[Federal Register Volume 88, Number 199 (Tuesday, October 17, 2023)]
[Rules and Regulations]
[Pages 71491-71504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22759]



[[Page 71491]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R1-ES-2021-0154; FF09E22000FXES1113090FEDR 234]
RIN 1018-BE54


Endangered and Threatened Wildlife and Plants; Removing Nelson's 
Checker-Mallow From the Federal List of Endangered and Threatened 
Plants

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are removing 
Nelson's checker-mallow (Sidalcea nelsoniana) from the Federal List of 
Endangered and Threatened Plants. Our review of the best available 
scientific and commercial data indicates that the threats to Nelson's 
checker-mallow have been eliminated or reduced to the point that the 
species no longer meets the definition of an endangered or threatened 
species under the Endangered Species Act of 1973, as amended (Act).

DATES: This rule is effective November 16, 2023.

ADDRESSES: This final rule and supporting documents, including 
references cited, the 5-year review, the recovery plan, the species 
status assessment (SSA) report, and the post-delisting monitoring (PDM) 
plan, are available at https://www.regulations.gov under Docket No. 
FWS-R1-ES-2021-0154.

FOR FURTHER INFORMATION CONTACT: Kessina Lee, Project Leader, U.S. Fish 
and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th 
Ave., Suite 100, Portland, OR 97266; telephone: 503-231-6179. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION:

Previous Federal Actions

    On February 12, 1993, we published in the Federal Register (58 FR 
8235) a final rule listing Nelson's checker-mallow as a threatened 
species. In 2010, we finalized the Recovery Plan for the Prairie 
Species of Western Oregon and Southwestern Washington, which includes 
Nelson's checker-mallow (Service 2010, entire). We conducted a 5-year 
status review in 2012, and did not recommend reclassification (Service 
2012, entire). On May 7, 2018, we announced in the Federal Register (83 
FR 20088) our initiation of a subsequent 5-year review for the species. 
We completed the status review in 2021, and therein recommended 
delisting the species. On April 28, 2022, we published in the Federal 
Register (87 FR 25197) a proposed rule to remove Nelson's checker-
mallow from the Federal List of Endangered and Threatened Plants 
(List).

Peer Review

    An SSA team prepared the SSA report for Nelson's checker-mallow 
(Service 2021, entire). The SSA team was composed of Service 
biologists, and the team consulted with other species experts. The SSA 
report represents a compilation of the best scientific and commercial 
data available concerning the status of the species, including the 
impacts of past, present, and future factors (both negative and 
beneficial) affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review in 
listing actions under the Act, we solicited independent scientific 
reviews of the information contained in the Nelson's checker-mallow SSA 
report. As discussed in the proposed rule, we sent the SSA report to 
four independent peer reviewers and received no responses. The SSA 
report was also submitted to our Federal, State, municipal, Tribal, and 
conservation partners for scientific review. We received responses from 
two partners, representing a Federal agency and a nonprofit 
conservation partner. In preparing the proposed rule, we incorporated 
the results of these reviews, as appropriate, into the SSA report, 
which was the foundation for the proposed rule and this final rule.

Summary of Changes From the Proposed Rule and Draft Post-Delisting 
Monitoring Plan

    We considered all comments and information we received during the 
comment period on our proposed rule to delist Nelson's checker-mallow 
(87 FR 25197; April 28, 2022). This consideration resulted in the 
following changes from the proposed rule and draft PDM plan to this 
final rule and the updated PDM plan.
    In this final rule, we include updated monitoring data and the 
results of a partial range-wide survey conducted in 2022, the species' 
potential response to climate change, and status of reintroduction 
efforts. We also make nonsubstantive, editorial corrections in our 
preamble to improve clarity.
    We revised the PDM plan by updating the monitoring timetable and 
schedule to include periodic surveys over a 10-year timeframe, updating 
tables and text to reflect results of recent monitoring efforts, and 
making one substitution and one addition to the monitoring site table 
to better represent the current distribution of the species.

Summary of Comments and Recommendations

    In the proposed rule published on April 28, 2022 (87 FR 25197), we 
requested that all interested parties submit written comments on the 
proposal by June 27, 2022. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. We did 
not receive any requests for a public hearing. We received comments 
from two individuals addressing the proposed rule, representing one 
public commenter and one State agency. These comments are posted at 
https://www.regulations.gov under Docket No. FWS-R1-ES-2021-0154. The 
public comment opposed the proposed delisting of the Nelson's checker-
mallow but did not provide substantive information that could be 
evaluated or incorporated, and we do not address it further here. The 
State agency comment also opposed the proposed delisting and provided 
substantive information that is addressed below.
    Comment (1): The Oregon Department of Agriculture (ODA) commented 
that there is an overall lack of sufficient data in the SSA report to 
back up claims of population growth trends, reproduction, and 
recruitment to support delisting Nelson's checker-mallow. ODA 
recommended that the Service consider a more robust, comprehensive, 
methodical, and organized approach to annual monitoring of these 
vulnerable prairie species, and stated that, based on the SSA report, 
it is unclear whether populations of this species are self-sustaining 
or are exhibiting explosive population growth due to intensive out-
planting.
    Response (1): In accordance with section 4(b)(1)(A) of the Act (16 
U.S.C. 1531 et seq.), this delisting determination for Nelson's 
checker-mallow is based on the best scientific

[[Page 71492]]

