[Federal Register Volume 78, Number 156 (Tuesday, August 13, 2013)]
[Rules and Regulations]
[Pages 49165-49183]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19385]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0018; 4500030113]
RIN 1018-AZ46
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Sphaeralcea gierischii (Gierisch Mallow)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, designate critical
habitat for Sphaeralcea gierischii (Gierisch mallow) under the
Endangered Species Act of 1973, as amended (Act). The effect of this
regulation is to designate critical habitat for Gierisch mallow under
the Act. This final rule implements the Federal protections provided by
the Act for this species.
DATES: This rule is effective on September 12, 2013.
ADDRESSES: This final rule, final economic analysis, and final
environmental assessment are available on the Internet at http://www.regulations.gov and at http://www.fws.gov/southwest/es/arizona/.
Comments and materials received, as well as supporting documentation
used in preparing this final rule are available for public inspection
at http://www.regulations.gov. All of the comments, materials, and
documentation that we considered in this rulemaking are available by
appointment, during 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.
The coordinates, or plot points, or both from which the critical
habitat maps are generated are included in the administrative record
for this rulemaking and are available at http://www.fws.gov/southwest/es/arizona/, and at http://www.regulations.gov at Docket No. FWS-R2-ES-
2013-0018, and at the Arizona Ecological Services Office (see FOR
FURTHER INFORMATION CONTACT). Any additional tools or supporting
information that we may develop for this rulemaking will also be
available at the Fish and Wildlife Service Web site and Field Office
set out above, and may also be included in the preamble and/or at
http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Steve Spangle, Field Supervisor, U.S.
Fish and Wildlife Service, Arizona Ecological Services 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
In this final rule, we refer to Sphaeralcea gierischii as Gierisch
mallow.
Why we need to publish a rule. This is a final rule to designate
critical habitat for the Gierisch mallow. Under the Endangered Species
Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), any species
that is determined to be an endangered or threatened species requires
critical habitat to be designated, to the maximum extent prudent and
determinable. Designations and revisions of critical habitat can only
be completed by issuing a rule.
Elsewhere in today's Federal Register, we list the Gierisch mallow
as an endangered species. On August 17, 2012, we published in the
Federal Register a proposed critical habitat designation for Gierisch
mallow (77 FR 49894). Section 4(b)(2) of the Act states that the
Secretary shall designate critical habitat on the basis of the best
scientific data available after taking into consideration the economic
impact, the impact on national security, and any other relevant impact
of specifying any particular area as critical habitat.
The critical habitat areas we are designating in this rule
constitute our current best assessment of the areas that meet the
definition of critical habitat for Gierisch mallow. We are designating
approximately 5,189 hectares (ha) (12,822 acres (ac)) as critical
habitat in two units in both Mohave County, Arizona, and Washington
County, Utah, as follows:
Table 1--Designated Critical Habitat Units for Gierisch Mallow
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Federal State
Critical habitat unit ------------------------------------------------------------------------------------------------------------------------------ Totals
Arizona Utah Arizona Utah
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Unit 1. Starvation Point........... 220 ha (544 ac)............... 802 ha (1,982 ac)............. 249 ha (615 ac).............. 68 ha (167 ac)............... 1,339 ha (3,309 ac)
Unit 2. Black Knolls............... 3,586 ha (8,862 ac)........... 0............................. 263 ha (651 ac).............. 0............................ 3,850 ha (9,513 ac)
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Totals......................... 3,806 ha (9,406 ac)........... 802 ha (1,982 ac)............. 512 ha (1,266 ac)............ 68 ha (167 ac)............... 5,189 ha (12,822 ac)
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We have prepared an economic analysis of the designation of
critical habitat. In order to consider economic impacts, we have
prepared an analysis of the economic impacts of the critical habitat
designations and related factors. We announced the availability of the
draft economic analysis (DEA) in the Federal Register on March 28, 2013
(78 FR 18943), allowing the public to provide comments on our analysis.
We have incorporated the comments and have completed the final economic
analysis (FEA) concurrently with this final designation.
We have prepared an environmental assessment of the designation of
critical habitat. In order to consider environmental impacts, we have
prepared an assessment of the environmental impacts of the critical
habitat designations and related factors. We announced the availability
of the draft environmental assessment in the Federal Register on March
28, 2013 (78 FR 18943), allowing the public to provide comments on our
assessment.
[[Page 49166]]
We have incorporated the comments and have completed the final
environmental assessment concurrently with this final designation.
Peer review and public comment. We sought comments from independent
specialists to ensure that our designation is based on scientifically
sound data and analyses. We obtained opinions from three knowledgeable
individuals with scientific expertise to review our technical
assumptions, analysis, and whether or not we had used the best
available information. These peer reviewers generally concurred with
our methods and conclusions, and provided additional information,
clarifications, and suggestions to improve this final rule. Information
we received from peer review is incorporated in this final designation.
We also considered all comments and information we received during the
comment period.
Previous Federal Actions
All previous Federal actions are described in the final rule to
list the Gierisch mallow as an endangered species under the Act, which
is published elsewhere in today's Federal Register.
Summary of Comments and Responses
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
incorporated into the final rule as appropriate.
We requested written comments from the public on the proposed
designation of critical habitat for the Gierisch mallow during two
comment periods. The first comment period, which was associated with
the publication of the proposed rule, opened on August 17, 2012 (77 FR
49894), 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, draft economic
analysis, and draft environmental assessment 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 two comment letters addressing the proposed critical
habitat. All substantive information provided during comment periods
has either been incorporated directly into this final designation or is
addressed below.
(1) Comment: The commenter noted that the draft environmental
assessment states exclusion of the mine areas would provide an economic
benefit to the community, while not resulting in the extinction of the
species, owing to the protection and restoration measures already in
place.
Our Response: Our draft environmental assessment presented three
alternatives that were analyzed for their effects to the environment.
One of those alternatives, Alternative C, looked at environmental
effects associated with our proposed critical designation if we
excluded the mining areas. The rationale for Alternative C was based on
possible economic benefit to the community. Under section 4(b)(2) of
the Act, we consider the probable economic impacts of specifying any
particular area as critical habitat. Our economic analysis did not
identify any disproportionate costs that are likely to result from the
designation. Consequently, the Secretary is not exerting her discretion
to exclude any areas from this designation of critical habitat for the
Gierisch mallow based on economic impacts. See the discussion under
``Exclusions Based on Economic Impacts.''
(2) Comment: One commenter stated that, as noted in the proposed
rule, the Gierisch mallow is also protected under terms of the Arizona
Native Plant Law, incorporated into their mining lease from the Arizona
State land Department (ASLD), and by section 7(a)(1) of the Act,
requiring the Secretary of the Interior (and the Bureau of Land
Management (BLM)) to use her authorities, including leases on public
lands, in furtherance of species protection.
Our Response: A species is not protected under section 7(a)(1) of
the Act unless it is listed under the Act. (Elsewhere in today's
Federal Register, we published a final rule to list the Gierisch mallow
as an endangered species under the Act.) Section 7 of the Act applies
to listed species and their habitats for projects having a Federal
nexus (occurring on federal lands, having federal funding, or requiring
a federal permit). Section 7 consultations do not apply to ASLD lands
unless a Federal nexus is present.
(3) Comment: One commenter stated that the economic and
environmental analyses have demonstrated conclusively that the plants
are adequately protected through existing mechanisms, and that the
economic benefits of excluding the mining areas from the critical
habitat designation outweigh any environmental benefit from including
them.
Our Response: The environmental assessment did not discuss the
adequacy of existing mechanisms to protect the species in lieu of
listing but instead compared a no action alternative, which includes
Federal listing of the species, to one action alternative that includes
critical habitat designation as described in the proposed rule and a
second action alternative that includes designation of critical
habitat, but with the mine areas excluded. The draft environmental
assessment did not weigh economic benefits against environmental
benefits for any alternative. The economic analysis did not discuss the
adequacy of existing mechanisms to protect the Gierisch mallow nor did
it discuss excluding any lands proposed for critical habitat
designation. The economic analysis discussed the increased costs
associated with designating critical habitat.
