[Federal Register: July 15, 2002 (Volume 67, Number 135)]
[Proposed Rules]               
[Page 46441-46450]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI50

Endangered and Threatened Wildlife and Plants; Listing the Plant 
Lepidium papilliferum (slickspot peppergrass) as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule and notice of public hearing.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list Lepidium papilliferum (slickspot peppergrass) as endangered 
pursuant to the Endangered Species Act of 1973, as amended (Act). 
Lepidium papilliferum is endemic to sagebrush-steppe habitat in 
southern Idaho. This species is threatened by a variety of immediate 
factors including: habitat destruction and fragmentation from 
agricultural and urban development; activities associated with, and 
grazing by, domestic livestock; competition from nonnative vegetation; 
alterations of the natural fire cycle; and fire rehabilitation 
    We solicit additional data and information that may assist us in 
making a final decision on this proposed action. We may revise this 
proposal to incorporate or address new information received during the 
comment period. This proposal, if made final, would extend the Federal 
protection and recovery provisions of the Act to this species.

DATES: We will accept comments from all interested parties until the 
close of business September 13, 2002. A public hearing has been 
scheduled for Thursday, August 29, 2002, from 1 p.m. until 3 p.m. and 
from 6 p.m. until 8 p.m in Boise, ID (see ADDRESSES).

ADDRESSES: Comment submission: If you wish to comment, you may submit 
your comments and materials by one of several methods.
    1. You may submit written comments and information to the 
Supervisor, U.S. Fish and Wildlife Service, Snake River Basin Office, 
1387 S. Vinnell Way, Room 368, Boise, ID 83709.
    2. You may hand-deliver written comments to our Snake River Basin 
Office, at the address given above.
    3. You may send comments by electronic mail (e-mail): 
fw1srbocomment@fws.gov. See the Public Comments Solicited section below 
for file format and other information on electronic filing.
    Public Hearing: The public hearing will be conducted at the 
AmeriTel Inn/Boise Spectrum, 7499 W. Overland Road, Boise, Idaho 83709.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Snake River Basin Office. There are no limits to the 
length of written comments presented at the hearing or mailed to the 

FOR FURTHER INFORMATION CONTACT: Robert Ruesink, Supervisor, Snake 
River Basin Office (see ADDRESSES) (telephone 208/378-5243; facsimile 
208/378-5262). Information regarding this proposal is available in 
alternative formats upon request.



    Lepidium papilliferum is a herbaceous annual or biennial plant that 
occurs in sagebrush-steppe habitats at approximately 670 meters (m) 
(2,200 feet (ft)) to 1,645 m (5,400 ft) elevation in southwestern 
Idaho. This species is found along the Snake River Plain and Owyhee 
Plateau in Ada, Canyon, Gem, Elmore, Payette, and Owyhee Counties.
    Of 88 known occurrences of Lepidium papilliferum, 70 are currently 
extant (exist), 13 are considered extirpated (extinct), and five are 
historic (i.e., plants have not been relocated; location information is 
based on collections made between 1911 and 1974) (Moseley 1994; Mancuso 
2000; Shelly Cooke, Idaho Conservation Data Center (ICDC), pers. comm., 
2002, ICDC 2002). Occurrences of L. papilliferum can include one to 
several occupied slickspots within an area determined to be suitable 
habitat. The total amount of habitat containing interspersed slickspots 
that have extant occurrences of L. papilliferum is about 5,000 hectares 
(ha) (12,356 acres (ac)). Only 6 of the 70 extant occurrences are 
considered to be high-quality habitat and contain large numbers of the 
plants (ICDC 2002). The number of L. papilliferum individuals at each 
extant occurrence ranges from 1 to 3,000 (Mancuso 2000; ICDC 2002).
    This species is threatened by a variety of activities including 
urbanization, gravel mining, irrigated agriculture, habitat degradation 
due to cattle and sheep grazing, fire and fire rehabilitation 
activities, and continued invasion of habitat by non-native plant 
species (Moseley 1994; Mancuso and Moseley 1998). As a result of 
habitat loss and degradation, the documented extirpation rate of 
Lepidium papilliferum populations is the highest known of any Idaho 
rare plant species (Moseley 1994). The historical (undocumented) loss 
of L. papilliferum may have been even higher during the early 1900s 
(Mancuso et al. 1998) due to the widespread loss and degradation of 
sagebrush-steppe habitat in southwestern Idaho as a result of 
urbanization, livestock grazing, and irrigated agriculture (Moseley 
    Lepidium papilliferum was originally described as L. montanum var. 
papilliferum in 1900 by Louis Henderson. It was included as a distinct 
species in a recent review of taxa in the mustard family (Brassicaceae) 
(Rollins 1993). Rollins (1993) based his justification on physical 
features that L. papilliferum possesses and L. montanum does not, such 
as: (1) Trichomes (hairlike structures) occurring on the filaments of 
stamens (part of flower that produces pollen), which is unique among 
all North American Lepidium species; (2) all the leaves on L. 
papilliferum are pinnately divided, whereas L. montanum has

[[Page 46442]]