and commercial data available. The Service considered population 
growth, reproduction, and recruitment of Nelson's checker-mallow in the 
SSA report when assessing the species' resiliency. We recognize that 
sites are not monitored regularly throughout the entire range, and that 
there is interannual variation in abundance at sites. However, 
monitoring data from the time of listing through 2022 show an overall 
trend of population growth with increasing abundance and an increasing 
number of known sites. At the time of listing, there were 49 known 
sites, of which 19 had 100 to 999 plants, and 5 had 1,000 plants or 
more (Service 2012, pp. 17-19). Of the 66 sites known at the time of 
the SSA report, 28 had 100 to 999 plants, and 24 sites had 1,000 plants 
or more (Service 2021, pp. 17-18). Restoration activities include 
establishment of 51 new sites (i.e., out-plantings) and augmentation of 
15 existing sites. At this time, population increases are driven by 
restoration activities and not natural recruitment; however, seedlings 
have been observed on most (35 of 65) surveyed sites (Silvernail et al. 
2016, pp. 21-24).
    In 2022, the Service funded a partial range-wide survey (less than 
50 percent of known sites) of Nelson's checker-mallow (Service 2022, 
entire). Within sites, the survey focused on obtaining an inventory of 
larger patches of Nelson's checker-mallow plants, so most smaller and 
isolated patches were not included. A total of 62 patches, including 
more than 86 percent of the plants known to exist, were surveyed. 
Overall, the population remains high with over 369,000 plants counted, 
reflecting an overall increase of approximately 30,000 plants since 
completion of the SSA report in 2021. Restored sites continue to 
contribute more than 90 percent of individuals (Service 2022, p. 5).
    Comment (2): ODA commented that while there have been successful 
artificial reintroductions, because of the dearth of population trend, 
reproduction, and demographic data, there is no sense of how 
reintroductions have performed since 2017, when the last range-wide 
species survey was undertaken. ODA recommended that the Service 
demonstrate long-term viability of these reintroduction efforts through 
focused, long-term monitoring before delisting the species.
    Response (2): While there have not been more recent range-wide 
species surveys since 2017, monitoring of 62 patches in 2022 (including 
more than 86 percent of known Nelson's checker-mallow plants) 
demonstrated the population remains high and restored sites continue to 
contribute more than 90 percent of individuals (Service 2022, p. 5).
    In addition, the Service notes in the SSA report that long-term 
monitoring data are not currently available for the majority of 
Nelson's checker-mallow sites and were not a component of our 
resiliency assessment (Service 2021, p. 26). We are required to make 
our determinations based on the best available scientific and 
commercial data at the time the determination is made. Current data 
indicate that since the Nelson's checker-mallow was listed as 
threatened in 1993, the species has increased in both number and size 
of populations, with a majority of populations under management plans 
or public ownership, such that the species is no longer in danger of 
extinction within the foreseeable future throughout all or a 
significant portion of its range. Considering the best scientific and 
commercial information available, Nelson's checker-mallow also does not 
meet the Act's definition of a threatened species. Finally, the PDM 
plan outlines a 10-year monitoring plan with specific criteria for site 
selection, data collection and analysis methods, and reporting 
requirements to track the species' status. The PDM plan also contains 
thresholds for population numbers and distribution, and triggers for 
management protections to ensure that Nelson's checker-mallow remains 
secure from the risk of extinction following delisting.
    Comment (3): ODA recommended that the Service increase its 
reintroduction efforts in the northern recovery zones given the 
statement in the SSA report that Coast Range, Portland, and Southwest 
(SW) Washington are known to have the minimum number of populations but 
do not meet the recovery goals for abundance.
    Response (3): At the time the SSA report was written, recovery 
goals for abundance in the Coast Range (15,000 plants), Portland (5,000 
plants), and SW Washington (10,000 plants) recovery zones had not been 
met. Since that time, more than 11 new introduction sites have been 
established across the species' range. While the Coast Range and SW 
Washington recovery zones remain below their abundance goals, the 
Portland recovery zone now exceeds its abundance goal. Recent surveys 
also show increasing trends in plant abundance across the species' 
range with the total number of plants increasing from 334,968 at the 
time of the SSA report (Service 2021, p. 15) to 426,032 in 2022 
(Service 2022, pp. 2-3). Support for the ongoing conservation of 
Nelson's checker-mallow has been high among government agencies, 
nongovernmental conservation organizations, and some private 
landowners. It is anticipated that priority recovery and management 
actions, including additional reintroduction efforts, will continue at 
approximately the current pace and that the species will continue to 
benefit from this ongoing conservation support.
    Comment (4): ODA expressed a concern about the species' ability to 
adapt to climate change given the recent drought and extreme heat 
coupled with the most successful recovery zones occurring at the 
southern end of the species' range. They emphasized the need for a 
better understanding of the magnitude and urgency of the threats and 
that data beyond 2020/2021 would be helpful in understanding the 
species' response to future climate conditions.
    Response (4): The Service reviews the best scientific and 
commercial information available when conducting a threats analysis. 
The identification of factors that could impact a species negatively is 
not sufficient to compel a finding that listing (or maintaining a 
currently listed species) on the Federal Lists of Endangered or 
Threatened Wildlife and Plants is appropriate. In determining whether a 
species meets the definition of a threatened or endangered species, we 
must evaluate all identified threats by considering the species' 
expected response and the effects of the threats--in light of those 
actions and conditions that will ameliorate the threats--on an 
individual, population, and species level, as well as the cumulative 
effect of the threats.
    In our assessment of future viability of the species in the SSA 
report, we considered a worst case scenario that assumed that the 
anticipated effects of climate change would result in the reduction of 
Nelson's checker-mallow populations by 50 percent within a period of 25 
to 50 years (Service 2021, pp. 29-30). However, even under this 
scenario, our analysis suggests that loss of resiliency will be modest, 
with 60 sites remaining in moderate or high condition, no change in the 
number of recovery zones that meet recovery goals, and no major changes 
in redundancy or representation expected. Collectively, this suggests 
that in 25 to 50 years, viability of the species will not be 
significantly reduced (Service 2021, p. 31). In addition, Nelson's 
checker-mallow has a deep taproot that allows it to access groundwater 
and soil water that may help it survive extended periods of drought. At 
present, quantitative estimates of the impacts of increased 
temperatures and precipitation changes on Nelson's

[[Page 71493]]

checker-mallow are not available outside of our analysis.
    Current data are insufficient to analyze how populations are 
affected by year-to-year variation in weather. All species have the 
potential to be negatively impacted by climate change. Recovery efforts 
have increased this species' resiliency, redundancy, and representation 
such that the species is now better able to recover from impacts. 
Effects may be further buffered if adaptive management strategies are 
implemented at sites under public or conservation organization 
ownership. Many of the populations of Nelson's checker-mallow are on 
lands that will be managed in perpetuity. While 30 populations are in 
the two southernmost zones, there are 12 additional independent 
populations dispersed across other recovery zones that were considered 
in the analysis of the species' resiliency, redundancy, and 
representation. In addition, there are currently more than 900 pounds 
of seed in storage with more in production, and reintroduction efforts 
are expected to continue as part of prairie restoration at both public 
and private sites.

Background

    Nelson's checker-mallow is an herbaceous perennial plant in the 
mallow family (Malvaceae). It produces 30 to 100 lavender to deep-pink 
flowers arranged on an elongated, branched stalk. Plants range from 50 
to 150 centimeters (20 to 60 inches) in height. Plants produce short, 
thick, twisted rhizomes (creeping underground stems), as well as a 
system of fine roots extending from a taproot (a stout main root) 
(Service 2010, appendix F, pp. F-3-F-4).
    Nelson's checker-mallow is found in the Willamette Valley and the 
Coast Range of Oregon and Washington. It occupies a variety of prairie 
habitats and soil types but is typically associated with open sites. In 
the Willamette Valley, the species occasionally occurs in the 
understory of Oregon ash (Fraxinus latifolia) woodlands or among woody 
shrubs, but more frequently occupies native prairie remnants, including 
those at the margins of sloughs, ditches, streams, roadsides, fence 
rows, drainage swales, and fallow fields (Glad et al. 1994, pp. 314-
321). In the Coast Range, Nelson's checker-mallow typically occurs in 
open, wet to dry meadows; in intermittent stream channels; and along 
margins of coniferous forests (Glad et al. 1987, pp. 259-262).
    Once established, Nelson's checker-mallow plants are hardy; if 
plants become established at a site, they usually persist (Bartow 2020, 
pers. comm.). Their long taproot allows them to access subsurface water 
sources, and individual plants are long-lived (Dillon 2021, pers. 
comm.). In addition, regeneration from the taproot is possible after 
the aboveground and upper taproot portions of the plant have been 
removed (Dillon 2021, pers. comm.).
    A thorough review of the taxonomy, life history, and ecology of 
Nelson's checker-mallow is presented in version 1.0 of the SSA report 
(Service 2021, entire).