(4) Comment: The Service should exclude lands under lease by
Georgia-Pacific or subject to its mining claims because of the economic
impact.
Our Response: Currently, the land being leased by Georgia-Pacific
is administered by the ASLD, and there is no Federal nexus.
Additionally, according to the final economic analysis and its findings
of baseline and incremental impacts, the main costs associated with the
listing of the Gierisch mallow are attributable to consultation with
the Service through section 7 of the Act. Therefore, there are no
projected costs associated with designating critical habitat for the
[[Page 49167]]
Gierisch mallow on ASLD Lands. Because there are no projected costs
associated with the mining operation on ASLD lands, beyond those
attributed to consultation with the Service through section 7 of the
Act, and because the final economic analysis has determined that
Georgia-Pacific does not meet the small business standard, the
Secretary of the Interior is not exercising her discretion to exclude
these lands from critical habitat.
(5) Comment: One commenter asserts that impacts to gypsum mining on
ASLD and BLM lands from the proposed rule should include not only the
value of production foregone due to operational constraints imposed by
the Service, but also lost wages, employment opportunities, royalties
paid to Federal and State lessors, taxes, and the multiplier effect of
these expenditures.
Our Response: As discussed in Chapter 4 of the draft economic
analysis, there is no Federal nexus for gypsum mining on ASLD lands,
and therefore section 7 consultation on these activities is not
necessary and the level of mining is not expected to be affected. BLM
is required to consult with the Service on mining activity occurring on
BLM-managed lands. The final economic analysis includes 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. As such, the draft economic analysis estimated the future
cost of seed collection, transplanting, and propagation for the plant
in areas where mining is expected to occur. As a reduction in future
mining activity is not estimated, there are not expected to be
resultant impacts on local employment or other economic factors.
(6) Comment: One commenter requests omission of misstated
information in the draft economic analysis, specifically, the sentence
in paragraph 178 reading: ``The current mining plans would allow gypsum
deposits suitable for mallow habitat to remain on, at most, 15 acres of
the 400-acre lease area.'' According to the commenter, the lessee would
be responsible for reclamation of the entire site.
Our Response: This sentence has been omitted in the final economic
analysis and the estimated baseline costs have been revised throughout
the report to reflect this change in the area that requires
reclamation. Estimated reclamation costs increase from $77,000 to
$80,000 as a result of this change.
(7) Comment: One commenter provides new information on potential
future gypsum mining activities on BLM lands and the predicted value of
mining claims as it relates to the expected gypsum deposits in those
claims.
Our Response: A formal consultation on these mining activities and
its associated cost has been added to the final economic analysis. In
addition, the information regarding the value of mining claims has been
included in the final economic analysis for context.
(8) Comment: Critical habitat increases threats to private land
because management of critical habitat promotes weeds and fires.
Our Response: Designation of areas as critical habitat does not
require specific management actions in those areas. In the preamble of
this rule, as well as in the August 17, 2012, proposed rule (77 FR
49894), the description of each unit within our critical habitat
designation only identifies special management considerations or
protection that may be needed to maintain the primary constituent
elements (PCEs) necessary for Gierisch mallow. Further, we did not
recommend any management that would be expected to lead to weeds and
fires. The identification of special management considerations or
protection does not mandate such measures take place.
(9) Comment: We received several comments stating that the area
proposed for designation as critical habitat was too large and not
necessary to protect the species.
Our Response: Critical habitat is defined in section 3 of the Act
as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
The areas we are designating as critical habitat for the Gierisch
mallow include all areas that contain the physical or biological
features, such as gypsum soils, pollinators, pollinator habitat, native
vegetation, and areas free of nonnative vegetation, that are essential
to the conservation and survival of the Gierisch mallow. Although the
Gierisch mallow populations occur on less than approximately 186 ha
(460 ac), it is important to protect those gypsum soils that include
pollinator habitat and provide opportunities to aid in the recovery of
the species.
(10) Comment: The Service should recommend excluding livestock from
critical habitat through fencing exclosures.
Our Response: Please refer to the seasonal use suggestions in the
Special Management Considerations or Protection section. Livestock
grazing is not the most serious threat. We know that livestock trample
and eat plants; however, the plants have been documented to recover
from herbivory and trampling. It is more important to reduce livestock
herbivory during the flowering and seeding period so that plants will
have the opportunity to reproduce and contribute to the recovery of the
species. This can be accomplished through various management actions,
including, but not limited to, seasonal rotations for pastures,
reducing stocking rates, or removing livestock completely during
drought years. Some allotments currently have seasonal rotations or
deferred use where pastures are rested from grazing, thereby allowing
the plants and PCEs of critical habitat sufficient recovery. Based on
what we know today, permanently excluding livestock grazing from
critical habitat is not necessary.
Summary of Changes From Proposed Rule
The most significant changes between the August 17, 2012, proposed
rule (77 FR 49894) and this final rule are changes to the primary
constituent elements (PCEs) for the Gierisch mallow and the addition of
discussions regarding land managed by the State of Utah School and
Institutional Trust Land Administration (SITLA). We received
information related to Gierisch mallow being associated with biological
soil crusts within the gypsum soils. Because of this new information,
we include biological soil crusts as a PCE for the Gierisch mallow.
Additionally, 68 ha (167 ac) of Gierisch mallow habitat on SITLA land
is included in our calculations. This area was included in our proposed
rule within critical habitat Unit 1 and was included in our total
proposed critical habitat acreage; however, we reevaluated land
ownership for these 68 ha (167 ac) and verified that they are owned by
SITLA rather than the BLM, and the BLM administers the grazing lease
for these
[[Page 49168]]
lands. This final rule reflects this information. These are the only
significant changes in this final rule.
Critical Habitat
Prudency Determination
Section 4 of the Act, as amended, and implementing regulations (50
CFR 424.12), require that, to the maximum extent prudent and
determinable, the Secretary designate critical habitat at the time the
species is determined to be endangered or threatened. Our regulations
at 50 CFR 424.12(a)(1) state that the designation of critical habitat
is not prudent when one or both of the following situations exist: (1)
The species is threatened by taking or other activity and the
identification of critical habitat can be expected to increase the
degree of threat to the species; or (2) the designation of critical
habitat would not be beneficial to the species.
There is no indication that the Gierisch mallow is threatened by
collection, and there are no likely increases in the degree of threats
to the species if critical habitat is designated. This species is not
the target of collection, and the areas we are designating either have
restricted public access (mine sites) or are already readily open to
the public (BLM land). None of the threats identified to the species
are associated with human access to the sites, with the exception of
the threats associated with recreational activities on BLM land. This
threat, or any other identified threat, is not expected to increase as
a result of critical habitat designation because the BLM cannot control
unauthorized recreational activities, and the designation of critical
habitat does not change the situation.
In the absence of finding that the designation of critical habitat
would increase threats to a species, if there are any benefits to a
critical habitat designation, then a prudent finding is warranted. The
potential benefits of critical habitat to the Gierisch mallow include:
(1) Triggering consultation under section 7 of the Act, in new areas
for actions in which there may be a Federal nexus where it would not
otherwise occur, because, for example, Federal agencies were not aware
of the potential impacts of an action on the species; (2) focusing
conservation activities on the most essential features and areas; (3)
providing educational benefits to State or county governments, or
private entities; and (4) preventing people from causing inadvertent
harm to the species. Therefore, because we have determined that the
designation of critical habitat will not likely increase the degree of
threat to any of the species and may provide some measure of benefit,
we find that designation of critical habitat is prudent for the
Gierisch mallow.
