout all or a significant portion of its 
range. The purpose of the Act is to protect both the species and the 
ecosystem upon which it depends. Therefore, preservation of the species 
and its habitat is essential for the conservation and recovery of the 
species. Although Gierisch mallow has been demonstrated to be grown 
from seed with limited success, this alone does not conserve the 
ecosystem, including the pollinators that are necessary for the species 
to reproduce. As we discuss in the Summary of Factors Affecting the 
Species section of this final rule, the threats to the Gierisch mallow 
and its habitat are significant, and, therefore, the species warrants 
protection under the Act.
    (14) Comment: We received several comments related to the lack of 
sufficient BLM grazing and OHV use policies and standards, including 
monitoring protocols, to protect the Gierisch mallow.
    Our Response: As detailed below in our discussion of the threats to 
the species, grazing and OHV use are not threats that have significant 
impacts to the species rangewide. We have no oversight regarding the 
creation and implementation of BLM policies and standards.
    (15) Comment: We received several comments stating that not enough 
notice was given or that individuals were not notified at all regarding 
the proposed listing and comment period.
    Our Response: Per the Act as well as Service policy and practices, 
legal notices indicating the publication of the proposed rule and 
inviting general public comment for the 60-day public comment period 
were published in the Kingman Daily Miner on September 12, 2012, and in 
the Saint George Spectrum on September 13, 2012. Additionally, letters 
were sent to stakeholders and special interest groups on September 12, 
2012. The document making available the draft environmental assessment 
and draft economic analysis, and opening a 30-day public comment period 
on these draft documents as well as the proposed rule, was published on 
March 29, 2013, in the Federal Register.
    (16) Comment: One commenter provided information regarding 
ecological site guide descriptions to demonstrate the proportion of 
forbs, including globemallow, which would be expected in Historic 
Climax Plant Community. This information was provided to demonstrate 
that Gierisch mallow should be found in low numbers in the appropriate 
soil types.
    Our Response: Ecological site guide descriptions predict the annual 
production (pounds per acre) of plant groups (grass/grass-like, forbs, 
shrub/vine, and trees). They further break down plant species 
composition within the plant groups, also by annual production. A forb 
species may be more numerous at a site while providing less annual 
production than fewer numbers of shrubs and perennial grasses. 
Therefore, although an ecological site description will include 
expected composition by weight of a species or group of species, it 
does not indicate the expected numbers or densities of these plants at 
a particular site.
    (17) Comment: One commenter suggested that Gierisch mallow is 
supposed to occur in low density on the mining rehabilitation sites 
where top soil was replaced after mining. The commenter further 
suggested that other large shrubs are more abundant in these areas and 
that, according to the ecological site descriptions, shrubs should be 
more abundant than Gierisch mallow.
    Our Response: As previously described, ecological site descriptions 
provide the expected annual production in pounds per acre rather than 
abundance or density of plant species. Further, an ecological site 
description provides a plant community description for an undisturbed 
site and its historic condition. It is reasonable to assume that plants 
with soil-specific requirements and tolerances, such as Gierisch 
mallow, would be low in both quantity and density after the original 
soil composition and structure has been altered. Likewise, we find it 
reasonable to assume that more common shrubs without soil-specific 
requirements such as Larrea tridentata (creosote bush) or Atriplex 
canescens (four-wing saltbush) would be more abundant in these 
disturbed areas. We do not know what the capabilities of Gierisch 
mallow are to reestablish to pre-disturbance population levels.

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 
structure of the gypsum soil and its composition is altered; therefore, 
the reclaimed soils do not contain the original gypsum soil structure 
and 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 due to ASLD access 
policies. 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

[[Page 49155]]

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 approximately 35 percent of the 
entire population rangewide and approximately 39 percent 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, 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 staff 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 to 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 
13 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 mallow plants 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), 
although preliminary data indicate that germination rates from 
collected seeds are low (Reisor 2012, pers. comm.). Observations during 
the early stages of restoration efforts also suggest that the reclaimed 
areas have different vegetation composition and cover than nearby 
undisturbed areas (Reisor 2012, pers. comm.).
    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 concludes 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, approximately 46 percent of 
all the known Gierisch mallow plants rangewide 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 would result in the loss of approximately 46 
percent of the known plants rangewide. This substantial loss of the 
total population 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 threat that has significant impacts 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 BLM, ASLD, and SITLA lands. Grazing is excluded 
from both the Black Rock Gypsum Mine on BLM land and the Georgia-
Pacific Mine on ASLD land, although grazing occurs on the reclaimed 
areas. 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 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

[[Page 49156]]

unavailable for grazing because of the Black Rock Gypsum Mine, but 
heavy grazing has been documented on the reclaimed sites (Reisor 2012, 
pers. comm.; Hughes 2011, p. 8). 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); however, DeFalco (2012, 
pers. comm.) has observed livestock climbing rocky hillsides and steep 
slopes while conducting extensive research in the northeast Mojave 
Desert. Additionally, livestock have been documented consuming Gierisch 
mallow in populations that occur on lesser- or flat slopes. Livestock 
consumption of Gierisch mallow has more of an impact to the species 
during the flowering period, when the plants are reproducing. Failure 
to flower and, therefore, produce seeds can have adverse effects on the 
ability of Gierisch mallow to reproduce. According to Reisor (2012, 
pers. comm.), entire flowering stalks were removed and reproduction did 
not occur in several areas, including on steep slopes, in 2010 and 
2012.
    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 SITLA land. SITLA lands contain approximately 68 ha (167 ac) of 
Gierisch mallow habitat that is grazed within the Curly Hollow 
Allotment. 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