Recovery Criteria

    Section 4(f) of the Act directs us to develop and implement 
recovery plans for the conservation and survival of endangered and 
threatened species unless we determine that such a plan will not 
promote the conservation of the species. Under section 4(f)(1)(B)(ii), 
recovery plans must, to the maximum extent practicable, include 
objective, measurable criteria which, when met, would result in a 
determination, in accordance with the provisions of section 4 of the 
Act, that the species be removed from the List.
    Recovery plans provide a roadmap for us and our partners on methods 
of enhancing conservation and minimizing threats to listed species, as 
well as measurable criteria against which to evaluate progress towards 
recovery and assess the species' likely future condition. However, they 
are not regulatory documents and do not substitute for the 
determinations and promulgation of regulations required under section 
4(a)(1) of the Act. A decision to revise the status of a species, or to 
delist a species, is ultimately based on an analysis of the best 
scientific and commercial data available to determine whether a species 
is no longer an endangered species or a threatened species, regardless 
of whether that information differs from the recovery plan.
    There are many paths to accomplishing recovery of a species, and 
recovery may be achieved without all of the criteria in a recovery plan 
being fully met. For example, one or more criteria may be exceeded 
while other criteria may not yet be accomplished. In that instance, we 
may determine that the threats are minimized sufficiently, and that the 
species is robust enough that it no longer meets the Act's definition 
of an endangered species or a threatened species. In other cases, we 
may discover new recovery opportunities after having finalized the 
recovery plan. Parties seeking to conserve the species may use these 
opportunities instead of methods identified in the recovery plan. 
Likewise, we may learn new information about the species after we 
finalize the recovery plan. The new information may change the extent 
to which existing criteria are appropriate for identifying recovery of 
the species. The recovery of a species is a dynamic process requiring 
adaptive management that may, or may not, follow all the guidance 
provided in a recovery plan.
    The Recovery Plan for the Prairie Species of Western Oregon and 
Southwestern Washington (recovery plan) divides the geographic area 
covered by included species into recovery zones, which provides a 
framework for recovering the species' historical ranges. Nelson's 
checker-mallow historically occupied seven recovery zones: SW 
Washington, Portland, Coast Range, Salem East, Salem West, Corvallis 
East, and Corvallis West. The following discussion provides an 
assessment of the species' status relative to the five delisting 
criteria outlined in the recovery plan.
Delisting Criterion 1: Distribution and Abundance
    The recovery plan specifies that the distribution of populations 
should reflect the extent of the species' historical geographic 
distribution to the extent practicable and identifies goals for a 
minimum number of populations and target number of plants per recovery 
zone, as follows: 5,000 plants in 1 population in the Portland recovery 
zone; 10,000 plants in 2 populations in the SW Washington, Salem East, 
and Corvallis East recovery zones; 15,000 plants in 3 populations in 
the Coast Range recovery zone; and 20,000 plants in 4 populations in 
the Salem West and Corvallis West recovery zones.
    The recovery plan further specifies that, with the exception of the 
Portland recovery zone, this may be achieved with a combination of at 
least 2 populations that number at least 2,000 individuals; scattered 
independent populations must number at least 200 individuals to add up 
to the target number in each zone. The range-wide delisting goal is 
100,000 plants occurring in 20 populations.
    At the time of the SSA report, a total of 334,968 individual plants 
were distributed across the historical range of the species. 
Considering only the sites considered independent populations (having 
at least 200 plants), there were 332,935 individual plants, found in 42 
populations distributed across 6 of the 7 recovery zones (Service 2021, 
pp. 15, 27). Recent surveys show continued increases in plant abundance 
across the

[[Page 71494]]

species' range, with the total number of plants increasing to 426,032 
in 2022 (Service 2022, pp. 2-3).
    At the time of the SSA report, the Corvallis West and Salem West 
recovery zones met both the abundance and distribution goals outlined 
in the recovery plan. Collectively, these 2 recovery zones contained 71 
percent of the populations (30 populations) and 95 percent of the 
individual plants (313,662 plants) known to exist. A third zone, Salem 
East, contained 9,519 plants, occurring in three populations, 
essentially meeting the distribution and abundance goals of 10,000 
plants distributed among 2 populations. Three zones (Coast Range, 
Portland, and SW Washington) had the minimum number of populations but 
did not meet the recovery goals for abundance. The remaining zone, 
Corvallis East, did not have any sites that met the definition of an 
independent population.
    Surveys in 2022 included a new site in the Corvallis East zone, so 
all recovery zones are now occupied (Service 2022, p. 3). Introduced 
populations in the Salem East and Portland zones have been established, 
and those zones now meet overall abundance goals per the recovery plan. 
Overall, the population at the sites that were included in our analysis 
for the SSA increased from about 333,000 plants (Service 2021, p. 17) 
to about 370,000 plants in 2022 (Service 2022, p. 3).
    The abundance and distribution goal of 100,000 plants in 20 
populations has been exceeded, with numbers of nearly 333,000 plants in 
42 populations, per the SSA report (Service 2021, p. 17) and more than 
370,000 plants in those 42 populations in 2022 (Service 2022, pp. 2-3). 
While the plants and populations are not distributed among recovery 
zones precisely as identified in the recovery plan, they are 
distributed throughout the historical range of the species. We conclude 
that the intent of this criterion, which is to minimize extinction risk 
by ensuring a sufficient number and distribution of plants and 
populations, has been satisfied.
Delisting Criterion 2: Population Trend and Evidence of Reproduction
    The recovery plan notes that the number of individuals in the 
population (or area of foliar cover) shall have been stable or 
increasing over a period of at least 15 years. Stable does not mean 
that the population size is static over time; over a period of 15 
years, the number of individuals in the population may exhibit natural 
year-to-year variability, but the trend must not be declining. 
Populations must show evidence of reproduction by seed set or presence 
of seedlings.
    While taking into account varying methodologies and irregular 
population monitoring throughout the species' range, the overall 
abundance of Nelson's checker-mallow has increased markedly since 
listing in 1993. Range-wide, both the number of independent populations 
(having 200 plants or more) and the total number of plants continue to 
increase. In addition, more populations have a larger number of 
individuals than at the time of listing, as shown in table 1, below 
(Service 2012, pp. 17-19; Service 2021, p. 18), and these data indicate 
an overall positive trend since the time of listing and since the 2012 
5-year review.

 Table 1--Number of Sites With More Than 100 Plants and More Than 1,000
                        Plants for Example Years
------------------------------------------------------------------------
                                                 Sites with   Sites with
                     Year                         100-999      >=1,000
                                                   plants       plants
------------------------------------------------------------------------
1993..........................................           19            5
2012..........................................           26            4
2021..........................................           28           24
------------------------------------------------------------------------

    Additionally, seedlings were observed on most sites, as confirmed 
on 35 of 65 surveyed sites (Silvernail et al. 2016, pp. 21-24), and 
overall abundance is increasing throughout the recovery zones. Given 
that the number of individual plants has increased, and large 
populations have been successfully established, we conclude that this 
criterion has been met.
Delisting Criterion 3: Habitat Quality and Management
    The recovery plan specifies that sites supporting populations of 
Nelson's checker-mallow must meet the following three criteria related 
to habitat quality and management:
    1. Prairie quality. Sites supporting populations of Nelson's 
checker-mallow must be managed for high-quality prairie habitat, which 
consists of a diversity of native, non-woody plant species; low 
frequency of aggressive, nonnative plant species and encroaching woody 
species; and essential habitat elements for native pollinators.
    2. Security of habitat. A substantial portion of the habitat for 
the populations should either be owned or managed by a government 
agency or private conservation organization that identifies maintenance 
of the species and the prairie ecosystem upon which it depends as the 
primary management objective for the site, or the site must be 
protected by a permanent or long-term conservation easement or covenant 
that commits present and future landowners to the conservation of the 
species.
    3. Management, monitoring, and control of threats. Each population 
must be managed appropriately to ensure the maintenance or restoration 
of quality prairie habitat and to control threats to the species. Use 
of herbicides, mowing, burning, or livestock grazing in management 
should be implemented with appropriate methods and timing to avoid 
impacts to listed plant species. Management should be coordinated with 
adjacent landowners to minimize effects of pesticide drift, changes in 
hydrology, timber harvest, or road/utility maintenance. Species that 
may hybridize with Nelson's checker-mallow should be managed as 
appropriate to avoid contact with these taxa. Other potential threats 
relating to scientific research, overcollection, vandalism, 
recreational impacts, or natural herbivory/parasitism should be 
successfully managed so as not to significantly impair recovery of the 
species. Management and monitoring plans must be approved by the 
Service and should include standardized monitoring and performance 
criteria that will be used to assess the plans' effectiveness following 
implementation and to allow for adaptive management, as necessary. 
Management plans should include a focus on protecting habitat 
heterogeneity within protected sites and across a range of elevations 
and aspects to buffer the potential effects of climate change.
    Of the 42 independent populations of Nelson's checker-mallow 
(having 200 plants or more), 38 have formal management plans that 
address habitat quality and threats. Of these 38 populations, 26 are in 
public ownership and thus are considered protected in perpetuity from 
development; one site is owned and protected by a nongovernmental 
conservation organization; and the remaining 11 privately owned sites 
are protected by conservation easements. Four of the 42 populations, 
which account for less than 1 percent of the total number of Nelson's 
checker-mallow plants, and 10 percent of the populations, have no 
protection and lack management plans. Given that a majority of 
populations are managed in accordance with a formal management plan and 
are protected by virtue of ownership or conservation easement, we 
conclude that this recovery criterion has been met.

