[Federal Register: September 19, 2008 (Volume 73, Number 183)]
[Proposed Rules]               
[Page 54345-54346]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

[FWS-R1-ES-2008-0096; MO 9221050083-B2]
RIN 1018-AW34

Endangered and Threatened Wildlife and Plants; Listing the Plant 
Lepidium papilliferum (Slickspot Peppergrass) as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; reopening of comment period.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), notify the 
public of the reinstatement of our July 15, 2002, proposed rule to list 
Lepidium papilliferum (slickspot peppergrass) as endangered under the 
Endangered Species Act of 1973, as amended (Act). We announce the 
reopening of the public comment period on that proposed listing.

DATES: We will accept comments received on or before October 20, 2008.

ADDRESSES: You may submit comments by one of the following methods:
     Via the Federal eRulemaking Portal: http://
www.regulations.gov. Follow the instructions for submitting comments.
     By U.S. mail or hand-delivery to: Public Comments 
Processing, Attn: RIN 1018-AW34, Division of Policy and Directives 
Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, 
Suite 222, Arlington, VA 22203.
    We will not accept e-mail or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will also post 
any personal information included with your comments (see the Public 
Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Jeffery L. Foss, Field Supervisor, 
Snake River Fish and Wildlife Office, 1387 S. Vinnell Way, Room 368, 
Boise, ID 83709 (telephone 208-378-5243; facsimile 208-378-5262). If 
you use a telecommunications device for the deaf (TDD), you may call 
the Federal Information Relay Service (FIRS) at 800-877-8339.


Public Comments

    We intend that any final action resulting from the proposal will be 
as accurate and as effective as possible. Therefore, we are seeking 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning the proposed rule. We particularly seek comments 
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to Lepidium papilliferum;
    (2) Additional information concerning the range, distribution, and 
population size of this species; and
    (3) Current or planned activities in the subject area and their 
possible impact on this species.
    You may submit your comments and materials concerning the proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If you provide 
personal identifying information in your comment, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so.
    In making a final decision on the proposal, we will take into 
consideration the comments and any additional information we receive. 
Such communications may lead to a final rule that differs from the 
    Comments and materials we receive, as well as supporting 
documentation we used in preparing the proposed rule, will be available 
for public inspection

[[Page 54346]]

on http://www.regulations.gov, or by appointment, during normal 
business hours, at the Snake River Fish and Wildlife Office (see FOR 

Previous Federal Actions

    On July 15, 2002, we published a proposed rule (67 FR 46441) to 
list Lepidium papilliferum as endangered under the Act (16 U.S.C. 1531 
et seq.). For a description of Federal actions regarding Lepidium 
papilliferum prior to that proposed listing rule, please refer to that 
proposal. Here we provide a summary of the Federal actions concerning 
L. papilliferum from the 2002 proposed listing rule to this action.
    We accepted public comments on the July 15, 2002, proposed rule for 
60 days, until September 13, 2002. We held a public hearing on August 
29, 2002. On September 25, 2002 (67 FR 60206), and again on July 18, 
2003 (68 FR 42666), we reopened the public comment period on the 
proposed listing. On October 30, 2003, we made a Candidate Conservation 
Agreement (CCA) and a document compiled by the Service entitled ``Best 
Available Information for Slickspot Peppergrass'' available for public 
review and comment (68 FR 61821). On January 22, 2004, we published a 
withdrawal of our proposed rule to list Lepidium papilliferum as 
endangered (69 FR 3094). Our withdrawal was based on our conclusion 
that evidence of a negative population trend was lacking and that the 
formalized conservation plans (e.g., the CCA and Integrated Natural 
Resource Management Plans) had sufficient certainty that they would be 
implemented and effective such that the risk to the species was reduced 
to a level below the statutory definition of endangered or threatened.
    On April 5, 2004, the Western Watersheds Project filed a complaint 
challenging our decision to withdraw the proposed rule to list Lepidium 
papilliferum as endangered (Western Watersheds Project v. Jeffery Foss, 
et al., Case No. CV 04-168-S-EJL). On August 19, 2005, the U.S. 
District Court for the District of Idaho reversed our decision to 
withdraw the proposed rule, effectively reinstating our July 15, 2002, 
proposed rule (67 FR 46441). The Court remanded the case to the 
Secretary of the Department of the Interior for reconsideration of 
``whether a proposed rule listing the slickspot peppergrass as either 
threatened or endangered should be adopted.''
    Following the August 19, 2005, remand order, we notified Federal, 
State, and local agencies, county governments, elected officials, and 
other interested parties of the District Court's decision in a letter 
dated October 13, 2005. We requested new scientific data, information, 
and comments about Lepidium papilliferum by November 14, 2005. We also 
stated that scientific information received from the public would be 
utilized in an updated document entitled ``Draft Best Available 
Biological Information for Slickspot Peppergrass (Lepidium 
papilliferum)'' (BAI), which would combine all existing and new 
information regarding the species and its habitat. We accepted 
information through December 14, 2005, and received 13 comment letters 
in response to our request for additional information. From February 
27, 2006, through March 30, 2006, we accepted information from peer 
reviewers and others on the draft BAI and on conservation efforts for 
the species. We received an additional 36 comments. On October 23, 
2006, we opened an additional 22-day comment period through November 
13, 2006 (71 FR 62078) to allow the opportunity for public comment on a 
variety of documents, including peer review comments on the draft BAI 
and results of an expert panel workshop. We received 20 comments in 
response to this request for comments.
    On January 12, 2007, we withdrew our proposed rule to list Lepidium 
papilliferum as endangered under the Act (72 FR 1621). This withdrawal 
was based on our determination that the best available information 
indicated that, in regard to Lepidium papilliferum, ``* * * while its 
sagebrush-steppe matrix habitat is degraded, there is little evidence 
of negative impacts on the abundance of Lepidium papilliferum, which 
inhabits slickspot microsites within this system.'' The withdrawal 
further concluded that annual abundance of the plant is strongly 
correlated with spring precipitation; therefore, a high degree of 
variability in annual plant abundance is to be expected. Furthermore, 
evidence regarding the plant's overall population trend was 
    Subsequently, on April 16, 2007, the Western Watersheds Project 
filed another complaint challenging our January 2007 decision to 
withdraw the proposed rule to list Lepidium papilliferum as endangered 
(Western Watersheds Project v. Jeffery Foss et al., Case No. 07-161-E-
    On June 4, 2008, the U.S. District Court for the District of Idaho 
vacated the Service's January 2007 withdrawal of the proposed listing 
of Lepidium papilliferum, and remanded the decision to the Service for 
further consideration consistent with the Court's opinion. The Court's 
action effectively reinstates the July 15, 2002, proposed rule to list 
L. papilliferum as endangered (67 FR 46441). The Service will complete 
its review of the best available scientific and commercial data, 
including information and comments submitted during this comment 
period, as part of the remand process. We will then complete a new 
listing determination.


    The primary authors of this document are the staff at the Snake 
River Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).


    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: September 10, 2008.
Kenneth Stansell,
Acting Director, Fish and Wildlife Service.
[FR Doc. E8-21987 Filed 9-18-08; 8:45 am]