Background
It is our intent to discuss below only those topics directly
relevant to the designation of critical habitat for the Gierisch mallow
in this section of the final rule. For a complete description of the
life history and habitat needs of the Gierisch mallow, see the final
rule listing the Gierisch mallow as an endangered species, published
elsewhere in today's Federal Register.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner requests Federal agency
funding or authorization for an action that may affect a listed species
or critical habitat, the consultation requirements of section 7(a)(2)
of the Act would apply, but even in the event of a destruction or
adverse modification finding, the obligation of the Federal action
agency and the landowner is not to restore or recover the species, but
to implement reasonable and prudent alternatives to avoid destruction
or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographic area occupied by the species at the time it
was listed (in this case, currently occupied areas) are included in a
critical habitat designation if they contain physical or biological
features (1) which are essential to the conservation of the species and
(2) which may require special management considerations or protection.
For these areas, critical habitat designations identify, to the extent
known using the best scientific and commercial data available, those
physical or biological features that are essential to the conservation
of the species (such as space, food, cover, and protected habitat). In
identifying those physical and biological features within an area, we
focus on the principal biological or physical constituent elements
(primary constituent elements such as roost sites, nesting grounds,
seasonal wetlands, water quality, tide, soil type) that are essential
to the conservation of the species. Primary constituent elements (PCEs)
are the elements of physical or biological features that, when laid out
in the appropriate quantity and spatial arrangement to provide for a
species' life-history processes, are essential to the conservation of
the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographic area
occupied by the species at the time it is listed (in this case, outside
currently occupied areas), upon a determination that such areas are
essential for the conservation of the species. For example, an area
currently occupied by the species but that was not occupied at the time
of listing may be essential to the conservation of the species and may
be included in the critical habitat designation. We designate critical
habitat in areas outside the geographic area occupied by a species only
when a designation limited to its range would be inadequate to ensure
the conservation of the species.
[[Page 49169]]
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines, provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will be subject to: (1) Conservation actions
implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) the prohibitions of section 9 of the Act if actions
occurring in these areas may affect the species. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools will continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographic area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection.
These include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographic, and ecological
distributions of a species.
We derive the specific physical or biological features required for
the Gierisch mallow from studies of this species' habitat, ecology, and
life history as described in the Habitat and Life History section of
our final listing rule published elsewhere in today's Federal Register
and in the information presented below. We have determined that the
following physical or biological features are essential for the
Gierisch mallow.
Space for Individual and Population Growth and for Normal Behavior
The Gierisch mallow has a limited distribution; it is only found in
a small area in Utah and Arizona. Within these areas, the Gierisch
mallow requires appropriate soils, associated formations, slope,
drainage, and plant community types within the landscape to provide
space for individual growth and to provide food, water, air, light,
minerals, or other nutritional or physiological requirements. In both
Arizona and Utah, the Gierisch mallow is found in gypsiferous outcrops
of the Harrisburg Member of the Kaibab Formation. In Arizona, these
sites may be affiliated with the following gypsiferous soil series:
Nikey-Ruesh complex,
Gypill-Hobog complex,
Hobog-Tidwell complex,
Hobog-Grapevine complex,
Grapevine-Shelly complex,
Hindu-Rock outcrop-Gypill complex,
Cave-Harrisburg-Grapevine complex, and
Grapevine-Hobcan complex (Service unpublished data).
Sites in Utah are most affiliated with the following soil series
(Service unpublished data, 2012, p. 1):
Badland
Fluvaquents and Torrifluvents, and
Riverwash.
The Gierisch mallow occurs at elevations from 821 to 1,148 meters
(m) (2,694 to 3,766 feet (ft)) in Arizona, and from 755 to 861 m (2,477
to 2,825 ft) in Utah. We could not correlate the Gierisch mallow's
occurrences to a specific range of slopes; therefore, topography is not
considered to be an essential physical feature for this species
(Service unpublished data, 2012).
The Gierisch mallow occurs in sparsely vegetated, warm desert
communities. All occupied habitat throughout its range occurs within
the landcover described as Mojave mid-elevation mixed desert scrub
(NatureServe 2011, p. 2). This classification represents the extensive
desert scrub in the transition zone above the Larrea tridentata
(creosote)-Ambrosia dumosa (white bursage) desert scrub and below the
lower montane woodlands from 700 to 1800 m (2,296 to 5,905 ft) that
occur in the eastern and central Mojave Desert. The vegetation within
this ecological system is quite variable. A list of common plants
associated with the Gierisch mallow habitat is included in Table 2.
[[Page 49170]]
Table 2--Vegetation Associated With Gierisch Mallow Habitat
[NatureServe 2011, p. 2]
------------------------------------------------------------------------
Other common
Codominant and diagnostic Woody plant nonwoody species
species species associates associates
------------------------------------------------------------------------
Coleogyne ramosissima Acacia greggii Achnatherum
(blackbrush). (catclaw acacia). hymenoides
(Indian
ricegrass).
Eriogonum fasciculatum Ephedra nevadensis Achnatherum
(buckwheat). (Nevada jointfir). speciosum (desert
needlegrass).
Ephedra nevadensis (Nevada Ephedra torreyana Muhlenbergia
jointfir). (desert Mormon porteri (bush
tea). muhly).
Grayia spinosa (spiny hopsage).. Encelia farinosa Eriogonum spp.
(brittlebush). (various annual
buckwheats).
Purshia Pleuraphis jamesii
stansburiana (James' galleta).
(Stansbury
cliffrose).
Gutierrezia Poa secunda
sarothrae (broom (Sandberg
snakeweed). bluegrass).
------------------------------------------------------------------------
Depending on the moisture regime, the Gierisch mallow also can be
associated with native annuals that are often ephemeral (seen only in
the spring) and, like many Mohave Desert plant species, seasonally
abundant based on climatic conditions. Gierisch mallow also appears to
be associated with biologic soil crusts (Frates 2012, pers. comm.).
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).
Therefore, based on the information above, we identify gypsum soils
with biological soil crusts found in the Harrisburg Member of the
Kaibab Formation from 755 to 1,148 m (2,477 to 3,766 ft) and with the
appropriate native vegetation communities to be an essential physical
or biological feature for this species.
Sites for Reproduction, Germination, Seed Dispersal or Pollination
The Gierisch mallow is a native species of sparsely vegetated, warm
desert communities. Although we do not know how the species is
pollinated, other species of the genus Sphaeralcea (globemallows) are
pollinated by Diadasia diminuta (globemallow bee), which specializes in
pollinating plants of this genus. Globemallow bees are considered
important pollinators for globemallows (Tepedino 2010, p. 2). These
solitary bees, as well as other Diadasia species, are known to occur
within the range of the Gierisch mallow (Sipes and Tepedino 2005, pp.
490-491; Sipes and Wolf 2001, pp. 146-147), so it is reasonable to
assume that they are potential pollinators of the Gierisch mallow and
other associated vegetation in the surrounding community. The
globemallow bee, along with other solitary bees, nest in the ground,
and nests are commonly found in partially compacted soil along the
margins of dirt roads in the western United States (Tepedino 2010, p.
1). Prior to the proliferation of roads, it is possible that the bees
nested in soils compacted by herd animals or trails (Esque 2012, pers.
comm.). It is important to protect those nesting sites and associated
natural habitat for the globemallow bee and other potential
pollinators.
Natural habitat for the globemallow bee and other potential
pollinators includes those appropriate vegetation communities described
above in Table 2. The lack of favorable natural habitat can negatively
influence pollination productivity (Kremen et al. 2004, pp. 1116-1117).
Sites for the Gierisch mallow's reproduction, germination, and seed
dispersal, and pollination providers are found within the communities
described above. Because the Gierisch mallow is potentially pollinated
by globemallow bees and other insects, the presence of pollinator
populations is essential to the conservation of the species.
Preservation of the mix of species and interspecific interactions they
encompass greatly improves the chances for survival of rare species in
their original location and habitat (Tepedino et al. 1996, p. 245).
Redundancy of pollinator species is important because a pollinator
species may be abundant one year and less so the next year. Maintaining
a full suite of pollinators allows for the likelihood that another
pollinator species will stand in for a less abundant one, and is
essential in assuring adequate pollination.