[[Page 71495]]

Delisting Criterion 4: Genetic Material Is Stored in a Facility 
Approved by the Center for Plant Conservation
    The recovery plan specifies that stored genetic material in the 
form of seeds must represent the species' geographic distribution and 
genetic diversity through collections across the full range of the 
species. Collections from large populations are particularly important 
as reservoirs of genetic variability within the species.
    Nelson's checker-mallow seeds are currently stored at four separate 
repositories. The majority of stored seeds, approximately 408 kilograms 
(900 pounds) or about 112,500,000 seeds, are located at the Corvallis 
Plant Materials Center (PMC) operated by the Natural Resources 
Conservation Service (NRCS) of the U.S. Department of Agriculture 
(USDA) in Corvallis, Oregon. Seeds in this collection were sourced 
primarily from production fields, which are maintained specifically to 
produce seed, and are used for habitat restoration, population 
augmentation, and out-planting throughout the range of the species. In 
addition, approximately 29,000 seeds are stored at the Rae Selling 
Berry Seed Bank at Portland State University in Portland, Oregon. This 
collection was sourced from Lane, Linn, Benton, Marion, Polk, Yamhill, 
and Tillamook Counties in Oregon, and Lewis County in Washington. A 
third, smaller collection of approximately 705 Nelson's checker-mallow 
seeds from locations in Washington is held at the Miller Seed Vault at 
the University of Washington's Botanical Gardens in Seattle, 
Washington.
    In addition to storage in these three regional repositories, a 
subset of seeds from the Rae Selling Berry Seed Bank and the Miller 
Seed Vault has been sent to the National Laboratory for Genetic 
Resource Preservation at Colorado State University in Fort Collins, 
Colorado. Both the Rae Selling Berry Seed Bank and Colorado State 
University facility are certified by the Center for Plant Conservation. 
Collectively, the stored seed represents the geographic range of 
Nelson's checker-mallow, and part of this stored seed is in facilities 
certified by the Center for Plant Conservation. Therefore, we conclude 
that this criterion has been met.
Delisting Criterion 5: Post-Delisting Monitoring (PDM) Plans and 
Agreements To Continue PDM Are in Place and Ready for Implementation at 
the Time of Delisting
    The recovery plan specifies that monitoring of populations 
following delisting will verify the ongoing recovery of the species, 
provide a basis for determining whether the species should be again 
placed under the protection of the Act, and provide a means of 
assessing the continuing effectiveness of management actions.
    The PDM plan for Nelson's checker-mallow outlines an approach to 
monitoring Nelson's checker-mallow for a period of 10 years after the 
species is delisted. This plan addresses the current status of the 
species and provides details associated with monitoring methods and 
implementation, including site selection, data analysis, monitoring 
schedules, and reporting expectations. It also describes potential 
outcomes in the context of how secure the species remains after 
delisting. In addition, the PDM plan outlines roles and 
responsibilities and estimates associated costs. The PDM plan is 
available at Docket No. FWS-R1-ES-2021-0154 on https://www.regulations.gov.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove, and reclassify 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019). On the 
same day, the Service also issued final regulations that, for species 
listed as threatened species after September 26, 2019, eliminated the 
Service's general protective regulations automatically applying to 
threatened species the prohibitions that section 9 of the Act applies 
to endangered species (84 FR 44753; August 27, 2019).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following 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.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects. We consider these same five 
factors in delisting a species (50 CFR 424.11(c) and (e)).
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats--at an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting a cumulative analysis and 
describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in

[[Page 71496]]

the statutory definition of ``threatened species.'' Our implementing 
regulations at 50 CFR 424.11(d) set forth a framework for evaluating 
the foreseeable future on a case-by-case basis. The term foreseeable 
future extends only so far into the future as we can reasonably 
determine that both the future threats and the species' responses to 
those threats are likely. In other words, the foreseeable future is the 
period of time in which we can make reliable predictions. ``Reliable'' 
does not mean ``certain''; it means sufficient to provide a reasonable 
degree of confidence in the prediction. Thus, a prediction is reliable 
if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be listed as an endangered or threatened 
species under the Act. However, it does provide the scientific basis 
that informs our regulatory decision, which involves the further 
application of standards within the Act and its implementing 
regulations and policies. The following is a summary of the key results 
and conclusions from the SSA report; the full SSA report can be found 
at Docket No. FWS-R1-ES-2021-0154 on https://www.regulations.gov.
    To assess Nelson's checker-mallow viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years), redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate conditions, pathogen). In general, species 
viability will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). Using these principles, we 
identified the species' ecological requirements for survival and 
reproduction at the individual, population, and species levels, and 
described the beneficial and risk factors influencing the species' 
viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the species' life-history needs. 
The next stage involved an assessment of the historical and current 
condition of the species' demographics and habitat characteristics, 
including an explanation of how the species arrived at its current 
condition. The final stage of the SSA involved making predictions about 
the species' responses to positive and negative environmental and 
anthropogenic influences. Throughout all of these stages, we used the 
best available information to characterize viability as the ability of 
a species to sustain populations in the wild over time. We use this 
information to inform our regulatory decisions.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability.

Ecological Needs

    Nelson's checker-mallow usually occupies open habitats that are 
free from encroachment of trees and shrubs. In the absence of 
disturbance to set back succession, prairie habitat is subject to woody 
species encroachment, gradually transitioning into shrub or woodland 
habitat. Periodic disturbance, such as fire or fall mowing, are 
necessary to maintain the open, high-light prairie habitats that 
Nelson's checker-mallow populations thrive in. In addition, resilient 
Nelson's checker-mallow populations need a sufficient number of 
individuals to withstand stochastic events and disturbances. The 
minimum viable population size for Nelson's checker-mallow is not 
identified. However, the recovery plan specifies that independent 
populations should number at least 200 individuals (Service 2010, p. 
IV-20), which provides a basis for evaluating population status.
    For Nelson's checker-mallow to be considered viable, the species 
must be able to withstand catastrophic events and adapt to 
environmental changes. This can be achieved with a sufficient number of 
resilient populations distributed across its geographic range and 
representing the range of ecological settings in which the species is 
known to exist. The minimum number of populations required for Nelson's 
checker-mallow has not been determined. However, distribution and 
abundance goals laid out in the recovery plan (Service 2010, pp. IV-35-
IV-36) and described under Recovery Criteria, above, provide a 
benchmark for evaluating the species.