some leaves that are not divided; and (3) the shape of the silique 
(seed capsule) is different from that of L. montanum, and it has no 
wings, or even vestiges of wings, at its apex (end of the capsule), 
which also differs from that of L. montanum (Moseley 1994).
    Lepidium papilliferum is an annual or biennial plant that reaches 
10 to 30 centimeters (cm) (4 to 12 inches (in)) in height. Leaves and 
stems are pubescent (covered with fine, soft hairs), and the divided 
leaves have linear segments (Moseley 1994). Numerous small, white, 4-
petalled flowers terminate the branches. This species produces small, 
orbicular (spherical) fruits (siliques), which are approximately 3 
millimeters (0.1 in) long. Lepidium papilliferum is mainly pollinated 
by bees (Apidae, Colletidae, and Halictidae families), flies (Syrphidae 
family), and some beetle species (Dermestidae and Cerambycidae families 
(Robertson 2001). The primary seed dispersal mechanism is probably 
gravity, although wind and water may have a minor role (Moseley 1994). 
Lepidium papilliferum seeds may be viable in the soil for up to 12 
years (Dana Quinney, in litt., 2002).
    Lepidium papilliferum occurs in semi-arid sagebrush-steppe habitats 
on the Snake River Plain, Owyhee Plateau, and adjacent foothills in 
southern Idaho. Associated native species include Artemisia tridentata 
ssp. wyomingensis (Wyoming big sagebrush), A. tridentata ssp. 
tridentata (basin big sagebrush), Agropyron spicatum (bluebunch 
wheatgrass), Stipa thurberiana (Thurber's needlegrass), Poa secunda 
(Sandberg's bluegrass), and Sitanion hystrix (bottlebrush 
squirreltail). Non-native species frequently associated with L. 
papilliferum include Bromus tectorum (cheatgrass), Sisymbrium 
altissimum (tumble mustard), Ranunculus testiculatus (bur buttercup), 
Lepidium perfoliatum (clasping pepperweed), and Agropyron cristatum 
(crested wheatgrass) (Moseley 1994; Mancuso and Moseley 1998).
    Lepidium papilliferum is restricted to small areas, similar to 
vernal pools, known as slickspots (also called mini-playas or natric 
sites). Slickspots range from less than 1 square meter (m\2\) (10 
square feet (ft\2\)) to about 10 m\2\ (110 ft\2\) within communities 
dominated by other plants (Mancuso et al. 1998). Lepidium papilliferum 
is limited to slickspots covering a relatively small area. These 
sparsely vegetated microsites are very distinct from the surrounding 
shrubland vegetation, and are characterized by relatively high 
concentrations of clay and salt (Fisher et al. 1996). The microsites 
also have reduced levels of organic matter and nutrients due to the 
lower biomass production compared to surrounding habitat areas. The 
restricted distribution of L. papilliferum is likely a product of the 
scarcity of these extremely localized, specific soil conditions, and 
the loss and degradation of these habitat areas throughout southwestern 
    Like many short-lived plants growing in arid environments, the 
above-ground number of Lepidium papilliferum individuals at any one 
site can fluctuate widely from one year to the next depending on 
seasonal precipitation patterns (Mancuso and Moseley 1998; Mancuso 
2001). Flowering individuals represent only a portion of the 
population, with the seed bank contributing the remainder, and 
apparently the majority, in many years (Mancuso and Moseley 1998). For 
annual plants, maintaining a seed bank (a reserve of dormant seeds, 
generally found in the soil) is important for year-to-year and long-
term survival (Baskin and Baskin 1978). A seed bank includes all of the 
seeds in a population and generally covers a larger area than the 
extent of observable plants seen in a given year (Given 1994). The 
number and location of standing plants (the observable plants) in a 
population varies annually due to a number of factors, including the 
amount and timing of rainfall, temperature, soil conditions, and the 
extent and nature of the seed bank. The extent of seed bank reserves is 
variable from population to population, and large fluctuations in the 
number of standing plants at a given site may occur from one year to 
the next. Depending on the vigor of the individual plant and the 
effectiveness of pollination, dozens, if not hundreds of seeds could be 
    For example, in 1998, approximately 16,000 Lepidium papilliferum 
plants were counted along 45 transects situated within 40 occurrences 
monitored by Mancuso (2000). In 1999, only 3,060 L. papilliferum plants 
were counted along these same transects and two additional ones. 
Mancuso (2001) continued his monitoring of these transects in 2000, and 
tallied about 7,100 L. papilliferum plants. Much of the slickspot 
habitat for L. papilliferum occurs within a complex of the larger 
sagebrush-steppe habitat described above.
    The displacement of native plants by nonnative species is a major 
problem in sagebrush-steppe habitats of the Intermountain region 
(Rosentreter 1994; Ann DeBolt, Bureau of Land Management (BLM), pers. 
comm., 1999). Widespread grazing by livestock in the late 1800s and 
early 1900s severely degraded sagebrush-steppe habitat, enabling 
introduced annual species (especially cheatgrass) to become dominant 
over large portions of the Snake River Plain (Yensen 1980; Moseley 
1994). The invasion of cheatgrass has shortened the fire frequency of 
the sagebrush-steppe from between 60 to 110 years, to less than 5 years 
as it provides a continuous, highly flammable fuel through which a fire 
can easily spread (Whisenant 1990; Moseley 1994; Mancuso and Moseley 
1998). The result has been the permanent conversion of vast areas of 
the former sagebrush-steppe ecosystem into nonnative annual grasslands. 
An estimated 2 to 2.43 million ha (5 to 6 million ac) of sagebrush-
steppe in the western Snake River basin has been converted to nonnative 
annual vegetation dominated by cheatgrass and Taeniatherum caput-
medusae (medusahead) (Noss et al. 1995), primarily due to continued 
overgrazing and fire. The continued cumulative effects of overgrazing 
and fire suppression permit the invasion of nonnative plant species 
into slickspot habitats (Rosentreter 1994). Lepidium papilliferum 
populations typically decline or are extirpated following the 
replacement of sagebrush-steppe habitat by nonnative annuals.
    Another problem has been the use of nonnative perennial species, 
such as Agropyron cristatum and A. intermedium (intermediate 
wheatgrass), to restore or rehabilitate shrub-steppe habitat after a 
fire event. Although some Lepidium papilliferum may temporarily persist 
in spite of these restoration seedings, most occurrences support small 
numbers of plants (fewer than five per slickspot) and long-term 
persistence data are unavailable (Mancuso and Moseley 1998). Habitat 
degradation, fragmentation, and loss of sagebrush-steppe vegetation 
have occurred throughout the range of L. papilliferum. Popovich (2001) 
found in his surveys for L. papilliferum in the Inside Desert area on 
BLM land in 2000 that, generally, slickspots dominated by nonnative 
vegetation had fewer L. papilliferum plants than slickspot sites with 
greater native vegetation retention.
    In 1997, an effort was initiated by the ICDC to develop an 
ecological integrity index for assessing and monitoring Lepidium 
papilliferum habitat in southwestern Idaho (Mancuso and Moseley 1998). 
This monitoring includes the following components: (1) an Integrity 
Condition Rating to assess the overall habitat condition, which 
includes those attributes associated with the slickspot microsite and 
the shrub-steppe habitat. Integrity Condition Ratings are ranked as 
``good'', ``fair'', or

[[Page 46443]]

``poor''; and (2) an Occurrence Viability Rank which provides a scale 
to assess the prospects that an occurrence will persist over time, and 
includes factors affecting the viability and defensibility of the 
occurrence (Mancuso 2001). The four Occurrence Viability Rankings are: 
(1) A-ranked occurrences are those sites found in the highest quality 
communities; these occurrences generally have not been burned and are 
not dominated by nonnative annuals; (2) B-ranked occurrences typically 
consist of good to high quality habitat; (3) C-ranked occurrences are 
generally in fair to low-quality habitat; some of these occurrences are 
highly disturbed and are not expected to remain viable; and (4) D-
ranked occurrences are in degraded habitats; these occurrences are not 
expected to remain viable (Moseley 1994).
    Currently, only 6 (9 percent) of the 70 extant Lepidium 
papilliferum occurrences are A-ranked; 9 (13 percent) are B-ranked; 2 
(3 percent) are B/C-ranked; 20 (29 percent) are C-ranked; 1 (1 percent) 
is C/D-ranked; and 17 (24 percent) are D-ranked (ICDC 2002). Fifteen 
occurrences are not ranked (21 percent) due to a lack of information on 
habitat characteristics (S. Cooke, pers. comm., 2002).