Bees have a limited foraging range strongly correlated to body size
(Greenleaf, 2005, p. 17; Steffan-Dewenter and Tscharntke 1999, pp. 434-
435). Fragmentation of habitat can result in isolating plants from
pollinator nesting sites. When the distance between plants and the
natural habitats of pollinators increases, plant reproduction (as
measured by mean seed set) can decline by as much as 50 percent in some
plant species (Steffan-Dewenter and Tscharntke 1999, pp. 435-436).
Optimal pollination occurs when there is abundance of individual
pollinators and a species-rich bee community (Greenleaf 2005, p. 47).
Greenleaf (2005, p. 15) defines the typical homing distance of a
bee taxon as the distance at which 50 percent of individual bees of
that taxon have the ability to return to their home (nest, etc.).
Solitary bees of various species have been documented to have foraging
distances ranging from 150 m (492 ft) to 1,200 m (3,937 ft) (Gathmann
and Tscharntke 2002, p. 760; Greenleaf et al. 2007, p. 593).
Therefore, based on the information above, we identify pollinators
and associated appropriate native plant communities within 1,200 m
(3,937 ft) of occupied sites to be an essential physical or biological
feature for this species.
Habitats Protected From Disturbance or Representative of the
Historical, Geographic, and Ecological Distributions of the Species
The species' known range has not contracted or expanded since the
species was described in 2002. All sites contribute to ecological
distribution and function for this species by providing representation
across the species' limited current range. It is important to minimize
surface-disturbing activities throughout the limited range of the
Gierisch mallow. Surface-disturbing activities, such mining and
recreation activities (off-highway vehicle (OHV) use and impacts
related to target shooting), remove the unique soil composition and
associated vegetation
[[Page 49171]]
communities that the Gierisch mallow needs.
Additionally, it is important to have areas in all the critical
habitat units free of nonnative, invasive species, such as red brome
(bromus rubens) and cheatgrass (bromus tectorum). Both cheatgrass and
red brome tend to not grow well in gypsum outcrops in normal (dry)
rainfall years (Roaque 2102b, p. 1); however, they can be abundant in
Gierisch mallow habitat during wet years, providing continuous fuels in
otherwise open spaces (Roth 2012, entire). 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 an
increase in invasive species that results in more fires, more fires
create more disturbances, and more disturbances lead to increased
densities of invasive species. The risk of fire is expected to increase
from 46 to 100 percent when the cover of cheatgrass increases from 12
to 45 percent or more (Link et al. 2006, p. 116). The invasion of red
brome into the Mojave Desert of western North America poses similar
threats to fire regimes, native plants, and other federally protected
species (Brooks et al. 2004, pp. 677-678). Brooks (1999, p. 16) also
found that high interspace biomass of red brome and cheatgrass resulted
in greater fire danger in the Mojave Desert. Brooks (1999, p. 18) goes
on to state that the ecological effects of cheatgrass- and red brome-
driven fires are significant because of their intensity and consumption
of perennial shrubs.
Imprecise forecasts of the impacts of climate change make the
identification of areas that may become essential impractical at this
time. Therefore, we have not identified additional areas outside those
currently occupied where the species may move to, or be transplanted
to, as a result of the impacts due to climate change.
Based on the information above, we identify areas free of
disturbance and areas with low densities or absence of nonnative,
invasive species to be an essential physical or biological feature for
this species.
Primary Constituent Elements for the Gierisch Mallow
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of the Gierisch mallow in areas occupied at the time of
listing, focusing on the features' primary constituent elements. We
consider primary constituent elements to be the elements of physical or
biological features that provide for a species' life-history processes
and are essential to the conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, we determine that the primary constituent
elements specific to the Gierisch mallow are:
(1) Appropriate geological layers or gypsiferous soils, in the
Harrisburg Member of the Kaibab Formation, that support individual
Gierisch mallow plants or their habitat, within the elevation range of
775 to 1,148 m (2,477 to 3,766 ft). Appropriate soils are defined as:
Badland,
Fluvaquents and Torrifluvents,
Riverwash,
Cave-Harrisburg-Grapevine complex,
Grapevine-Hobcan complex,
Nikey-Ruesh complex,
Gypill-Hobog complex,
Hobog-Tidwell complex,
Hobog-Grapevine complex,
Grapevine-Shelly complex, and
Hindu-Rock outcrop-Gypill complex.
(2) Appropriate Mojave desert scrub plant community and associated
native species for the soil types at the sites listed in PCE 1.
(3) Biological soil crusts within the soil types described in PCE
1.
(4) The presence of insect visitors or pollinators, such as the
globemallow bee and other solitary bees. To ensure the proper suite of
pollinators are present, this includes habitat that provides nesting
substrate for pollinators in the areas described in PCE 2.
(5) Areas free of disturbance and areas with low densities or
absence of nonnative, invasive plants, such as red brome and
cheatgrass.
With this designation of critical habitat, we intend to identify
the physical or biological features essential to the conservation of
the species, through the identification of primary constituent elements
sufficient to support the life-history processes of the species. All
units designated as critical habitat are currently occupied by the
Gierisch mallow and contain the primary constituent elements sufficient
to support the life-history needs of the species.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographic area occupied by the species at the time of
listing contain features that are essential to the conservation of the
species and which may require special management considerations or
protection. The features essential to the conservation of this species
may require special management considerations or protection to reduce
the direct and indirect effects associated with the following threats:
Habitat loss and degradation from mining operations; livestock grazing;
recreation activities; and invasive plant species. Please refer to the
final listing rule published elsewhere in today's Federal Register for
a complete description of these threats.
Special management to protect the features essential to the
conservation of the species from the effects of gypsum mining include
creating managed plant preserves and open spaces, limiting disturbances
to and within suitable habitats, and evaluating the need for (and
conducting restoration or revegetation of) native plants in open spaces
or plant preserves containing similar gypsum soils. Management
activities that could ameliorate these threats include (but are not
limited to) seed collection from the Gierisch mallow throughout its
range, including those plants within the footprint of each mine. These
seeds could be used to begin propagation studies to determine the long-
term viability of plants growing in reclaimed soils. Additionally,
these seeds could be used to begin propagating plants to be planted in
other gypsum deposits and to augment existing populations. In addition
to collecting seeds directly from plants, the seed bank could be
collected from the top 1 inch of soil before the surface disturbance
occurs as long as soils are properly handled during seed bank
collection (Scoles-Sciulla and DeFalco 2009, entire). Special
management may be necessary to protect features essential to the
conservation of the Gierisch mallow from livestock grazing, including
fencing populations; avoiding activities, such as water trough
placement, that might concentrate livestock near or in occupied
habitat; and removing livestock from critical habitat during the
species' growing and reproductive seasons, especially during periods of
flowering and fruiting. Special management that may be necessary to
protect the features essential to the conservation of the
[[Page 49172]]
Gierisch mallow from recreational activities includes directing
recreational use away from and outside of critical habitat, fencing
small populations, removing or limiting access routes, ensuring land
use practices do not disturb the hydrologic regime, and avoiding
activities that might concentrate water flows or sediments into
critical habitat. Additionally, threats related to both control of
nonnative, invasive species and fire suppression and fire-related
activities resulting from the spread of nonnative, invasive species
include:
Crushing and trampling of plants from fire suppression and
treatment activities;
Damage to seedbank as a result of fire severity;
Soil erosion; and
An increase of invasive plant species that may compete
with native plant species as a result of wildfires removing non-fire-
adapted native plant species or as a result of fire suppression
equipment introducing invasive plant species.
Criteria Used To Identify Critical Habitat
Geographic Range Occupied at the Time of Listing
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. We review
available information pertaining to the habitat requirements of the
species. In accordance with the Act and its implementing regulation at
50 CFR 424.12(e), we consider whether designating additional areas--
outside those currently occupied as well as those occupied at the time
of listing--are necessary to ensure the conservation of the species. We
are designating critical habitat in areas within the geographic area
occupied by the species as described in the final rule to list the
Gierisch mallow (see Species Information section of the final rule to
list the species published elsewhere in today's Federal Register) and
that contain one or more of the identified primary constituent
elements. The geographic area occupied by Gierisch mallow is considered
its current range, which includes some areas or patches that are devoid
of plants. We are not designating any areas outside the geographic area
occupied by the species, because we have determined that unoccupied
areas are not essential for the conservation of the species.