Factors Influencing the Species

    At the time of listing in 1993, the primary threats identified 
affecting Nelson's checker-mallow were urban and agricultural 
development, ecological succession that results in shrub and tree 
encroachment of open prairie habitats, and competition with invasive 
weeds. Planned construction and expansion of a reservoir on Walker 
Creek (a tributary to the Nestucca River) was identified as a future 
threat as associated inundation would result in the loss of many 
plants, including the largest population of the species known to exist 
at the time. The listing rule (58 FR 8235; February 12, 1993) also 
noted the potentially negative effects of overcollection for scientific 
and horticultural purposes, predation by weevils, and small population 
size. Some inadequacies in regulatory mechanisms were also identified. 
Subsequent to listing, climate change and hybridization were also 
identified as potential threats to the viability of Nelson's checker-
mallow.
    We considered all of these threats when considering whether the 
species continues to warrant protection under the Act. The threat of 
inundation never materialized; the proposed reservoir was not 
constructed, given that Walker Creek was designated as part of Oregon's 
State Scenic Waterway program in 1992, and as part of the National Wild 
and Scenic Rivers program in 2019 (Oregon Department of Parks and 
Recreation 2021, p. 1). These two designations make construction of a 
reservoir in this area unlikely at this time or in the future due to 
additional regulatory requirements. We previously determined that 
overcollection does not occur to such a degree that it has a 
population-level effect, and that regulatory mechanisms are adequately 
reducing the effects of threats that could act at a population scale 
(Service 2012, pp. 22-28). Weevil predation

[[Page 71497]]

occasionally impacts individual plants and may locally affect some 
populations; however, it is seasonal in nature and unpredictable. We 
did not find that weevil predation occurs at spatial and temporal 
scales large enough to affect the overall status of Nelson's checker-
mallow given the plant's current population levels.
    Many sites with small numbers of Nelson's checker-mallow remain 
distributed throughout the species' range. However, the number of 
populations with more than 1,000 plants has increased from 5 when the 
species was listed in 1993 to 24 populations in 2021 (see table 1, 
above; Service 2012, pp. 17-19; Service 2021, p. 18). Therefore, we 
conclude that small population size no longer puts the species at risk 
of extinction. The potential for hybridization among species of the 
same genus remains present. However, we found that the best available 
data indicate that hybridization does not pose a threat to the overall 
status of the species. Additional discussion of these threats is 
available in the recovery plan (Service 2010, pp. II-30-II-31 and 
chapter III), the 2012 5-year review (Service 2012, pp. 22-28), and in 
the 2021 SSA report (Service 2021, pp. 8-10).
    The stressors identified as having population-level effects are 
habitat-related stressors and climate change. The loss, degradation, 
and fragmentation of prairie habitats have cascading effects that 
result in smaller population sizes, loss of genetic diversity, reduced 
gene flow among populations, destruction of population structure, and 
increased susceptibility to local population extirpation caused by 
environmental catastrophes (Service 2010, chapter III). Climate change 
acts primarily by altering habitat quality. Collectively, these 
stressors can contribute to reduced viability through reductions in 
resiliency, redundancy, and representation. The discussion below 
details the causes and consequences of these stressors on Nelson's 
checker-mallow.
Alteration of Natural and Human-Mediated Disturbance Processes
    Change in community structure due to plant succession has been a 
serious long-term stressor to Nelson's checker-mallow. Habitats 
occupied by this species contain native grassland species, as well as 
numerous introduced taxa, and are prone to transition to a later seral 
stage of vegetative development. The natural transition of prairie to 
forest in the absence of disturbance such as fire can lead to the loss 
of Nelson's checker-mallow sites (Service 2012, p. 24). However, active 
management of habitat through mowing and prescribed burning is 
effective in reducing Nelson's checker-mallow's exposure to this 
stressor.
Habitat Conversion to Agricultural and Urban Use
    Agricultural and urban development has modified and destroyed 
prairie habitats, resulting in fragmented, widely distributed patches 
(Service 2012, p. 24). Urban development in particular results in 
permanent loss of habitat and is of special concern where existing 
prairie habitat exists adjacent to urban areas (Service 2010, p. III-
2). The greatest habitat losses due to land conversion are historical, 
although periodic additional losses of habitat on private lands may 
occur. Exposure of Nelson's checker-mallow populations to this stressor 
is mitigated by protections associated with public land ownership, 
conservation measures described later in this document, and State 
regulations requiring mitigation and restoration of degraded habitat 
(see Conservation Efforts and Regulatory Mechanisms, below).
Invasion by Nonnative Plants
    Habitats occupied by Nelson's checker-mallow contain a mix of 
native and nonnative species. As described above, alteration of 
disturbance processes results in woody encroachment of prairie 
habitats. Nonnative woody species have been of particular concern, as 
they can rapidly proliferate and degrade open prairie sites (Service 
2012, p. 24). In addition, nonnative, thatch-forming grasses may 
effectively limit recruitment (Institute for Applied Ecology (IAE) 
2017, p. 1). Although invasion by nonnative plants remains a primary 
stressor to Nelson's checker-mallow populations, management practices 
including mowing, burning, and shrub removal are an effective approach 
to mediating these effects.
Climate Change
    In the Pacific Northwest, temperature increases of 3 to 6 degrees 
Celsius ([deg]C) (5.4 to 10.8 degrees Fahrenheit ([deg]F)) are 
predicted by the end of the 21st century (Bachelet et al. 2011, p. 
414). Although winter precipitation is predicted to increase, increased 
summer temperatures are expected to cause increased evapotranspiration, 
resulting in reduced growing season soil moisture (Bachelet et al. 
2011, p. 414) and ultimately affecting prairie habitat quality. 
Detailed quantitative estimates of the effects of these conditions on 
Nelson's checker-mallow populations are not available. However, 
vulnerability assessments show the species to be moderately vulnerable 
to the effects of climate change (Steel et al. 2011, p. 9).
    In order for the species to be resilient to changing environmental 
conditions and remain viable into the future, maintenance of large 
populations in heterogenous habitats across the range of the species is 
required (Service 2010, p. IV-6). Management activities that maintain 
open prairie habitats, including mowing, burning, and shrub removal, 
have resulted in an increase in the number of large populations 
throughout the range of the species. As described below, the majority 
of Nelson's checker-mallow sites are managed in accordance with 
conservation programs that ensure maintenance of prairie conditions and 
promote the existence of viable populations into the future.

Current Condition

    We assessed the current condition of Nelson's checker-mallow by 
using the best available information to estimate resiliency, 
redundancy, and representation. We sourced data for this analysis 
primarily from the Threatened and Endangered Plant Geodatabase (version 
12/31/2019), developed by IAE under a cooperative agreement with the 
Service for the purposes of tracking the status of species listed under 
the Act in the Willamette Valley. Additional data were compiled from 
supplementary reports (IAE 2019, entire), location-specific records, 
and other information in our files. We use the term ``site'' rather 
than ``population'' to refer to our analytical units throughout our 
current and future conditions analyses to avoid confusion; the recovery 
plan defines an independent population as one that contains more than 
200 individual plants, but we evaluated sites of all sizes.
Resiliency
    Resiliency, the ability of populations to withstand stochastic 
events, is commonly determined as a function of metrics such as 
population size, growth rate, or habitat quality and quantity. We 
evaluated the current resiliency of Nelson's checker-mallow sites on 
the basis of abundance, as well as measurable habitat characteristics 
that represent the habitat-related stressors discussed above. The four 
specific metrics we included in our assessment of resiliency 
(abundance, prairie habitat condition, site management, and site 
protection) are discussed in more detail below. A complete description 
of our analytical approach to current