Previous Federal Action

    Federal Government actions for the plant began in 1990 when this 
species (as Lepidium montanum var. papilliferum) was designated as a 
category 2 candidate in the February 21, 1990 (55 FR 6184) Notice of 
Review. Category 2 candidates were those for which information in our 
possession indicated that proposing to list as endangered or threatened 
was possibly appropriate, but sufficient data to support proposed rules 
were not currently available. This taxon was retained as a category 2 
candidate in the September 30, 1993 (58 FR 51144) Notice of Review. 
Upon publication of the February 28, 1996 Notice of Review (61 FR 
7596), we ceased using candidate category designations. Lepidium 
papilliferum was not included as a candidate species in this notice. We 
reinstated the species as a candidate species, with a listing priority 
number of 2, in the October 25, 1999, Notice of Review (64 FR 57534). 
The species was again listed as a candidate in the October 30, 2001, 
Notice of Review (66 FR 54808).
    On April 9, 2001, we received a petition dated April 4, 2001, from 
the Committee for Idaho's High Desert, the Western Watersheds Project, 
the Wilderness Society, and the Idaho Conservation League (Petitioners) 
asking us to list Lepidium papilliferum as threatened or endangered, 
and on an emergency basis. The petition submitted information stating 
that this species is threatened by competition with nonnative and woody 
vegetation, improper livestock grazing practices, improper herbicide 
application, inbreeding depression, and fire suppression. We responded 
to the Petitioners with a letter dated April 27, 2001, stating that the 
species was already identified as a candidate, and we do not publish 
petition findings on candidate species since we have already determined 
that their listing is warranted (Service 2001). We also stated that our 
initial review of their petition did not indicate an emergency 
situation existed.
    On November 6, 2001, the Petitioners filed a complaint for our 
failure to emergency list Lepidium papilliferum as threatened or 
endangered, and our failure to proceed with a proposed rule to list L. 
papilliferum as endangered or threatened on a non-emergency basis 
(Committee for Idaho's High Desert and Western Watersheds Project v. 
Anne Badgley, et al. (Case No. CV 01-1641-AS)). On April 2, 2002, based 
on a settlement agreement between us and the Petitioners, the court 
signed an order requiring us to submit for publication in the Federal 
Register a proposal to list the species by July 15, 2002. This proposed 
rule complies with the settlement agreement.

Summary of Factors Affecting the Species

    Section 4 of the Act and regulations (50 CFR part 424) promulgated 
to implement the listing provisions of the Act set forth the procedures 
for adding species to the Federal lists. A species may be determined to 
be an endangered or threatened species due to one or more of the five 
factors described in section 4(a)(1). These factors, and their 
application to Lepidium papilliferum, are as follows:

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

    Most sagebrush-steppe habitat that has not been converted to 
cropland in southwestern Idaho has been degraded by wildfire, livestock 
grazing and trampling, the invasion of nonnative plant species, and 
off-road vehicle use; these factors continue to threaten all remaining 
habitat for Lepidium papilliferum (Moseley 1994; Mancuso and Moseley 
1998; ICDC 1999; Mancuso 2000). The conversion of the original 
sagebrush-steppe to annual grasslands has reduced suitable remaining 
habitat for, and destroyed some, L. papilliferum, in addition to 
fragmenting and isolating extant occurrences (Moseley 1994). Subsequent 
increased frequency of fire, and the associated invasion of weedy 
annual plants, are serious range-wide threats to the long-term 
integrity of L. papilliferum habitat and population viability (M. 
Mancuso, in litt., 1998).
    To illustrate the pattern of ongoing habitat degradation for this 
species, in 1994, 12 Lepidium papilliferum occurrences were given a 
``B'' rank (Moseley 1994). By 1998, eight of these occurrences (67 
percent) had declined in quality to either a ``C'' or ``D'' rank due to 
the effects of habitat degradation and fragmentation (M. Mancuso, in 
litt., 1998). Lower quality (i.e., C- and D-ranked) occurrences are not 
likely to persist in the future. Examples of decline in habitat quality 
include two L. papilliferum occurrences near Kuna Butte on BLM lands. 
Lepidium papilliferum habitat at one site south of Kuna (Initial Point) 
that received an A-rank in 1994 had declined to a D-rank by 1998. 
Recent wildfires in the area destroyed the original sagebrush 
vegetation which has now been largely replaced by nonnative species. 
Mechanical fire rehabilitation efforts also adversely affected the 
slickspots; less than 0.04 ha (0.1 ac) of occupied habitat now exists 
at this site (M. Mancuso, in litt., 1998; ICDC 1999). Another L. 
papilliferum occurrence south of Kuna (Kuna Butte) declined from an A-
rank in 1994 to a C-ranking in 1998 due to habitat degradation from 
fire, post-fire rehabilitation efforts, and the invasion of nonnative 
species which now dominate the vegetation; occupied L. papilliferum 
habitat at this occurrence is also restricted to less than 0.04 ha (0.1 
ac) (ICDC 1999). Both occurrences are now considered to have poor 
habitat quality.
    Livestock effects on unique habitats such as slickspots are 
magnified in areas where nonnative plant invasions and altered fire 
regimes occur. Arid soils with inorganic crusting are more susceptible 
to impacts when soils are wet (Belnap et al. 1999). Slickspots are 
characterized by a near-surface distribution of soluble sodium salts, 
thin vesicular (small cavity) surface crusts, and shallow well-
developed argillic (relating to clay mineral) horizons (Fisher et al. 
1996). Slickspots often contain some surface water in the winter, 
spring, and after thundershowers (Fisher et al. 1996; James Klott, BLM, 
pers. comm., 2000). Water that is present for more than a day often 
will attract livestock to slickspots (J. Klott, pers. comm., 2000).

[[Page 46444]]