Our rationale for not including areas outside of the geographic
range of Gierisch mallow is twofold. First, the areas designated as
occupied contain the physical or biological features essential for the
conservation of the species. Second, within the overall geographic area
occupied by the species, there are some areas or patches devoid of
plants, as one would expect. Therefore, it follows that within the
critical habitat units we are designating, there are areas without the
plant growing in them. Thus, even though all units are occupied when
considering the appropriate scale for critical habitat designation,
there is still room for more plants to grow. This should provide room
for expansion of the existing populations. Should recovery planning for
this species include actions to augment or establish additional
populations, the critical habitat units will provide for enough habitat
to allow for those activities. Therefore, we conclude that unoccupied
areas outside of the geographic range of the Gierisch mallow are not
essential for the conservation of the species.
There is no information on the historical range of this species;
however, it is possible that the gypsum hills supported populations of
the Gierisch mallow before active mining (and removal of the gypsum)
began, but there is no information that the species occurred outside of
its current range. Currently, there are 18 known populations restricted
to less than approximately 186 ha (460 ac) in Arizona and Utah,
combined. The main populations in Arizona are located south of the
Black Knolls, approximately 19.3 km (12 mi) southwest of St. George,
Utah, with the southernmost population of this group being on the edge
of Black Rock Gulch near Mokaac Mountain. There is another population
approximately 4.8 km (3 mi) north of the Black Knolls, on ASLD lands
near the Arizona/Utah State line. The Utah population is located on BLM
lands within 3.2 km (2 mi) of the Arizona/Utah State line, near the
Arizona population on ASLD land. Gypsum outcrops associated with the
Harrisburg Member are scattered throughout BLM lands in northern
Arizona and southern Utah. Extensive surveys were conducted in these
areas because numerous other rare plant species are associated with
these landforms. Gierisch mallow plants were not located in any other
areas beyond what is currently known and described above (Atwood 2008,
p. 1). In identifying critical habitat units for Gierisch mallow, we
proceeded through a multi-step process.
Mapping
We obtained records of Gierisch mallow distribution from BLM's
Arizona Strip Field Office, BLM's St. George Field Office, and both
published and unpublished documentation from our files. This
information included BLM hand-mapped polygons that outlined Gierisch
mallow habitats in Arizona and Utah.
For all areas, survey data from 2001 to 2011 were available and
evaluated to identify the extent of occupied habitat (provided by BLM).
Although occupied sites may gradually change, recent survey results
confirm that plant distribution is similar to observed distributions
over the last 10 years.
Our approach to delineating critical habitat units was applied in
the following manner:
(1) We overlaid Gierisch mallow locations into a GIS database. This
provided us with the ability to examine slope, aspect, elevation,
vegetation community, and topographic features, such as drainages, in
relation to the locations of Gierisch mallow on the landscape. The
locations of Gierisch mallow, and their relationship to landscape
features, verified our previous knowledge of the species and slightly
expanded the previously recorded elevation ranges for Gierisch mallow.
We examined Gierisch mallow locations in an attempt to identify any
correlation with aspect, slope, and occurrence location for this
species; however, we found no such correlation.
To better understand the relationship of the Gierisch mallow
locations to specific soils, we also examined soil series layers,
aerial photography, and hardcopy geologic maps. For Gierisch mallow, we
analyzed soil survey layers. For Gierisch mallow locations in Utah, we
found that 26.02 percent of all individuals rangewide (Arizona and
Utah) are associated with Badland, and 0.03 percent of all individuals
are associated with Fluvaquents and Torrifluvents soil complexes. In
Arizona, we found that occupied sites are associated with the following
soil types (percentages are rangewide):
Nikey-Ruesh complex (3.14 percent),
Gypill-Hobog complex (65.94 percent),
Hobog-Tidwell complex (3.53 percent),
Hobog-Grapevine complex (0.85 percent),
Grapevine-Shelly complex (0.24 percent), and
Hindu-Rock outcrop-Gypill complex (0.25 percent) (Service
unpublished data).
This provided us with several polygons of occupied habitat spread
across the above soil series.
[[Page 49173]]
(2) To further refine our critical habitat, we then included 1,200
m (3,937 ft) of pollinator habitat around the polygons of occupied
habitat to ensure that all potential pollinators would have a
sufficient habitat to establish nesting sites and to provide
pollinating services for Gierisch mallow, as described in Primary
Constituent Elements for the Gierisch Mallow above. Additionally, the
1,200 m (3,937 ft) of pollinator habitat included three other
gypsiferous soil types that also contain the necessary habitat for the
Gierisch mallow. These soil types are the
Riverwash,
Cave-Harrisburg-Grapevine complex, and
Grapevine-Hobcan complex.
(3) We then drew critical habitat boundaries that captured the
locations, soils, and pollinator habitat elucidated under (1) and (2)
above. Critical habitat designations were then mapped using Albers
Equal Area (Albers) North American Datum 83 (NAD 83) coordinates.
In summary, critical habitat includes all gypsum soils described
above as well as the appropriate Mojave desert scrub plant community
and associated native species associated and biological soil crusts
within the appropriate gypsum soils. Critical habitat also includes all
pollinators and their habitat within 1,200 m (3,937 ft) of gypsum soils
occupied by Gierisch mallow. When determining critical habitat
boundaries, we made every effort to avoid including developed areas
such as lands covered by buildings, pavement, and other structures
because such lands lack physical or biological features for Gierisch
mallow. The scale of the maps we prepared under the parameters for
publication within the Code of Federal Regulations may not reflect the
exclusion of such developed lands. Any such lands inadvertently left
inside critical habitat boundaries shown on the maps of this final rule
have been excluded by text in the final rule and are not being
designated as critical habitat. Therefore, a Federal action involving
these lands would not trigger section 7 consultation with respect to
critical habitat and the requirement of no adverse modification unless
the specific action would affect the physical or biological features in
the adjacent critical habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates or plot points or both
on which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R2-ES-2013-0018, on our Internet
site (http://www.fws.gov/southwest/es/arizona/), and at the field
office responsible for the designation (see FOR FURTHER INFORMATION
CONTACT above).
We are designating as critical habitat lands that we have
determined to be areas occupied at the time of listing and that contain
sufficient elements of physical or biological features to support life-
history processes essential for the conservation of the species. No
lands outside of the geographic area occupied at the time of listing
are designated as critical habitat. The area included in both units is
large enough and contains sufficient habitat to ensure the conservation
of Gierisch mallow.
Two units are designated based on sufficient elements of physical
or biological features being present to support Gierisch mallow life
processes. Both units contain all physical and biological features and
support multiple life processes.
Final Critical Habitat Designation
We are designating two units as critical habitat for Gierisch
mallow. Both units are occupied and contain features that are essential
to the conservation of Gierisch mallow. We mapped the units with a
degree of precision commensurate with the available information and the
size of the unit. The critical habitat areas described below constitute
our best assessment at this time of areas that meet the definition of
critical habitat. The two areas we are designating as critical habitat
are the Starvation Point Unit and the Black Knolls Unit. The
approximate area of each critical habitat unit is shown in Table 3.
Table 3--Designated Critical Habitat Units for Gierisch Mallow
[Area estimates reflect all land within critical habitat unit boundaries]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Critical habitat unit BLM AZ Federal BLM UT Federal AZ State lands UT State lands Totals
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1. Starvation Point........... 220 ha (544 ac)............... 802 ha (1,982 ac)............. 249 ha (615 ac).............. 68 ha (167 ac)............... 1,339 ha (3,309 ac)
Unit 2. Black Knolls............... 3,586 ha (8,862 ac)........... 0............................. 263 ha (651 ac).............. 0............................ 3,850 ha (9,513 ac)
------------------------------------------------------------------------------------------------------------------------------------------------------------
Totals......................... 3,806 ha (9,406 ac)........... 802 ha (1,982 ac)............. 512 ac (1,266 ac)............ 68 ha (167 ac)............... 5,189 ha (12,822 ac )
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Below, we present brief descriptions of all units and reasons why
they meet the definition of critical habitat for Gierisch mallow.