[[Page 71498]]

conditions is available in the SSA report (Service 2021, pp. 19-22). 
Abundance was scored based upon the total number of plants within a 
site, based on the most recent surveys. Sites were scored as 1 (Low: 
fewer than 200 plants), 2 (Moderate: 200-1,999 plants), or 3 (High: 
equal to or more than 2,000 plants). These categorical thresholds 
correspond to recovery goals, which state that recovery targets may be 
achieved with a combination of at least 2 populations that number at 
least 2,000 individuals and sites with less than 200 plants are not 
considered independent populations.
    Prairie habitat condition is a measure of overall habitat quality 
and was calculated using four distinct habitat metrics that are likely 
to influence population resiliency: percent woody cover, percent native 
cover, native plant richness (number of unique species present), and 
invasive plant cover. For each site where data on these criteria are 
available, we assigned a score of 1 (Poor), 2 (Fair), or 3 (Good) for 
each habitat metric. We then determined overall prairie habitat 
condition for each site by averaging individual habitat metric scores. 
Additional detail about scoring categories for each individual metric 
is available in the SSA report (Service 2021, pp. 19-22).
    Site management reflects the potential for prairie habitat 
degradation due to natural succession in the absence of natural and 
anthropogenic disturbance regimes. Site management may also be 
influential in mediating the effects of climate change through the 
maintenance of large populations in heterogenous habitats distributed 
across the range of the species. To account for existing site 
management that serves to offset these stressors, we assigned each site 
a score of 1 (Poor: not managed for prairie conditions or unknown), 2 
(Fair: generally managed for prairie conditions but no management plan 
in place), or 3 (Good: managed for prairie conditions with a management 
plan in place).
    Site protection is a measure of the potential for losing Nelson's 
checker-mallow sites to agricultural and urban development. We used 
site ownership and the existence of conservation agreements to assess 
how well each site is protected from development, assigning each site a 
score of 1 (Poor: private ownership with no conservation easement or 
similar program), 2 (Fair: private ownership with conservation easement 
or similar program), or 3 (Good: public ownership or private 
conservation organization ownership).
    To estimate resiliency for each site, we calculated a condition 
score by averaging the scores for abundance, mean prairie habitat 
condition, site management, and site protection. We weighted management 
twice as much as the other factors due to its relative importance to 
long-term population resiliency (Service 2010, p. IV-5; Service 2021, 
p. 21). Based on overall scores, current condition of each site was 
classified as high (score of greater than or equal to 2.5), moderate 
(score of 1.75-2.49), or low (score of less than 1.75).
    Currently, we know of 66 sites containing Nelson's checker-mallow. 
Thirty-one of these sites (47 percent) are in high condition, while 29 
of them (44 percent) are in moderate condition. Range-wide, only six 
sites (9 percent) are in low condition (Service 2021, pp. 21-26). If 
this analysis were limited to the 42 independent populations (having 
200 plants or more), 31 populations (74 percent) would score as high 
condition, 7 populations (17 percent) would score as moderate 
condition, and 4 populations (9 percent) would score as low. These 
results demonstrate relatively high resiliency across the range of 
Nelson's checker-mallow.
Redundancy
    Redundancy is defined as a species' ability to withstand 
catastrophic events and is determined as a function of the number of 
populations, as well as their distribution and connectivity. The 
historical distribution of Nelson's checker-mallow populations is 
largely unknown. Throughout its range, Nelson's checker-mallow is 
restricted to remnant prairie habitats that are highly fragmented due 
to a history of land conversion and natural succession following 
alterations to disturbance cycles. However, since the time of listing 
in 1993, habitat restoration, reintroductions, and habitat protection 
have collectively improved the status of the species. Among the 42 
independent populations, more than 330,000 individual plants are 
distributed across 6 of the 7 recovery zones (Service 2021, pp. 15, 
27), demonstrating overall good redundancy.
Representation
    Representation refers to the ability of a species to adapt to 
change, and is based upon considerations of geographic, genetic, 
ecological, and niche diversity. Because we lack information about the 
genetic diversity of the species, we rely on geographical and 
ecological diversity in our assessment of representation. Populations 
(sites with 200 plants or more) of Nelson's checker-mallow are 
currently distributed in 6 of the 7 recovery zones and occur in both 
the Willamette Valley and in the Coast Range. The species occupies a 
range of prairie sites with various soil textures and moisture levels 
and occurs in a wide range of plant communities including meadows, 
marshes, wetlands, riparian/tree shrub forests, and disturbed areas. 
This indicates that the species has the capacity to adapt to a variety 
of environmental conditions and has good representation.

Future Viability

    To assess the future viability of Nelson's checker-mallow, we 
considered the factors that will influence the species in the 
foreseeable future. We define the foreseeable future as 25 to 50 years. 
This interval was chosen because it encompasses the length of time over 
which we conclude we can make reliable predictions about the 
anticipated effect of climate change. In addition, this period of time 
is sufficient to observe population trends for the species, based on 
its life-history characteristics. It also captures the terms of many of 
the management plans and conservation easements that are in effect at 
Nelson's checker-mallow sites.
    We determined that Nelson's checker-mallow will continue to be 
influenced by the factors that have historically influenced and are 
currently influencing the species, albeit at different relative rates 
into the future. Therefore, in our analysis of future viability, we 
considered habitat-related changes and climate change. We considered 
the specific sources of habitat loss, degradation, and fragmentation 
(alteration of natural and human-mediated disturbance processes, 
habitat conversion to agricultural and urban use, and invasion by 
nonnative plants) in light of ongoing conservation support, including 
habitat management and site protection.
    We make several assumptions about ongoing conservation support in 
the foreseeable future. Support for the conservation of Nelson's 
checker-mallow has been high among government agencies, nongovernmental 
conservation organizations, and some private landowners. We assume that 
management of existing sites and priority recovery and management 
actions for the species will continue at approximately the current 
pace, and that the species will continue to benefit from this ongoing 
conservation support. We base this assumption on the number of Nelson's 
checker-mallow sites that have long-term or perpetual management 
agreements. These plans vary in scope and complexity across ownerships, 
but all provide at least a basic level of habitat management that

[[Page 71499]]

will benefit Nelson's checker-mallow. We expect adaptive management in 
response to changing conditions at sites with current plans, and 
efforts to develop new management plans at sites without plans. This is 
based on the commitment of the wide variety of conservation partners 
with whom we collaborate on similar prairie habitat conservation 
efforts. These partners typically tier their conservation efforts to 
the 2010 recovery plan that includes Nelson's checker-mallow with 
several other listed plants and insects, emphasizing restoration and 
maintenance of prairie habitat for the benefit of numerous species. 
This provides an impetus for continued formalized management of these 
sites and maintenance of Nelson's checker-mallow habitat.
    Although sites not protected by virtue of ownership or conservation 
easement may be at risk due to development in the future, these sites 
are in the minority and their unprotected status is reflected in our 
analysis.
Resiliency
    To assess the future viability of Nelson's checker-mallow, we 
considered a single scenario where we assumed that climate change will 
result in a dramatic reduction in abundance across the species' range 
but site management and protection will remain intact, as discussed 
above. We then reassessed population condition, applying the same 
methodology used for assessing current condition.
    Published assessments do not provide detailed quantitative 
estimates of the effects of climate change on Nelson's checker-mallow 
populations. To evaluate the effects of climate change on individual 
sites, we characterized a worst-case future scenario in terms we could 
use in our analysis of future condition. In consultation with species 
experts and conservation partners, we defined the worst-case scenario 
as one where increased mortality and decreased recruitment culminate in 
a 50 percent reduction in abundance at all sites. We consider a 50 
percent reduction to represent the upper boundary of plausibility as 
the actual effects of climate change on population sizes are likely to 
be more moderate based on climate change vulnerability assessment 
modeling (Steel et al. 2011, p. 30), and sites are expected to be 
protected and adaptively managed as described above. Nevertheless, 
assuming a 50 percent reduction provides a generous margin of error if 
these assumptions are violated. We acknowledge that a uniform response 
to climate change across the species' range is not likely, and that 
some populations may fare better than others under future conditions. 
However, this approach serves to demonstrate future viability under 
challenging future conditions.
    In the scenario described above, resiliency declined modestly, with 
60 sites remaining in high or moderate condition (see figure 1, below). 
The number of sites in high overall condition decreased from 31 to 25, 
relative to current condition, while the number of sites in moderate 
condition increased from 29 to 35. Sites reduced to moderate condition 
are relatively well-distributed throughout the range of the species, 
with one site occurring in the Coast Range recovery zone, three sites 
occurring in the Corvallis West recovery zone, one site occurring in 
the Portland recovery zone, and one site occurring in the Salem West 
recovery zone. The number of sites in overall low condition (six sites) 
does not change in the foreseeable future.
    These changes in overall future condition are driven by changes in 
abundance. In our future scenario, 6 additional sites fall below 200 
individual plants and, therefore, receive a low score for abundance. 
Sites with low abundance are more vulnerable to stochastic events and 
carry a higher risk for extirpation in the future. If we only consider 
sites that retain independent populations with 200 plants or more, the 
number of populations in high condition decrease from 31 to 27, the 
number in moderate condition remain at 7, and the number in low 
condition decrease from 4 to 2 for future overall condition. The 
relative importance of site management and protection in guarding 
against habitat loss and maintaining site resiliency even in sites with 
small numbers of plants is reflected in the relatively modest downward 
shift in overall future condition, relative to current condition (see 
figure 2, below).
Redundancy
    Our analysis of future condition indicates that redundancy will be 
maintained in the foreseeable future; 66 extant sites will remain well-
distributed throughout the current known range of the species. 
Consequently, no major changes in the species' ability to withstand 
catastrophes in the future is expected.
Representation
    The distribution of extant Nelson's checker-mallow sites does not 
change under the parameters of our future condition analysis. 
Consequently, changes in ecological diversity are not projected to 
materialize as a result of climate change, and the species is likely to 
continue to occupy prairie habitat throughout its range and retain its 
adaptive capacity.
BILLING CODE 4333-15-P