    Livestock trampling of slickspots is one of the main disturbances 
to slickspot microsites (Mancuso 2001), especially in the spring 
(approximately April through June) when the soils are moist. Trampling 
by livestock can physically damage the vegetation that exists there and 
compact the soil, which greatly accelerates desertification processes 
(becoming more like a desert) through increased soil loss and water 
runoff (Moseley 1994; D. Quinney and Jay Weaver, Idaho Army National 
Guard (IDARNG), pers. comm., 1998; J. Klott, pers. comm., 2000; 
Popovich 2001). This can also lead to the loss of slickspot integrity, 
particularly from winter through spring when standing water remains for 
a longer period of time after a rainfall (Belnap et al. 1999; BLM et 
al. in litt., 1999; Air Force 2000). A majority (78 percent) of 
Lepidium papilliferum occurrences had evidence of livestock trampling 
and grazing in a study conducted by Mancuso (2000) that monitored 40 
extant sites.
    Livestock trampling of slickspots can also lead to the invasion or 
increase of nonnative annual species such as Bromus tectorum, 
Sisymbrium altissimum, Ranunculus testiculatus, and Lepidium 
perfoliatum into shrub-steppe habitats through transport of the seeds 
of these species by animals in their feces or hides (Ellison 1960; Pyke 
1999). The majority of the 40 extant Lepidium papilliferum occurrences 
being monitored (92 percent of the 40) had invasive annual grasses that 
either dominated or co-dominated the herbaceous vegetation (Mancuso 
    Slickspots are small areas of habitat that are relatively free of 
organic debris and nutrients. The presence of livestock in an area with 
slickspots generally results in increases in organic debris, such as 
livestock feces, especially when the slickspots have standing water. As 
organic debris is increased, the incidence of nonnative species 
invasion also increases (J. Klott, pers. comm., 2000), leading to the 
loss of suitable habitat for Lepidium papilliferum. Heavily grazed and 
trampled locations may favor species such as bur buttercup (Pyke 1999). 
Once the integrity of the slickspot has been disrupted, invasion by 
nonnative species will be enhanced (J. Klott, pers. comm., 2000). 
Invader species (such as those indicated above) can also encroach onto 
a site from adjacent sites in later stages of deterioration (in fair to 
poor range conditions) (Holechek et al. 1998).
    As a result of numerous fires and reseeding efforts associated with 
fire rehabilitation with non-native perennial grasses, the BLM has 
granted Temporary Non-Renewable (TNR) livestock grazing permits to 
permittees in the Jarbidge Resource Area. A TNR is a permit that 
increases a livestock permittee's allotted Animal Unit Months (AUMs) in 
a permitted grazing area, based on the estimated amount of forage 
available for livestock. An increase in livestock grazing pressure 
increases the likelihood of trampling of Lepidium papilliferum plants, 
soil compaction, and the introduction of nonnative vegetation in 
slickspots. Until 1995, TNR permits were granted on a yearly basis 
without environmental review or surveys for sensitive plant species. In 
1996, the BLM prepared an environmental assessment analyzing the 
potential impacts of authorizing TNR permits, and provided a framework 
for managing the TNR program (Martha Hahn, BLM, in litt., 2000). 
Beginning in 1999, a TNR permit was denied if L. papilliferum was 
observed in the allotment for that year; if L. papilliferum was not 
observed, the TNR permit was granted (John Biar, BLM, pers. comm., 
2000; J. Klott, pers. comm., 2000). However, since 2000, while some BLM 
pastures may be closed to grazing use if L. papilliferum is present, 
this does not necessarily always occur (J. Klott, pers. comm., 2000), 
and the decision to allow grazing is based mainly on how close 
slickspots containing L. papilliferum are to water sources.
    The BLM has taken some steps to mitigate grazing impacts to 
Lepidium papilliferum on land it manages. It has moved a few water 
troughs that attracted livestock into an area that contained L. 
papilliferum, and also fenced an area containing the species to protect 
it from the livestock. Also, the BLM has changed the season of grazing 
use from spring to fall, although this does not generally protect the 
biennial form of L. papilliferum. Large areas that have not been 
surveyed are still grazed, and many areas at less than 1,524 m (5,000 
ft) in elevation are permitted to be grazed the entire year. Although 
surveys are conducted yearly, funds are insufficient for the BLM to 
cover all of the grazing allotments throughout the species' range (J. 
Klott, pers. comm., 2002).
    In 1998, the Air Force acquired BLM land to establish the Juniper 
Butte Enhanced Training Range (ETR), under the Juniper Butte Range 
Withdrawal Act (Pub. L. 105-261), which provided for the withdrawal and 
management of this area by the Air Force for military activities (Air 
Force 2000). Juniper Butte ETR is approximately 4,856 ha (12,000 ac) in 
size, and the landscape is a mosaic of shrub-steppe and nonnative plant 
communities. Numerous fires in this area resulted in a conversion from 
the native sagebrush-perennial grassland vegetation to nonnative 
perennial or annual grasslands (Air Force 2000). Slickspot habitat and 
Lepidium papilliferum are distributed throughout the entire Juniper 
Butte ETR area. A total of 597 slickspots or complexes of varying sizes 
were located in a 1998 Air Force survey on the Juniper Butte ETR, and 
totaled approximately 0.9 ha (2.2 ac) of potential L. papilliferum 
habitat. This figure did not include the 121 ha (300 ac) primary 
ordnance (bomb) impact zone. Slickspot habitat on the Juniper Butte ETR 
is currently considered low ranking (C-rank) (Mancuso 2002).
    Under BLM management, this land was permitted to be grazed by 
livestock for many years as part of the Juniper Draw allotment (Air 
Force 2000). At the present time, the Juniper Butte ETR area continues 
to be grazed by a BLM permittee (Angelia Martin, Air Force, pers. 
comm., 2002). The Air Force has recently completed its Integrated 
Natural Resource Management Plan (INRMP) for the Juniper Butte ETR, 
which was prepared to provide mitigation and monitoring for lands 
affected by military activities, and to provide management guidance for 
this area (Air Force 2000).
    Under the INRMP, the Air Force proposes to utilize grazing 
throughout the entire Juniper Butte ETR to reduce the amount of 
standing grass biomass for wildfire control (Air Force 2000). 
Currently, the permittee is required to graze his permitted 1,806 AUMs 
for 60 days (2 months) sometime between April 1 and June 30 (during a 
90-day window) each year. In the early spring, Air Force staff begin to 
check a number of slickspots, and if there is standing water in them, 
grazing may be delayed until after April 1 with the potential of having 
grazing delayed until May 1. However, at that time, whether the 
slickspots are wet or not, the cattle must be turned out to graze the 
60 days until the end of June. Outside of the primary ordnance impact 
area, the Juniper Butte ETR is divided into three pastures. During the 
spring, the Air Force (2000) proposes to suspend training in the 
primary ordnance impact area in order to clean up inert training 
ordnance dropped from jets during training exercises in this impact 
zone and one of the pastures. It is anticipated that a small amount of 
ordnance will be dropped outside the primary ordnance impact area, but 
we consider this impact on Lepidium papilliferum to be minor. Livestock 
will be allowed to graze during this time. Soil and vegetation 
disturbance due to this activity would be greatest at this time of 
year, and

[[Page 46445]]