Unit 1: Starvation Point
This unit consists of 1,339 ha (3,308.7492 ac) in Arizona and Utah,
and occurs on land managed by Arizona BLM (220.31 ha; 544.40 ac) and
Utah BLM (802.11 ha; 1,982.07 ac), SITLA in Utah (67.73 ha; 167.38 ac),
and ASLD in Arizona (248.83 ha; 614.87 ac). This unit was occupied at
the time of listing and contains the features essential to the
conservation of the species. Unit 1 contains two Gierisch mallow
populations, including the second largest population. Unit 1 is located
west of I-15 as this highway crosses the State line of Arizona and
Utah, and is bounded by the Virgin River to the west and I-15 to the
south and east.
The features essential to the conservation of the species may
require special management considerations or protection to control
invasive plant species, to control habitat degradation due to the
recreation and mining activities that disrupt the soil composition, and
to maintain the identified associated vegetation and pollinators
essential to the conservation of the species. The portion of habitat
that occurs on ASLD occurs within the footprint of the Georgia-Pacific
Mine, which could resume gypsum mining operations in the near future.
Grazing, which can modify the primary
[[Page 49174]]
constituent elements and may require special management, typically
occurs outside of the growing season for Gierisch mallow in the one
pasture on Utah BLM and SITLA lands within this unit; however, recent
wildfires in adjacent pastures in this allotment have resulted in
livestock grazing occurring into the spring growing season for Gierisch
mallow. These recently burned pastures have since been rehabilitated,
and livestock grazing is anticipated to return to its normal grazing
rotation of November 1 to February 28 in the future (Douglas 2012, p.
1).
Unit 2: Black Knolls
This unit consists of approximately 3,850 ha (9,513 ac) in Arizona,
and occurs on land managed by both Arizona BLM (3,586.28 ha; 8,861.90
ac) and ASLD (263.62 ha; 651.41 acres). This unit is occupied at the
time of listing and contains the features essential to the conservation
of the species. Unit 2 contains the remaining 16 Gierisch mallow
populations, including the largest population. Unit 2 is located south
of I-15 as this highway crosses the State line of Arizona and Utah, and
is bounded by Black Rock Gulch to the west and Mokaac Mountain to the
south and east.
The features essential to the conservation of the species may
require special management considerations or protection to control
invasive plant species, to control habitat degradation due to mining
activities that disrupt the soil composition, and to maintain the
identified associated vegetation and pollinators essential to the
conservation of the species. The largest population of Gierisch mallow
occurs in the area of the proposed expansion of the Black Rock Gypsum
Mine. As described in the final listing rule published elsewhere in
today's Federal Register, grazing on BLM lands in Arizona typically
occurs during the growing season for Gierisch mallow on all three BLM
allotments within this critical habitat designation and is expected to
modify the primary constituent elements, although some of the pastures
are in a rest/rotation system in which a pasture may see an entire year
of rest before being grazed again.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action that is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would continue to serve its intended conservation role
for the species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under section 404 of the Clean Water Act
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat, and actions
on State, tribal, local, or private lands that are not federally funded
or authorized, do not require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, or
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for Gierisch mallow. As
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the
species.
[[Page 49175]]
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Gierisch mallow. These activities include, but are
not limited to, actions that would significantly alter soil composition
that Gierisch mallow requires, including, but not limited to, mining
operations, livestock grazing, and special use permits for recreation
activities.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographic areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.'' There are no
Department of Defense lands with a completed INRMP within the critical
habitat designation.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and make revisions to critical habitat on the basis of the
best available scientific data after taking into consideration the
economic impact, national security impact, and any other relevant
impact of specifying any particular area as critical habitat. The
Secretary may exclude an area from critical habitat if he determines
that the benefits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat, unless he determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will result in the extinction of the
species. In making that determination, the statute on its face, as well
as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, or any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise his discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Exclusions Based on Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we prepared a draft economic analysis of the
proposed critical habitat designation and related factors (IEc 2013,
all). The draft analysis, dated February 22, 2013, was made available
for public review from March 28, 2013, through April 29, 2013 (78 FR
18943). Following the close of the comment period, a final analysis of
the potential economic effects of the designation was developed, taking
into consideration the public comments and any new information.
The intent of the final economic analysis (FEA) is to quantify the
economic impacts of all potential conservation efforts for Gierisch
mallow; some of these costs will likely be incurred regardless of
whether we designate critical habitat (baseline). The economic impact
of the final critical habitat designation is analyzed by comparing
scenarios both ``with critical habitat'' and ``without critical
habitat.'' The ``without critical habitat'' scenario represents the
baseline for the analysis, considering protections already in place for
the species (e.g., under the Federal listing and other Federal, State,
and local regulations). The baseline, therefore, represents the costs
incurred regardless of whether critical habitat is designated. The
``with critical habitat'' scenario describes the incremental impacts
associated specifically with the designation of critical habitat for
the species. The incremental conservation efforts and associated
impacts are those not expected to occur absent the designation of
critical habitat for the species. In other words, the incremental costs
are those attributable solely to the designation of critical habitat
above and beyond the baseline costs; these are the costs we consider in
the final designation of critical habitat. The analysis looks
retrospectively at baseline impacts incurred since the species was
listed, and forecasts both baseline and incremental impacts likely to
occur with the designation of critical habitat.
While we think that the incremental effects approach is appropriate
and meets the intent of the Act, we have taken a conservative approach
in this instance to ensure that we are fully evaluating the probable
effects of this designation. Given that we do not have a new definition
of ``destruction or adverse modification,'' there may be certain
circumstances where we may want to evaluate impacts beyond those that
are solely incremental. Such is the case with Gierisch mallow, where we
have extensive case law and determinations of effects that suggest we
gather information concerning not only incremental effects, but also
coextensive effects.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decision-makers can use this information to assess whether
the effects of the designation might unduly burden a particular group
or economic sector. Finally, the FEA looks retrospectively at costs
that have been incurred since 2012 (year of the species' proposed
listing) (77 FR 49894), and considers those costs that may occur in the
20 years following the designation of critical habitat, which was
determined to be the appropriate period for analysis because limited
planning information was available for most activities to forecast
activity levels for projects beyond a 20-year timeframe. The FEA
quantifies economic impacts of Gierisch mallow conservation efforts
associated with the following categories of activity: (1) Gypsum
mining; (2) livestock grazing; (3) BLM Land Use Plan amendment; and (4)
transportation projects.
Economic impacts associated with the designation of critical
habitat are primarily administrative costs associated with
consultations under section 7 of the Act. These economic impacts are
expected to include both formal and informal consultations under
section 7 of the Act as well as technical assistance for those projects
that do not
[[Page 49176]]
have a Federal nexus but are anticipated to impact Gierisch mallow
critical habitat. Incremental impacts associated with consultations for
the effects of the above described activities are expected to amount to
$51,000 above the baseline cost over the next 20 years. Of that
$51,000, approximately $4,700 will be associated with gypsum mining,
$27,000 will be attributed to livestock grazing; $12,000 will be
associated with BLM land management activities, and $7,000 will be
associated with transportation projects along Interstate 15.
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Our economic analysis
also did not indicate that the benefits of exclusion of critical
habitat outweigh the benefits of inclusion. Consequently, the Secretary
is not exerting her discretion to exclude any areas from this
designation of critical habitat for the Gierisch mallow based on
economic impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Arizona Ecological Services Office (see ADDRESSES) or by
downloading from the Internet at http://www.regulations.gov under
Docket No. FWS-R2-ES-2013-0018 or at http://www.fws.gov/southwest/es/arizona/.