[[Page 71500]]

[GRAPHIC] [TIFF OMITTED] TR17OC23.009


[[Page 71501]]


[GRAPHIC] [TIFF OMITTED] TR17OC23.010

BILLING CODE 4333-15-C
    Collectively, our analysis of the resiliency, redundancy, and 
representation demonstrates that in 25 to 50 years, the viability of 
Nelson's checker-mallow will not be significantly reduced.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the species. To assess the current and future condition of 
the species, we evaluate the effects of all the relevant factors that 
may be influencing the species, including threats and conservation 
efforts. Because the SSA framework considers not just the presence of 
the factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the

[[Page 71502]]

cumulative effects of the factors and replaces a standalone cumulative 
effects analysis.

Conservation Efforts and Regulatory Mechanisms

    Despite permanent habitat loss and modification, habitat 
restoration and protection projects have been implemented on both 
public and private lands throughout the range of Nelson's checker-
mallow. These projects offset some of the permanent habitat losses and, 
as a result, Nelson's checker-mallow habitat is increasing (Bartow 
2020, pers. comm.), particularly in the Corvallis West and Salem West 
recovery zones. The Wetland Reserve Program and other Farm Bill 
programs administered by the USDA's NRCS have been widely implemented 
in the Willamette Valley. Other programs, such as the Service's 
Partners for Fish and Wildlife program and the Act's section 10 
programs (i.e., safe harbor agreements and habitat conservation plans), 
are also available to landowners. These programs are focused on habitat 
restoration and protection and have contributed significantly to 
improving the status of Nelson's checker-mallow.
    Range-wide, the majority of the 66 sites known to support Nelson's 
checker-mallow benefit from some type of conservation measure, by 
virtue of ownership or habitat management agreements or both. Fifty-
seven of the 66 total Nelson's checker-mallow sites are managed in 
accordance with the conservation programs described above, which ensure 
maintenance of prairie conditions required by the species. Of these 
sites, 44 are owned by a public entity. Regarding the 42 independent 
populations (having 200 plants or more), 38 have formal management 
plans, 26 of which are in public ownership, which offers protection 
from prairie habitat conversion to other uses. The terms of management 
agreements vary, but they are typically valid for 10 to 30 years, with 
some extending into perpetuity. Collectively, these management regimes 
ensure habitat protections at a decades-long scale for most sites.

Determination of Nelson's Checker-Mallow's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the Act's definition of an endangered species 
or a threatened species. The Act defines an ``endangered species'' as a 
species that is in danger of extinction throughout all or a significant 
portion of its range, and a ``threatened species'' as a species that is 
likely to become an endangered species within the foreseeable future 
throughout all or a significant portion of its range. The Act requires 
that we determine whether a species meets the definition of endangered 
species or threatened species because of any of the following 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.

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we found that the primary drivers of the status of Nelson's 
checker-mallow have been habitat loss, degradation, and fragmentation 
due to alteration of natural and human-mediated disturbance processes 
that maintain open prairie habitat, land conversion to agricultural and 
urban use, and invasion by nonnative plants (Factor A). The best 
available information indicates that, while still present to some 
degree, overcollection (Factor B), predation (Factor C), small 
population size (Factor E), and hybridization (Factor E) are no longer 
threats to the viability of the species.
    Potential inundation of the largest and most vigorous population 
(Walker Flat) by reservoir development was seen as a major threat at 
the time of listing. The threat of inundation never materialized as the 
proposed reservoir was not constructed and is highly unlikely in the 
future due to the regulatory mechanisms (Factor D) discussed above. 
Other habitat threats (i.e., alteration of disturbance processes and 
associated woody encroachment, the threat of invasive plants, land use 
conversion) are still present on the landscape; however, the magnitude 
and scope of these threats have decreased from historical levels, and 
have been offset by a variety of management and conservation measures 
in the 30 years since Nelson's checker-mallow was listed. Active 
maintenance of prairie habitat through mowing and prescribed burning 
has demonstrably reduced the threat posed by alteration of disturbance 
processes and associated woody encroachment (Factor A). The threat of 
invasive plants (Factor A) has also been significantly reduced as a 
result of active management.
    Range-wide, 58 of the 66 sites known to contain Nelson's checker-
mallow have formalized management plans. This number of formalized 
management plans is expected to remain relatively constant into the 
foreseeable future. Similarly, 60 Nelson's checker-mallow sites are 
either in public ownership, have been acquired by nongovernmental 
conservation organizations, or are enrolled in conservation easement 
programs (Factor D), which has substantially reduced the risk of 
habitat and population losses due to land-use conversion (Factor A). 
The number of sites protected from conversion to agricultural or urban 
use due to public or conservation organization ownership is expected to 
remain relatively constant in the future. In sum, despite the continued 
presence of habitat-related threats on the landscape, advances in site 
management and protection have led to a significant reduction in 
threats and overall improvement in the status of the species since 
listing.
    When Nelson's checker-mallow was listed, we estimated that the 
species occurred at 48 sites, only 5 of which contained more than 1,000 
individuals, and 30 percent of the known individuals of the species 
were threatened with inundation due to the planned construction of a 
dam. At the time of the SSA report, 334,968 individual plants were 
distributed across the historical range of the species. They occurred 
at 66 sites, 24 of which have at least 1,000 individuals, and 
inundation was no longer considered a likely threat. Our analysis of 
current conditions, based on abundance, habitat quality, site 
management, and site protection, shows that 60 of those sites are in 
either moderate or high condition, indicating relatively high 
resiliency. The sites are distributed among six of the seven recovery 
zones and occur in varied geographical and ecological settings, 
demonstrating overall high redundancy and representation. Recent 
surveys also show increasing trends in plant abundance across the 
species' range, with the total number of plants increasing to 426,032 
in 2022 (Service 2022, pp. 2-3).
    Subsequent to listing, climate change and its potential to 
negatively affect prairie habitat was identified as a potential threat 
to Nelson's checker-mallow. We considered the potential consequences of 
climate change on the species and evaluated a worst-case future 
scenario that included a 50 percent reduction in the size of all known 
populations across the range of the species in the next 25 to 50 years. 
Even with such severe population