would likely damage L. papilliferum and its habitat throughout the 
Juniper Butte ETR, especially at the INRMP proposed grazing intensity 
level, which is to graze 2,470 AUMs for 60 days (Air Force 2000). The 
Air Force is currently preparing a Vegetation Management Environmental 
Assessment (EA) that would address how the area is grazed by livestock 
and the necessary conservation measures needed for L. papilliferum. It 
is anticipated that the INRMP will be updated with information from the 
final EA.
    Wildfire is a threat to all known Lepidium papilliferum occurrences 
throughout its range. Frequent fires are likely to degrade remaining L. 
papilliferum habitat in the future. For example, 29 of the 40 monitored 
(73 percent) L. papilliferum occurrences have been completely burned, 
have a mosaic burn pattern, or have distinct burned and unburned 
segments (Mancuso 2000). Increased sedimentation after a fire may also 
allow weedy species to invade slickspots (DeBoldt 1999 cited in Air 
Force 2000).
    Post-fire range restoration efforts also threaten Lepidium 
papilliferum. Some occupied slickspots have been lost following drill-
seedings, but it is often not clear whether fire, seeding, or the 
combination of the two disturbances caused the disappearance of the 
species or the slickspot. Drill seeding is the process of seeding an 
area using a rangeland drill which plants and covers seed 
simultaneously in furrows. It is designed to give the seeds moisture 
and temperature advantages that will enhance their competitive fitness, 
and consequently, their success rate (Scholten and Bunting 2001). 
Slickspots may reform over time after being drilled (Moseley 1994; Noe 
1999 cited in Air Force 2000), but it is not known if L. papilliferum 
populations will remain viable for as long as the slickspot takes to 
reform (Air Force 2000). In their study examining the effects of drill 
seeding on L. papilliferum, Scholten and Bunting (2001) found that the 
density of L. papilliferum individuals was lower on drilled slickspots 
than on non-drilled sites.
    Fire rehabilitation is needed to reduce the invasion of nonnative 
vegetation to burned areas. Drill-seeding may have less severe impacts 
on slickspot habitat than disking the soil, but the success of fire 
rehabilitation efforts at maintaining slickspots and Lepidium 
papilliferum varies considerably. Drill-seeding tends to break the 
linkages between slickspots and can result in slickspots shrinking in 
size, particularly those that are relatively small (J. Klott, pers. 
comm., 2000). Seeding methods that cause minimal soil disturbance 
(e.g., ``no till'' drills) are available, but have not been regularly 
used in southwestern Idaho to date (R. Rosentreter, BLM, pers. comm., 
1999). In some cases, not seeding burned areas can result in the loss 
of L. papilliferum occurrences due to nonnative weed invasion. In 2001, 
the BLM modified its rangeland drills used in fire rehabilitation to 
reduce the seeding depths so the drills would be less damaging to L. 
papilliferum habitat.
    Seeding burned areas with Agropyron cristatum, a non-native forage 
species, or other non-native perennial grasses, has resulted in the 
destruction of at least one Lepidium papilliferum site (Moseley 1994). 
Agropyron cristatum is a strong competitor and its seedlings are better 
than native species at acquiring moisture at low temperatures (Lesica 
and DeLuca 1998). For example, on the Juniper Butte ETR, approximately 
80 percent or 3,708 ha (9,163 ac) of this area is dominated by 
nonnative perennial plant communities as a result of fire 
rehabilitation efforts (Air Force 1998).
    Other potential threats to this species resulting from fire 
prevention and rehabilitation measures include the use of Oust, a non-
specific herbicide that is toxic to plants in the mustard family. Oust 
is a sulfometuron methyl herbicide and is successful at killing annual 
plants while having little impact on established perennials (Scholten 
2000 cited in Scholten and Bunting 2001). It has been used over large 
areas of BLM lands that contain Lepidium papilliferum habitat. Also, 
the practice of ``green-stripping'' or converting native habitat to 
nonnative plant species that are not considered to be very flammable 
has occurred (Moseley 1994). Since wildfire prevention and control is a 
high priority for the BLM and other agencies in southwestern Idaho, 
potential threats to L. papilliferum habitat associated with these 
activities are expected to continue.
    The long-term viability of Lepidium papilliferum occurrences on 
private land is questionable due to the continuing expansion of 
residential developments in and around Boise (Moseley 1994). Twenty-
eight of the 88 known L. papilliferum occurrences (32 percent) occur 
either wholly or partially on private lands. Of these, 13 occurrences 
(46 percent) are known to have been extirpated within the past 50 years 
(Moseley 1994; ICDC 2002). Urbanization, agricultural conversion, and 
associated factors such as increased risk of damage or extirpation from 
fire, trampling, and off-road vehicle use, threaten all existing L. 
papilliferum occurrences on private land.
    Development of adjacent private land also threatens at least four 
Lepidium papilliferum occurrences on BLM land (Mancuso 2000). For 
example, the Soles Rest Creek L. papilliferum occurrence is on BLM land 
adjacent to private property that is under construction for a 
residential development (A. DeBoldt, pers. comm., 2002). An all-season 
road has replaced a two-track road and spur roads now lead off the 
improved road. Due to this increased access, and the resulting 
potential for an increase in off-road vehicle use that would trample 
plants, fire hazard, and introduction of nonnative species, this L. 
papilliferum occurrence declined from an A-rank to a B-rank.
    In this same general area, a recent trespass occurred in which a 
private landowner bladed a 2.4 kilometer (km) (1.5 mile (mi)) road 
through BLM land to reach his private inholding. This individual bladed 
the road through slickspot habitat and a Lepidium papilliferum 
population. The BLM is now in the process of developing an 
environmental assessment to rehabilitate the land damaged during this 
incident and route a road away from slickspot habitat and L. 
papilliferum plants to accommodate this landowner as well as others (A. 
DeBoldt, pers. comm., 2002).
    In another recent event, unauthorized blading of an existing 
roadway on BLM lands impacted at least six slickspots known to contain 
Lepidium papilliferum. The total number of slickspots impacted by the 
84 km (52 mi) of blading is unknown as the blading may have removed all 
physical evidence of small slickspots (BLM 2001).
    A recent assessment of the ecological status of Lepidium 
papilliferum indicates that the six remaining high-quality (A-ranked) 
L. papilliferum occurrences are threatened by fire, off-road vehicle 
use, habitat degradation and trampling resulting from livestock, 
powerline/pipeline maintenance activities, and illegal dumping (M. 
Mancuso, in litt., 1998; Mancuso 2000). These six occurrences are 
located on mixed land ownerships consisting of BLM, State, and private 
    Military training activities and the development of the 4,856 ha 
(12,000 ac) Juniper Butte ETR in southwestern Idaho by the Air Force is 
also a threat to the species, and it is expected that direct impacts 
due to construction and training activities will result in the loss of 
Lepidium papilliferum within the 121 ha (300 ac) primary ordnance 
impact zone (Air Force 1998, 2000). The Juniper Butte ETR contains 
occupied and potentially suitable habitat for L.

[[Page 46446]]