Exclusions Based on National Security Impacts
Under section 4(b)(2) of the Act, we consider the impact on
national security of specifying any particular area as critical
habitat. In preparing this rule, we have determined that the lands
within the designation of critical habitat for the Gierisch mallow are
not owned or managed by the Department of Defense, and, therefore, we
anticipate no impact on national security. Consequently, the Secretary
does not propose to exert her discretion to exclude any areas from the
final designation based on impacts on national security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors, including whether the
landowners have developed any habitat conservation plans (HCPs) or
other management plans for the area, or whether there are conservation
partnerships that would be encouraged by designation of, or exclusion
from, critical habitat. In addition, we look at any tribal issues, and
consider the government-to-government relationship of the United States
with tribal entities. We also consider any social impacts that might
occur because of the designation.
In preparing this final rule, we have determined that there are
currently no HCPs or other management plans for Gierisch mallow, and
this final designation does not include any tribal lands or trust
resources. We anticipate no impact on tribal lands, partnerships, or
HCPs from this critical habitat designation. Accordingly, the Secretary
is not exercising her discretion to exclude any areas from this final
designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866, while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency must publish
a notice of rulemaking for any proposed or final rule, it must prepare
and make available for public comment a regulatory flexibility analysis
that describes the effects of the rule on small entities (small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities. The SBREFA amended
the RFA to require Federal agencies to provide a certification
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities. In this final rule, we are certifying that the critical
habitat designation for Gierisch mallow will not have a significant
economic impact on a substantial number of small entities. The
following discussion explains our rationale.
According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we consider the types
of activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify.
Likewise, if the per-entity economic impact is likely to be
significant, but the number of affected entities is not substantial,
the Service may also certify.
In our final economic analysis of the critical habitat designation,
we evaluated the potential economic effects on small business entities
resulting from conservation actions related to the listing of the
Gierisch mallow and the designation of critical habitat. The analysis
is based on the estimated impacts associated with the rulemaking
[[Page 49177]]
as described in Chapters 4 through 5 and Appendix A of the analysis and
evaluates the potential for economic impacts related to: (1) Gypsum
mining; (2) livestock grazing; (3) BLM Land Use Plan amendment; and (4)
transportation projects. One of the mining companies (Western Mining)
is larger than the threshold for small businesses and is operating on
BLM-managed lands. Because Western Mining is operating on BLM-managed
lands, there is a Federal nexus, which requires BLM to consult with us
for impacts to critical habitat associated with these mining
operations. The other mining company (Georgia-Pacific) is also larger
than the threshold for small businesses, but it is operating on ASLD-
managed lands and, therefore, does not have a Federal nexus. Because
there is no Federal nexus associated with ASLD-managed lands, Georgia-
Pacific is not required to consult with our office for impacts to
critical habitat associated with their mining operations. Livestock
grazing operations occurring on BLM-managed lands will also require
consultation with our office by the BLM due to the Federal nexus of BLM
permitting these activities on their lands. Administrative costs of
consultations on road and bridge construction and maintenance are
expected to be borne by us, the Federal Highway Administration, and the
Arizona Department of Transportation. Therefore, no incremental impacts
to small entities will be associated with these consultations. Many of
BLM's remaining land management activities, as well as those described
above, associated with their Land Use Plan will require consultation
with our office and will not involve third parties. Because these
consultations do not involve third parties, no impacts to small
entities are expected related to these consultations and conservation
efforts.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
(EOs) 12866 and 13563 direct Federal agencies to assess costs and
benefits of available regulatory alternatives in quantitative (to the
extent feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts if sufficient data are available, whether or not this
analysis is believed by the Service to be strictly required by the RFA.
In other words, while the effects analysis required under the RFA is
limited to entities directly regulated by the rulemaking, the effects
analysis under the Act, consistent with the EOs' regulatory analysis
requirements, can take into consideration impacts to both directly and
indirectly impacted entities, where practicable and reasonable.
In conclusion, we believe that, based on our interpretation of
directly regulated entities under the RFA and relevant case law, this
designation of critical habitat will only directly regulate Federal
agencies, which are not by definition small business entities. As such,
we certify that this designation of critical habitat will not have a
significant economic impact on a substantial number of small business
entities. Therefore, a final regulatory flexibility analysis is not
required. However, though not necessarily required by the RFA, in our
final economic analysis for this rule we considered and evaluated the
potential effects to third parties that may be involved with
consultations with Federal action agencies related to this action.
Designation of critical habitat only affects activities authorized,
funded, or carried out by Federal agencies. Some kinds of activities
are unlikely to have any Federal involvement and so will not be
affected by critical habitat designation. In areas where the species is
present, Federal agencies are required to consult with us under section
7 of the Act on activities they authorize, fund, or carry out that may
affect the Gierisch mallow. Federal agencies also must consult with us
if their activities may affect critical habitat. Designation of
critical habitat, therefore, could result in an additional economic
impact on small entities due to the requirement to reinitiate
consultation for ongoing Federal activities (see Application of the
``Adverse Modification'' Standard section).
In summary, we considered whether this designation will result in a
significant economic effect on a substantial number of small entities.
Based on the above reasoning and currently available information, we
conclude that this rule will not result in a significant economic
impact on a substantial number of small entities. Therefore, we are
certifying that the designation of critical habitat for Gierisch mallow
will not have a significant economic impact on a substantial number of
small entities, and a final regulatory flexibility analysis is not
required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration. The economic analysis determined that
Gierisch mallow critical habitat will have no effect on any aspect of
energy supply or distribution. Therefore, the economic analysis finds
that none of these criteria is relevant to this analysis. Thus, based
on information in the economic analysis, energy-related impacts
associated with Gierisch mallow conservation activities within critical
habitat are not expected. As such, the designation of critical habitat
is not expected to significantly affect energy supplies, distribution,
or use. Therefore, this action is not a significant energy action, and
no Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty
[[Page 49178]]
upon State, local, or tribal governments'' with two exceptions. It
excludes ``a condition of Federal assistance.'' It also excludes ``a
duty arising from participation in a voluntary Federal program,''
unless the regulation ``relates to a then-existing Federal program
under which $500,000,000 or more is provided annually to State, local,
and tribal governments under entitlement authority,'' if the provision
would ``increase the stringency of conditions of assistance'' or
``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because the lands being designated as critical
habitat are owned by the State of Arizona, State of Utah, and the BLM.
None of these government entities fit the definition of ``small
governmental jurisdiction.'' Therefore, a Small Government Agency Plan
is not required.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for Gierisch mallow in a takings implications
assessment. As discussed above, the designation of critical habitat
affects only Federal actions. Although private parties that receive
Federal funding, assistance, or require approval or authorization from
a Federal agency for an action may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency. We believe that the takings implications
associated with this critical habitat designation will be
insignificant, in part, because both units designated are currently
considered occupied by the Gierisch mallow and the ability of the
species to persist is very closely tied to its habitat. As a result of
the biology and life-history characteristics of this species, we found
only minor incremental differences between the outcomes of section 7
consultation with and without designation of critical habitat.
Our economic analysis found that the impacts of any potential
project modifications, and, therefore, impacts to private land rights,
resulting from the designation of critical habitat will be very small.
This is because the baseline situation without designating critical
habitat already provides protections to the species and its habitats
through being listed as endangered. With or without critical habitat,
Federal actions that may affect the Gierisch mallow will be required to
undergo section 7 consultation. Because the species is so closely
associated with its habitat, we cannot foresee a different outcome of
the section 7 consultation under either the jeopardy or adverse
modification standards. For private actions not involving a Federal
nexus, no change in potential impacts to private land rights will
result from the designation of critical habitat because critical
habitat protections only apply to Federal actions.