[[Page 71503]]

reduction, the species retained appreciable levels of resiliency, 
redundancy, and representation, with only six sites showing a reduction 
in resiliency, and the maintenance of geographical and ecological 
distribution of the species.
    We recognize that some habitat-related threats remain present, and 
they have ongoing impacts to Nelson's checker-mallow populations. We 
acknowledge that the specific effects of climate change on Nelson's 
checker-mallow and its habitat are uncertain and may have a negative 
impact. However, we found that current and expected patterns in site 
protection and habitat management (Factor D) are sufficient to prevent 
effects to the species such that it would meet the Act's definition of 
an endangered species or a threatened species. Thus, after assessing 
the best available information, we determine that Nelson's checker-
mallow is not in danger of extinction now or likely to become so within 
the foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
within the foreseeable future throughout all or a significant portion 
of its range. The court in Center for Biological Diversity v. Everson, 
435 F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of 
the Final Policy on Interpretation of the Phrase ``Significant Portion 
of Its Range'' in the Endangered Species Act's Definitions of 
``Endangered Species'' and ``Threatened Species'' (Final Policy; 79 FR 
37578; July 1, 2014) that provided if the Services determine that a 
species is threatened throughout all of its range, the Services will 
not analyze whether the species is endangered in a significant portion 
of its range.
    Therefore, we proceed to evaluating whether the species is 
endangered or likely to become so within the foreseeable future in a 
significant portion of its range--that is, whether there is any portion 
of the species' range for which it is true that both (1) the portion is 
significant, and (2) the species is in danger of extinction now or 
likely to become so within the foreseeable future in that portion. 
Depending on the case, it might be more efficient for us to address the 
``significance'' question or the ``status'' question first. We can 
choose to address either question first. Regardless of which question 
we address first, if we reach a negative answer with respect to the 
first question that we address, we do not need to evaluate the other 
question for that portion of the species' range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the species' range where the 
species is in danger of extinction now (i.e., endangered) or likely to 
become so within the foreseeable future (i.e., threatened). In 
undertaking this analysis for Nelson's checker-mallow, we choose to 
address the status question first--we consider information pertaining 
to the geographic distribution of both the species and the threats that 
the species faces to identify any portions of the range where the 
species may be endangered or threatened.
    We evaluated the range of Nelson's checker-mallow to determine if 
the species is in danger of extinction now or likely to become so in 
the foreseeable future in any portion of its range. The range of a 
species can theoretically be divided into portions in an infinite 
number of ways. We focused our analysis on portions of the species' 
range that may meet the definition of an endangered or threatened 
species. For Nelson's checker-mallow, we considered whether the threats 
or their effects on the species are greater in any biologically 
meaningful portion of the species' range than in other portions such 
that the species is in danger of extinction now or likely to become so 
within the foreseeable future in that portion.
    We examined the following threats: habitat loss, degradation, 
fragmentation due to alteration of natural and human-mediated 
disturbance processes that maintain open prairie habitat; land 
conversion to agricultural and urban use; invasion by nonnative plants; 
and climate change, including cumulative effects.
    The threat of habitat loss from alteration of disturbance 
processes, land-use conversion, and invasion of nonnative plants has 
decreased in all portions of the species' range since the time of 
listing, largely due to land protection efforts and active habitat 
management. Although these residual threats influence the species 
variably across its range, there is no portion of the range where there 
is currently a concentration of threats at a biologically meaningful 
scale, relative to other areas of the range. In the foreseeable future, 
climate change may interact synergistically with other threats to 
negatively affect habitat quality. We acknowledge that uniform response 
across the species' range is not likely, and that some populations may 
fare worse than others under future conditions. However, the best 
available information does not indicate that any portion of the 
species' range will deteriorate disproportionately in the foreseeable 
future. We anticipate that any negative consequence of co-occurring 
threats will be successfully addressed through the same active 
management actions that have contributed to the ongoing recovery of 
Nelson's checker-mallow and that are expected to continue into the 
future.
    We found no portion of the Nelson's checker-mallow range where the 
biological condition of the species differs from its condition 
elsewhere in its range such that the status of the species differs from 
its condition elsewhere in its range.
    Therefore, no portion of the species' range provides a basis for 
determining that the species is in danger of extinction now or likely 
to become so within the foreseeable future in a significant portion of 
its range, and we determine that the species is not in danger of 
extinction now or likely to become so within the foreseeable future in 
any significant portion of its range. This does not conflict with the 
courts' holdings in Desert Survivors v. U.S. Department of the 
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018), and Center 
for Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 
2017), because, in reaching this conclusion, we did not need to 
consider whether any portions are significant and, therefore, did not 
apply the aspects of the Final Policy's definition of ``significant'' 
that those court decisions held were invalid.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that Nelson's checker-mallow does not meet the 
definition of an endangered species or a threatened species in 
accordance with sections 3(6) and 3(20) of the Act. In accordance with 
our regulations at 50 CFR 424.11(e)(2), because Nelson's checker-mallow 
does not meet the Act's definition of an endangered or a threatened 
species, we are removing Nelson's checker-mallow from the Federal List 
of Endangered and Threatened Plants.

Effects of This Rule

    This final rule revises 50 CFR 17.12(h) by removing Nelson's 
checker-mallow from the Federal List of Endangered and Threatened 
Plants. The prohibitions and conservation measures provided by the Act, 
particularly through sections 7 and 9, will no longer apply to this 
species. Federal agencies will no longer be required to consult with 
the Service under section 7 of the Act in the event

[[Page 71504]]

that activities they authorize, fund, or carry out may affect Nelson's 
checker-mallow. There is no critical habitat designated for this 
species, so there is no effect to 50 CFR 17.96.

Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires us, in cooperation with the 
States, to implement a monitoring program for not less than 5 years for 
all species that have been delisted due to recovery. PDM refers to 
activities undertaken to verify that a species delisted due to recovery 
remains secure from the risk of extinction after the protections of the 
Act no longer apply. The primary goal of PDM is to monitor the species 
to ensure that its status does not deteriorate, and if a decline is 
detected, to take measures to halt the decline so that proposing it as 
endangered or threatened is not again needed. If at any time during the 
monitoring period data indicate that protective status under the Act 
should be reinstated, we can initiate listing procedures, including, if 
appropriate, emergency listing.
    We are delisting Nelson's checker-mallow due to recovery based on 
our analysis in the SSA report, expert opinions, and conservation 
actions taken. We have prepared a PDM plan that discusses the current 
status of the taxon and describes the methods for monitoring its 
status. The PDM plan: (1) summarizes the status of Nelson's checker-
mallow at the time of delisting; (2) describes frequency and duration 
of monitoring; (3) discusses monitoring methods and sampling regimes; 
(4) defines what triggers will be evaluated to address the need for 
additional monitoring; (5) outlines reporting requirements and 
procedures; (6) provides a schedule for implementing the PDM plan; and 
(7) defines responsibilities. It is our intent to work with our 
partners towards maintaining the recovered status of Nelson's checker-
mallow. To view a copy of the PDM plan, see ADDRESSES, above.

Required Determinations

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

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be 
prepared in connection with determining a species' listing status 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).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a government-to-government basis. In accordance with 
Secretary's Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. Several Nelson's checker-mallow sites 
occur on Confederated Tribe of Grand Ronde (Tribe) lands, and some 
sites may lie within the usual and accustomed places for Tribal 
collection and gathering of resources. The Tribe has a plan in place to 
manage and monitor Nelson's checker-mallow and a new memorandum of 
understanding with the Service for data sharing.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the Service's Oregon Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this final rule are the staff members of the 
Fish and Wildlife Service's Species Assessment Team and the Oregon Fish 
and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


Sec.  17.12  [Amended]

0
2. In Sec.  17.12, in paragraph (h), amend the List of Endangered and 
Threatened Plants by removing the entry for ``Sidalcea nelsoniana'' 
under FLOWERING PLANTS.

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-22759 Filed 10-16-23; 8:45 am]
BILLING CODE 4333-15-P