[[Page 49157]]

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 mallow populations; however, we do know 
that both of these nonnative species are prevalent in high densities 
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 high density 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 Gierisch mallow 
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 Gierisch 
mallow 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 
unless heavy grazing occurs in the large populations during the 
flowering and reproductive period. 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 
consider grazing to be a threat to the species that has a moderate 
level of impact to populations, especially during drought years and 
during the reproductive season in the spring.
 Recreation Activities
    There is evidence of off-road vehicle (OHV) activity in Utah. 
Several of the smaller hills were crisscrossed 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 
of Gierisch mallow may experience an overall reduction in fitness.
    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 threat that has a potential future impact 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 threat to 
the species that has moderate impacts to this population in Utah.
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

[[Page 49158]]

appliance, which had obviously been used for target practice, dumped 
near the population (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. 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 a threat to the species that has moderate impacts to 
this population 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 and can provide 
enough fuel continuity to aid in the spread of fire across the 
landscape in these areas (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, above). 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, 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,

[[Page 49159]]

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 
threat to Gierisch mallow and its habitat that may have a significant 
population-level effect on the species.
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 threat that 
has significant impacts to the speceis. 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 most of the habitat 
are located on BLM and ASLD lands, which have an extensive history of, 
and recent successful exploration activities for, gypsum mining. A 
small amount of Gierisch mallow habitat (approximately 68 ha (167 ac)) 
occurs on SITLA managed lands; however no mining is proposed on these 
lands. Two of the 18 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 
approximately 46 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. The consumption of Gierisch mallow that has been 
documented increases the significance of the effects of livestock 
grazing when grazing occurs during the reproductive period for the pant 
in the spring. 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 years. 
The threat of fire caused by annual invasions of nonnative species 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; Frates 2012, pers. comm.). Collection 
of seeds from both BLM and ASLD is prohibited, and only the BLM offers 
a special research permit to collect seeds of listed species, as long 
as the seed collection does not violate the Act. 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 and during the reproductive period in the spring. 
Livestock herbivory during the reproductive period can lead to the 
flowering stalks being eaten, thus preventing adult Gierisch mallow 
plants from reproducing. 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 and have been documented 
on steep slopes in similar habitats (DeFalco 2012, pers. comm.).
    Herbivory from livestock is not a threat that has significant 
impacts 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 or during the reproductive period, 
especially when the flowering stalks are consumed during the 
reproductive period.
    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 threat that has 
moderate impacts only during drought years or during the reproductive 
period.

[[Page 49160]]

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.
State Regulations
    Approximately 13 percent of known populations are located on 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.
    No Gierisch mallow populations are known to occur on the 
approximately 68 ha (167 ac) of SITLA lands that contain habitat for 
the species; however, there are no laws protecting plants or their 
habitat on SITLA lands in Utah.
    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 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 the mining company 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 at 43 CFR 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. The 
ability to reestablish healthy populations in reclaimed areas is 
uncertain 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

[[Page 49161]]

collected seeds. Therefore, we find that the BLM's 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, above), 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 their 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 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'' under Factor A. Further, 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

[[Page 49162]]

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 under Factor A, 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 under Factor A, 
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 additional scientific information becomes 
available.
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.

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 threat to the 
Gierisch mallow is the ongoing and future gypsum mining that is likely 
to remove approximately 46 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 and during the reproductive period 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 threats that have 
significant impacts 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 approximately 46 percent of known 
Gierisch mallow plants, which are located in two populations in 
Arizona. The existing regulatory mechanisms are inadequate 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; however, they can have stipulations written into the 
ASLD lease or the mining company's reclamation plan that would require 
the mining company to make allowances for federally listed species 
(Dixon 2012, p. 1). 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 inadequate 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

[[Page 49163]]

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 identified threats are currently 
impacting the species, and will continue to do so, or increase, into 
the foreseeable future. Therefore, the Gierisch mallow does not meet 
the definition of a threatened species under the Act. 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 finalize the listing of the 
Gierisch mallow as endangered species 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 being listed 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 significant portion of that range. Accordingly, our 
assessment and 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 
Gierisch 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 an 
endangered species rather than a threatened species 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, nongovernment organizations, and stakeholders) are often 
established to develop recovery plans. 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 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.
    Once 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 section 6 of the Act, the States of Arizona and Utah 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.
    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

[[Page 49164]]

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 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: for scientific purposes or for 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 listing on 
proposed and ongoing activities within the range of species being 
listed. 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 Office (see ADDRESSES). 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.

Required Determinations

National Environmental Policy Act

    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 in connection with listing a species as an endangered or 
threatened species under the Endangered Species Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-
2012-0049 or upon request from the Field Supervisor, Arizona Ecological 
Services Office (see ADDRESSES section).

Authors

    The primary authors of this document are staff of the Arizona 
Ecological Services Office (see ADDRESSES).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as follows:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless 
otherwise noted.


0
2. Amend Sec.  17.12(h) by adding an entry for ``Sphaeralcea 
gierischii'', in alphabetical order under ``FLOWERING PLANTS'', to the 
List of Endangered and Threatened Plants, to read as follows:


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         813    17.96(a)          NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 49165]]

* * * * *

    Dated: July 29, 2013.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-19386 Filed 8-12-13; 8:45 am]
BILLING CODE 4310-55-P