Overall, our economic analysis and environmental assessment found
only very minor incremental costs associated with the critical habitat
designation, and we do not, therefore, anticipate that the critical
habitat designation for the Gierisch mallow will result in significant
incremental economic impacts above and beyond the current regulatory
burden. Additionally, our economic analysis considered whether
designating critical habitat will result in a significant economic
effect on a substantial number of small entities. The economic analysis
found that designation will not affect a substantial number of small
entities. Based on information contained in the final economic analysis
and final environmental assessment and described within this document,
it is not likely that economic impacts to a property owner would be of
a sufficient magnitude to support a takings action. Therefore, we
anticipate that this critical habitat designation will result in
insignificant takings implications on these lands. The takings
implications assessment concludes that this designation of critical
habitat for Gierisch mallow does not pose significant takings
implications for lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this rule
does not have significant Federalism effects. A federalism summary
impact statement is not required. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of, this critical habitat designation
with appropriate State resource agencies in Arizona and Utah. We did
not receive any comments from State resource agencies in Arizona and
Utah. The designation of critical habitat in areas currently occupied
by the Gierisch mallow imposes no additional restrictions to those put
in place by the listing of this species and, therefore, has little
incremental impact on State and local governments and their activities.
The designation may have some benefit to these governments because the
areas that contain the physical or biological features essential to the
conservation of the species are more clearly defined, and the elements
of the features of the habitat necessary to the conservation of the
species are specifically identified. This information does not alter
where and what federally sponsored activities may occur. However, it
may assist local governments in long-range planning (rather than having
them wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required.
[[Page 49179]]
While non-Federal entities that receive Federal funding, assistance, or
permits, or that otherwise require approval or authorization from a
Federal agency for an action, may be indirectly impacted by the
designation of critical habitat, the legally binding duty to avoid
destruction or adverse modification of critical habitat rests squarely
on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with the provisions of the Act. To assist the
public in understanding the habitat needs of the species, the rule
identifies the elements of physical or biological features essential to
the conservation of the Gierisch mallow. The designated areas of
critical habitat are presented on maps, and the rule provides several
options for the interested public to obtain more detailed location
information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be
prepared in connection with designating critical habitat under the Act.
We published a notice outlining our reasons for this determination in
the Federal Register on October 25, 1983 (48 FR 49244).
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to NEPA in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the
range of the species includes States within the Tenth Circuit, such as
that of Gierisch mallow, under the Tenth Circuit ruling in Catron
County Board of Commissioners v. U.S. Fish and Wildlife Service, 75
F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis for critical
habitat designation and notify the public of the availability of the
draft environmental assessment for this proposal when it is finished.
We performed the NEPA analysis, and the draft environmental
assessment was made available for public comment on March 28, 2013 (78
FR 18943). The final environmental assessment has been completed and is
available for review with the publication of this final rule. You may
obtain a copy of the final environmental assessment online at http://www.regulations.gov under Docket No. FWS-R2-ES-2013-0018, by mail from
the Arizona Ecological Services Office (see ADDRESSES), or by visiting
our Web site at http://www.fws.gov/southwest/es/arizona/.
The environmental analysis evaluated three alternatives: No
critical habitat designation, critical habitat designation with no
exclusions, and critical habitat designation with the exclusion of the
gypsum mines. The assessment considered potential impacts to the human
environment from implementation of each alternative. The assessment
differentiates between section7 consultations that will occur due to
the listing of the species regardless of critical habitat designation,
and consultations that result from the presence of critical habitat. As
a result of the environmental assessment, it was determined that there
would be no benefit to excluding the lands proposed for gypsum mining
from critical habitat. Pursuant to the Council on Environmental Quality
regulations for implementing NEPA (40 CFR 1500-1518), the environmental
analysis determined that, in the context of short- and long-term
impacts, the effects of the critical habitat designation at this scale
would be small. Additionally, the environmental analysis determined
that the intensity of impacts of designation of critical habitat for
Gierisch mallow would be low. Furthermore, the environmental assessment
concluded that the designation of critical habitat for the Gierisch
mallow does not constitute a major Federal action significantly
affecting the quality of the human environment under the meaning of
section 102(2)(C) of NEPA.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination with Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes. We determined that there are no tribal
lands that are occupied by the Gierisch mallow that contain the
physical or biological features essential for conservation of the
species, and no tribal lands unoccupied by the Gierisch mallow that are
essential for the conservation of the species. Therefore, we are not
designating critical habitat for the Gierisch mallow on tribal lands.
References Cited
A complete list of references cited in this rulemaking is available
on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-
2013-0018 and upon request from the Arizona Ecological Services Office
(see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this document are the staff of the Arizona
Ecological Services Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we are amending part 17, subchapter B of chapter I,
title 50 of the Code of Federal Regulations, as set forth below:
[[Page 49180]]
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. 17.96(a) by adding an entry for ``Sphaeralcea gierischii
(Gierisch mallow),'' in alphabetical order under the family Malvaceae,
to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Malvaceae: Sphaeralcea gierischii (Gierisch mallow)
(1) Critical habitat units are depicted for Washington County,
Utah, and Mohave County, Arizona, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of
Gierisch mallow consist of the following components:
(i) Appropriate geological layers or gypsiferous soils, in the
Harrisburg Member of the Kaibab Formation, that support individual
Gierisch mallow plants or their habitat, within the elevation range of
775 to 1,148 meters (2,477 to 3,766 feet). Appropriate soils are
defined as:
(A) Badland,
(B) Fluvaquents and Torrifluvents,
(C) Riverwash,
(D) Cave-Harrisburg-Grapevine complex,
(E) Grapevine-Hobcan complex,
(F) Nikey-Ruesh complex,
(G) Gypill-Hobog complex,
(H) Hobog-Tidwell complex,
(I) Hobog-Grapevine complex,
(J) Grapevine-Shelly complex, and
(K) Hindu-Rock outcrop-Gypill complex.
(ii) Appropriate Mojave desert scrub plant community and associated
native species for the soil types at the sites listed in paragraph
(2)(i) of this entry.
(iii) Biological soil crusts within the soil types listed in
paragraph (2)(i) of this entry.
(iv) The presence of insect visitors or pollinators, such as the
globemallow bee and other solitary bees. To ensure the proper suite of
pollinators are present, this includes habitat that provides nesting
substrate for pollinators in the areas described in paragraph (2)(ii)
of this entry.
(v) Areas free of disturbance and areas with low densities or
absence of nonnative, invasive plants, such as red brome and
cheatgrass.
(3) Critical habitat includes all gypsum soils described in
paragraph (2) of this entry, as well as the appropriate Mojave desert
scrub plant community and associated native species and biological soil
crusts within the appropriate gypsum soils. Critical habitat also
includes all pollinators and their habitat within 1,200 meters (3,937
feet) of gypsum soils occupied by Gierisch mallow. Critical habitat
does not include manmade structures (such as buildings, aqueducts,
runways, roads, and other paved areas) and the land on which they are
located existing within the legal boundaries on September 12, 2013.
(4) Critical habitat map units. Data layers defining map units were
created using Albers Equal Area (Albers) North American Datum 83 (NAD
83) coordinates. The maps in this entry, as modified by any
accompanying regulatory text, establish the boundaries of the critical
habitat designation. The coordinates or plot points or both on which
each map is based are available to the public at the Service's internet
site (http://www.fws.gov/southwest/es/Arizona/), at the Federal
eRulemaking Portal (http://www.regulations.gov, at Docket No. FWS-R2-
ES-2013-0018, and at the field office responsible for this designation.
You may obtain field office location information by contacting one of
the Service regional offices, the addresses of which are listed at 50
CFR 2.2.
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[[Page 49181]]
(5) Index map follows:
[GRAPHIC] [TIFF OMITTED] TR13AU13.000
[[Page 49182]]
(6) Unit 1: Starvation Point Unit, Mohave County, Arizona, and
Washington County, Utah. Map of Units 1 and 2 follows:
[GRAPHIC] [TIFF OMITTED] TR13AU13.001
[[Page 49183]]
(7) Unit 2: Black Knolls Unit, Mohave County, Arizona. Map of Unit
2 is provided at paragraph (6) of this entry.
* * * * *
Dated: August 1, 2013.
Rachel Jacobson,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2013-19385 Filed 8-12-13; 8:45 am]
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