papilliferum (A. DeBolt, in litt., 1998; Air Force 1998; 1999; ICDC 
1999); surveys conducted in June 1998 indicate that at least 1,000 
plants were present (Air Force 1999). The Air Force constructed 
facilities within the 121 ha (300 ac) primary ordnance impact zone 
during 2000 and 2001, and to avoid impacts to some slickspots, the Air 
Force shifted the locations of several industrial complex buildings 
just prior to construction. Although fire protection has been made a 
priority, it is inevitable that fire will occur due to proposed 
training activities throughout the Juniper Butte ETR. The overall 
habitat quality in the Juniper Butte ETR ranges from moderate to low 
since portions of the area burned several years ago (A. DeBolt, pers. 
comm., 1999) and have been reseeded to nonnative perennial grasses.
    An additional potential threat to Lepidium papilliferum on the 
Juniper Butte ETR within the primary ordnance impact area is the impact 
of dropping bombs on slickspots. Each bomb weighs approximately 11 
kilograms (25 pounds) (Air Force 2000), and even though they are inert 
and will not explode, dropping them from planes onto slickspots could 
compact the soil and crush plants. Because the slickspots are 
relatively small, it would be difficult to avoid them on the bombing 
range. However, this threat is considered minimal as the Air Force 
intends to use only 121 ha (300 ac) or 2.5 percent of the entire 
Juniper Butte ETR as the actual bombing impact area (Air Force 2001), 
and because this area contains only 3 percent of the total occupied L. 
papilliferum habitat.
    Lepidium papilliferum occurs on BLM lands called the Orchard 
Training Area, where the IDARNG has been conducting its military 
training exercises since 1953 under a Memorandum of Understanding 
between the two agencies (Quinney 2000). Over the past 12 years, IDARNG 
has implemented actions to meet the conservation needs of L. 
papilliferum, while still providing for military training activities. 
These actions include intensive fire suppression efforts, and 
restricting ground operated military training to where the plants and 
its habitat are not found.
    Gravel or cinder mining threatens at least two occurrences of 
Lepidium papilliferum on State and Federal lands (M. Mancuso, in litt., 
1998; A. DeBolt, pers. comm., 1999). These occurrences, located at 
Tenmile Creek and Fraser Reservoir, currently support high-quality (A-
ranked) habitat for this species (M. Mancuso, in litt., 1998). Ongoing 
mining activity and off-road vehicle use are present at the Fraser 
Reservoir site, which is on both BLM and State land. The Tenmile Creek 
site has been affected by recent, apparently illegal mining activity 
(A. DeBolt, pers. comm., 1999); this site is on BLM and private land. 
Gravel deposits located near Boise are considered to be especially 
valuable for mining since the gravel does not have to be shipped long 
distances to market (A. DeBoldt, pers. comm., 2002).

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

    The plant is not a source for human food, nor is it currently of 
commercial horticulture interest. Therefore, overutilization is not 
considered to be a threat to this species at the present time.

C. Disease or Predation

    The effects of overgrazing by livestock (generally defined as 
greater than 45 percent use of the available forage) in shrub-steppe 
habitats has been well documented (Yensen 1980; Whisenant 1990; Noss et 
al. 1995; Holechek et al. 1998; Belnap et al. 1999; Holechek et al. 
1999). Although grazing of Lepidium papilliferum by cattle appears low, 
and infrequent by other herbivores (Popovich 2001), spring-grazing 
sheep have been observed to uproot L. papilliferum plants. Since L. 
papilliferum is apparently unpalatable, sheep rarely consume the plants 
but simply pull them from the ground while foraging, killing the plants 
(D. Quinney and J. Weaver, pers. comm., 1998). Recent studies from 1994 
to 1999 reported that as much as 50 percent or more of the L. 
papilliferum plants at various monitoring sites on the Snake River 
Plain were damaged or destroyed by cattle and sheep grazing and 
trampling (Moseley 1994; J. Weaver, in litt., 1998; Mancuso 2000). For 
additional discussion on livestock grazing threats to this species, see 
Factors A and E.
    Herbivory by beetles has been observed on Lepidium papilliferum 
plants (M. Mancuso, in litt., 1998). Although some plants were nearly 
defoliated and may have been killed by beetle herbivory, it is not 
considered to be a major threat at this time. However, the effects of 
threats such as insect herbivory on L. papilliferum may become more 
detrimental as population sizes are reduced.

D. The Inadequacy of Existing Regulatory Mechanisms

    Lepidium papilliferum is considered a sensitive species by the BLM 
(J. Klott, pers. comm., 2002; ICDC 2002). The BLM has regulations that 
address the need to protect sensitive, candidate, and Federally listed 
species, and monitoring L. papilliferum on Federal lands has been 
initiated. Monitoring helps to identify threats and management actions 
that may be necessary to control habitat degradation, but the effects 
of activities such as livestock use of the habitat have not been 
evaluated for most L. papilliferum occurrences managed by the BLM. 
Numerous occurrences on Federal lands are threatened by nonnative 
weeds, herbicide spraying, mining, off-road vehicle use, and habitat 
degradation through increased fire frequency (see Factors A and E for 
additional information).
    Land exchanges involving the transfer of BLM land supporting 
Lepidium papilliferum into private ownership are a potential threat to 
this species. For example, a land exchange is currently proposed 
whereby the BLM would sell 12 ha (30 ac) of a 16 ha (40 ac) parcel to a 
private developer in the foothills of Boise, ID, as part of a larger 
land exchange. BLM would retain the 4 ha (10 ac) that contains a 
population of L. papilliferum. The 12 ha (30 ac) would be sold with a 
conservation easement and the developer would be required to fence the 
perimeter of the 4 ha (10 ac) retained in BLM ownership. With the 4 ha 
(10 ac) site surrounded by residential development, L. papilliferum 
habitat becomes fragmented and the population isolated from other L. 
papilliferum populations (A. DeBoldt, pers. comm., 2002). Future land 
exchanges are a continuing threat since BLM lands occupied by L. 
papilliferum could potentially support activities such as farming and 
mining, and may be sold for development purposes.
    A conservation agreement with the City of Boise was completed in 
1996 for the Hulls Gulch Reserve in the foothills north of Boise, which 
includes minimal habitat for Lepidium papilliferum (Service, in litt., 
1996). The L. papilliferum habitat within the Hulls Gulch Reserve, 
restricted to less than 2 m\2\ (21.5 ft\2\), is very low quality (D-
rank), vulnerable to disturbances from an adjacent trail, and a housing 
development (Mancuso 2000), and represents only one occurrence of L. 
    Lepidium papilliferum is considered to be rare and imperiled at the 
global and State scale (G2/S2 rating) by the Idaho Natural Heritage 
Program (Idaho Native Plant Society 1999; Air Force 2000). However, 
Idaho has no endangered species legislation that protects threatened or 
endangered species.

[[Page 46447]]

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Because the majority of populations of Lepidium papilliferum are 
extremely small (fewer than 5 plants per slickspot), and existing 
habitat is fragmented by agricultural conversion, fire, grazing, roads, 
and urbanization, local extirpation is a threat to this species. 
Habitat fragmentation has also likely resulted in reduced gene flow 
between populations (M. Mancuso, in litt. 1998), thus inhibiting 
dispersal and recolonization of potentially suitable habitat areas. The 
small size of many populations presents a threat to their survival due 
to environmental and genetic factors (Moseley 1994). In addition, less 
than 2,246 ha (5,550 ac) of high-quality (with A-ranked occurrences) 
potential habitat, with slickspots scattered throughout, exists for 
this species (M. Mancuso, in litt., 1998; ICDC 2002), which may not be 
adequate to ensure the long-term persistence of L. papilliferum. In 
1999, new threats, including off-road vehicle use, cinder and gravel 
mining claims, and residential development, were observed at 7 (14 
percent) of the 40 occurrences monitored, indicating a continuation of 
the threats associated with this species (Mancuso 2000).
    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
faced by the species in determining the status of Lepidium 
papilliferum. The small amount of occupied habitat, combined with 
ongoing threats make this species vulnerable to extinction. Most of the 
remaining sites that support L. papilliferum are small and fragmented, 
and existing occurrences are vulnerable to impacts from factors 
including grazing, trampling, herbicide use, military training, 
competition from nonnative vegetation, urban and agricultural 
development, and habitat degradation from frequent fires. Seventy-four 
percent of L. papilliferum occurrences are either completely or 
partially on Federal land managed primarily by the BLM and Air Force, 
and may be afforded some level of protection. Approximately 32 percent 
of L. papilliferum occurrences occur either partially or wholly on 
private lands. Of the 70 extant occurrences, only 6 (9 percent) are 
considered to be viable (A-ranked).
    Existing regulatory mechanisms are inadequate or ineffective in 
protecting this taxon. One conservation agreement has been developed 
and implemented for Lepidium papilliferum; however, it covers only one 
occurrence of the species representing less than 1.5 percent of the 
extant occurrences. Based on our evaluation, L. papilliferum meets the 
definition of endangered under the Act, which is a species in danger of 
becoming extinct throughout all or a significant portion of its range.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as the--(i) 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species, and (II) that may require special management 
considerations or protection, and (ii) specific areas outside the 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of section 4 of the Act, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species. ``Conservation'' means the use of all 
methods and procedures needed to bring the species to the point at 
which listing under the Act is no longer necessary.
    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time the species is determined to 
be endangered or threatened. Our implementing regulations (50 CFR 
424.12(a)) state that critical habitat is not determinable if 
information sufficient to perform the required analysis of impacts of 
the designation is lacking, or if the biological needs of the species 
are not sufficiently well known to allow identification of an area as 
critical habitat. Section 4(b)(2) of the Act requires us to designate 
critical habitat on the basis of the best scientific and commercial 
data available and to consider economic and other relevant impacts of 
designating a particular area as critical habitat on the basis of the 
designating a particular area as critical. The Secretary may exclude 
any area from critical habitat if she determines that the benefits of 
such exclusion outweigh the conservation benefits, unless to do so 
would result in the extinction of the species. In the absence of a 
finding that critical habitat would increase threats to a species, if 
any benefits would derive from critical habitat designation, then a 
prudent finding is warranted. In the case of this species, designation 
of critical habitat may provide some benefits.
    The primary regulatory effect of critical habitat is the section 7 
requirement that Federal agencies refrain from taking any action that 
destroys or adversely modifies critical habitat. While a critical 
habitat designation for habitat currently occupied by this species 
would not be likely to change the section 7 consultation outcome 
because an action that destroys or adversely modifies such critical 
habitat would also be likely to result in jeopardy to the species, 
there may be instances where section 7 consultation would be triggered 
only if critical habitat is designated. Examples could include 
unoccupied habitat or occupied habitat that may become unoccupied in 
the future. Designating critical habitat may also produce some 
educational or informational benefits. Therefore, designation of 
critical habitat for Lepidium papilliferum is prudent.
    However, our budget for listing activities is currently 
insufficient to allow us to immediately complete all the listing 
actions required by the Act. Listing Lepidium papilliferum without 
designation of critical habitat will allow us to concentrate our 
limited resources on higher priority listing actions, while allowing us 
to put in place protections needed for the conservation of this species 
without further delay. This is consistent with section 4(b)(6)(C)(i) of 
the Act, which states that final listing decisions may be issued 
without critical habitat designations when it is essential that such 
determinations be promptly published. The legislative history of the 
1982 Act amendments also emphasized this point: ``The Committee feels 
strongly, however, that, where biology relating to the status of the 
species is clear, it should not be denied the protection of the Act 
because of the inability of the Secretary to complete the work 
necessary to designate critical habitat. * * * The committee expects 
the agencies to make the strongest attempt possible to determine 
critical habitat within the time period designated for listing, but 
stresses that the listing of species is not to be delayed in any 
instance past the time period allocated for such listing if the 
biological data is clear but the habitat designation process is not 
complete'' (H.R. Rep. No. 97-567 at 20 (1982)). We will prepare a 
critical habitat designation in the future when our available resources 
and priorities allow.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
activities. Recognition through listing encourages public awareness and 
results in

[[Page 46448]]

conservation actions by Federal, State, and private agencies, groups, 
and individuals. The Act provides for possible land acquisition and 
cooperation with the State and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against certain activities involving 
listed plants are discussed, in part, below.
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to critical habitat, if 
any is being designated. Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Section 7(a)(4) of the Act requires Federal agencies to confer with us 
on any action that is likely to jeopardize the continued existence of a 
proposed species, or result in destruction or adverse modification of 
proposed critical habitat. If a species is listed subsequently, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species, or destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible federal agency must enter into 
consultation with us.
    Federal agencies that may have involvement with Lepidium 
papilliferum include the Federal Housing Administration and Farm 
Services Agency, which may be affected through potential funding of 
housing and farm loans where this species or its habitat occurs. 
Highway construction and maintenance projects that receive funding from 
the U.S. Department of Transportation for Federal highways will also be 
subject to review under section 7 of the Act. In addition, activities 
or actions that may affect populations of L. papilliferum that occur on 
Federal lands (e.g., managed by the BLM or Department of Defense) will 
be subject to section 7 review. Activities on private, State, county or 
city lands requiring a permit or funding from a Federal agency, such as 
a permit from the U.S. Army Corps of Engineers under section 404 of the 
Clean Water Act, or some other Federal action, including funding (e.g., 
from the Federal Highway Administration or Federal Emergency Management 
Agency), will also be subject to the section 7 consultation process. 
Federal actions not affecting the species, as well as actions on non-
Federal lands that are not federally funded, authorized, or permitted 
do not require section 7 consultation.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to all endangered or 
threatened plants. With respect to Lepidium papilliferum, all 
prohibitions of section 9(a)(2) of the Act, implemented by 50 CFR 17.61 
for endangered plants, apply (16 U.S.C. 1538(a)(2)). These 
prohibitions, in part, make it illegal for any person subject to the 
jurisdiction of the United States to import or export, transport or 
ship in interstate or foreign commerce in the course of a commercial 
activity, sell or offer for sale in interstate or foreign commerce, or 
remove and reduce to possession from areas under Federal jurisdiction, 
any plant listed as an endangered or threatened species. In addition, 
for plants listed as endangered, the Act prohibits the malicious damage 
or destruction on areas under Federal jurisdiction and the removal, 
cutting, digging up, or damaging or destroying of such endangered 
plants in knowing violation of any State law or regulation, including 
State criminal trespass law. Certain exceptions to the prohibitions 
apply to our agents and State conservation agencies.
    The Act and 50 CFR 17.62 and 17.63 also provide for the issuance of 
permits to carry out otherwise prohibited activities involving 
endangered plant taxa under certain circumstances. Such permits are 
available for scientific purposes and to enhance the propagation or 
survival of the species.
    Our policy, published in the Federal Register on July 1, 1994 (59 
FR 34272), is to identify, to the maximum extent practicable, those 
activities that would or would not constitute a violation of section 9 
of the Act at the time of listing. The intent of this policy is to 
increase public awareness of the effects of this listing on proposed 
and ongoing activities within the species' range. Collection, damage or 
destruction of this species on Federal land is prohibited, although in 
appropriate cases a Federal permit could be issued to allow collection 
for scientific or recovery purposes.
    Activities that we believe could potentially result in a violation 
of section 9 include, but are not limited to:
    (1) Grazing levels within L. papilliferum habitat that promote the 
invasion of nonnative species;
    (2) Placement of water, salt, and fences for livestock and its 
associated use within L. papilliferum habitat;
    (3) Grazing during wet periods that results in the disturbance of 
slickspot hydrology;
    (4) Fire rehabilitation that does not reseed to native shrub-steppe 
habitat and maintain slickspot integrity;
    (5) Failure to control wildfires in shrub-steppe habitats;
    (6) Residential or commercial development within shrub-steppe 
habitat with slickspots;
    (7) Uncontrolled off-road vehicle use and other recreational 
activities in L. papilliferum habitats;
    (8) Federal land exchanges that may result in the loss or 
degradation of L. papilliferum habitat; and
    (9) Application of pesticides/herbicides in violation of label 
    We believe that activities that are unlikely to violate section 9 
include any agricultural or residential uses on non-Federal land. We 
are not aware of any otherwise lawful activities being conducted or 
proposed by the public that will be affected by this listing and result 
in a violation of section 9.
    Questions regarding whether specific activities may constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Snake River Basin Office (see FOR FURTHER INFORMATION CONTACT). 
Requests for copies of the regulations on listed plants and animals, 
and general inquiries regarding prohibitions and permits, may be 
addressed to the U.S. Fish and Wildlife Service, Ecological Services, 
Endangered Species Permits, 911 N.E. 11th Ave., Portland, OR 97232-4181 
(telephone 503/231-2063; facsimile 503/231-6243).

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we are 
soliciting comments or suggestions from the public, other concerned 
governmental agencies, the scientific community, industry, or any other 
interested party concerning this proposed rule. We particularly seek 
comments concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to this species;
    (2) Additional information concerning the range, locations, and 
population size of this species;
    (3) Land use practices and current or planned activities in the 
subject areas and their possible impacts on this species; and
    (4) The reasons why any habitat should or should not be determined 
to be critical habitat pursuant to section 4 of the Act, including 
whether the benefit of designation will outweigh any benefits of 

[[Page 46449]]

    If you submit comments by e-mail, please submit them as an ASCII 
file and avoid the use of special characters and any form of 
encryption. Please also include ``Attn: RIN 1018-AI50'' and your name 
and return address in your e-mail message. If you do not receive a 
confirmation from the system that we have received your e-mail message, 
contact us directly by calling our Snake River Fish and Wildlife Office 
at telephone number 208/378-5243.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the Snake 
River Basin Office (see ADDRESSES).
    In making any final decision on this proposal, we will take into 
consideration the comments and any additional information we receive, 
and such communications may lead to a final regulation that differs 
from this proposal.

Public Hearings

    In anticipation of public interest in this issue, a public hearing 
has been scheduled for Thursday, August 29, 2002, from 1 p.m. until 3 
p.m. and from 6 p.m. until 8 p.m. at the AmeriTel Inn/Boise Spectrum, 
7499 W. Overland Rd, Boise, ID. Anyone wishing to make oral comments 
for the record at the public hearing is encouraged to provide a written 
copy of their statement and present it to us at the hearing. In the 
event there is a large attendance, the time allotted for oral 
statements may be limited. Oral and written statements receive equal 
    Persons needing reasonable accommodations in order to attend and 
participate in the public hearing should contact Patti Carroll at 503/
231-2080 as soon as possible. In order to allow sufficient time to 
process requests, please call no later than 1 week before the hearing 

Peer Review

    In accordance with our policy published in the Federal Register on 
July 1, 1994 (59 FR 34270), we will seek the expert opinions of at 
least three appropriate and independent specialists regarding this 
proposed rule. The purpose of such review is to ensure that listing 
decisions are based on scientifically sound data, assumptions, and 
analyses. We will send the peer reviewers copies of this proposed rule 
immediately following publication in the Federal Register. We will 
invite them to comment, during the public comment period, on the 
specific assumptions and conclusions regarding the proposed listing of 
Lepidium papilliferum.

National Environmental Policy Act

    We have determined that an environmental assessment and/or an 
environmental impact statement, as defined by the National 
Environmental Policy Act of 1969, need not be prepared in connection 
with regulations adopted pursuant to section 4(a) of the Endangered 
Species Act, as amended. We published a notice outlining our reasons 
for this determination in the Federal Register on October 25, 1983 (48 
FR 49244).

Executive Order 12866

    Executive Order 12866 requires agencies to write regulations that 
are easy to understand. We invite your comments on how to make this 
proposal easier to understand including answers to questions such as 
the following--(1) Are the requirements in the document clearly stated? 
(2) Does the proposed rule contain technical language or jargon that 
interferes with the clarity? (3) Does the format of the proposed rule 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? (4) Is the description of the proposed rule 
in the SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the proposed rule? What else could we do to make the 
proposed rule easier to understand?
    Send a copy of any written comments about how we could make this 
rule easier to understand to: Office of Regulatory Affairs, Department 
of the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. 
You also may e-mail comments to: Exsec@ios.doi.gov.

Paperwork Reduction Act

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose record keeping 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. The existing OMB control number is 1018-0094 for permit 
applications regarding endangered and threatened species; this control 
number expires 

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires Federal agencies to prepare 
Statements of Energy Effects when undertaking certain actions. This 
rule is not expected to significantly affect energy supplies, 
distribution, or use. Therefore, this action is not a significant 
action, and no Statement of Energy Effects is required.

References Cited

    A complete list of all references cited in this document, is 
available upon request from the Snake River Basin Office (see ADDRESSES 


    The primary authors of this proposed rule are Jeri Wood, U.S. Fish 
and Wildlife Service, Snake River Basin Office (see ADDRESSES), and 
Barbara Behan, U.S. Fish and Wildlife Service, Regional Office, 
Portland, OR.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    For the reasons given in the preamble, we hereby propose to amend 
part 17, subchapter B of chapter I, title 50 of the Code of Federal 
Regulations, as set forth below:


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

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

    2. Section 17.12(h) is amended by adding the following, in 

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order under FLOWERING PLANTS to the List of Endangered and Threatened 

Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

------------------------------------------------------    Historic range           Family            Status      When listed    Critical       Special
         Scientific name              Common name                                                                                habitat        rules
        Flowering Plants

                   *                  *                  *                  *                  *                  *                  *
Lepidium papilliferum...........  Slickspot            U.S.A. (ID)........  Brassicaceae.......  E                                     NA            NA
                                   peppergrass.                             (Mustard)..........

                   *                  *                  *                  *                  *                  *                  *

    Dated: July 5, 2002.
Steve Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 02-17715 Filed 7-12-02; 8:45 am]