[Federal Register: July 18, 2003 (Volume 68, Number 138)]
[Proposed Rules]               
[Page 42666-42668]
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)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; 6-month extension of the deadline for final

[[Page 42667]]

determination and reopening of comment period.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a 
6-month extension of the deadline for a final determination of whether 
to list Lepidium papilliferum (slickspot peppergrass) and reopening of 
the comment period on the proposed rule to list the species. We are 
taking this action because there is substantial disagreement regarding 
the sufficiency or accuracy of the available data relevant to the 
proposed listing rule, making it necessary for us to solicit additional 
information by reopening the public comment period. Comments previously 
submitted need not be resubmitted as they already have been 
incorporated into the public record and will be fully considered in the 
final rule.

DATES: We will accept comments and information pertaining to the 
proposed rule through August 18, 2003. Comments must be received by 
5:00 p.m. on the closing date. Any comments that are received after the 
closing date may not be considered in the final decision on this 
action. The date for submitting our final determination on the proposed 
listing to the Federal Register is extended to January 15, 2004.

ADDRESSES: Copies of the draft proposal are available on the Internet 
at: http://endangered.fws.gov/frpubs/02fedreg.htm or by writing to the 
Supervisor, U.S. Fish and Wildlife Service, Snake River Basin Office, 
1387 S. Vinnell Way, Room 368, Boise, ID 83709.
    If you wish to comment, you may submit written comments and 
information to the Supervisor at the address above. You may also send 
comments by electronic mail (e-mail) to: fw1srbocomment@fws.gov. See 
the Public Comments Solicited section below for file format and other 
information about electronic filing.
    Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 

FOR FURTHER INFORMATION CONTACT: Supervisor, Snake River Fish and 
Wildlife Office, 1387 S. Vinnell Way, Room 368, Boise, ID 83709 
(telephone 208/378-5243; facsimile 208/378-5262).



    Lepidium papilliferum is a herbaceous annual or biennial plant that 
occurs in sagebrush-steppe habitats. This species is found along the 
Snake River Plain and Owyhee Plateau in Ada, Canyon, Gem, Elmore, 
Payette, and Owyhee Counties, Idaho. Lepidium papilliferum 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. For further 
information regarding background biological information, previous 
Federal actions, factors affecting the species, and conservation 
measures available to Lepidium papilliferum, please refer to our 
proposed rule to list the species, which was published on July 15, 2002 
(67 FR 46441).

Previous Federal Action

    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) 
requesting emergency listing of Lepidium papilliferum as threatened or 
endangered. 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, in litt. 2001). We also stated that our initial review of 
their petition did not indicate an emergency action was warranted.
    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 the 
species 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 with 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, and a final 
determination or finding by July 15, 2003.
    On July 15, 2002, we published a proposed rule to list Lepidium 
papilliferum as an endangered species (67 FR 46441). During the initial 
public comment period, which closed on September 13, 2002, we published 
legal notices in local Idaho newspapers and held hearings. On September 
25, 2002, we reopened the comment period for an additional 60 days to 
allow additional time for all interested parties to submit written 
comments on the proposal (67 FR 60206). The second comment period 
closed on November 25, 2002.

Independent Scientific Review

    In accordance with our July 1, 1994, Interagency Cooperative Policy 
on Peer Review (59 FR 34270), we requested the expert opinion of 12 
independent scientists regarding the pertinent scientific or commercial 
data and assumptions concerning biological and ecological information 
used in the proposed rule. The purpose of such a review is to ensure 
that the listing decision is based on scientifically sound data, 
assumptions and analyses, including input of appropriate experts and 
specialists. The 12 reviewers we asked to review the proposed rule were 
selected based on their expertise on L. papilliferum natural history 
and ecology. We requested that they review the proposed rule and 
provide any relevant scientific data relating to taxonomy, 
distribution, population status, or the supporting biological and 
ecological data used in our analyses of the listing factors.
    Six of the 12 scientific reviewers provided comment to us. One did 
so as part of the official comments of the U.S. Air Force. Five peer 
reviewers supported the sufficiency and the accuracy of the available 
data relevant to the proposed rule and one, through the U.S. Air Force 
comments, did not. The U.S. Air Force comments, dated September 11, 
2002, were a compilation of reviews conducted by five Ph.D. scientists 
and one research agronomist. It was, by far, the most detailed and 
comprehensive review of the proposed rule conducted by any of the peer 
reviewers. The areas of substantial disagreement among the reviewers 
that were raised by the U.S. Air Force comments center around the 
sufficiency or accuracy of data used to represent population status and 
trends of L. papilliferum, and the likelihood of threats causing 
further declines of the species.
    For example, the available scientific data on population status and 
trends since 1994 shows an increase from 38 to 75 in the number of 
known element occurrences (specific geographical location containing a 
species of concern) of L. papilliferum. The total area of all combined 
existing element occurrences within the known range of this species has 
nearly doubled since 1994. The total acreage of slickspots known to be 
occupied by L. papilliferum within the 20,500-acre area across the 
range of the species is not known. While the data also shows that 13 
occurrences have become extinct since 1911 and 5 previously reported

[[Page 42668]]

collection areas have not been recently affirmed, there is substantial 
disagreement over whether or not the available data is sufficient to 
indicate a continuing trend of decline toward extinction. Furthermore, 
since annual population numbers are known to vary widely within element 
occurrences of L. papilliferum, there is substantial disagreement over 
whether or not the monitoring data collected since 1995 is sufficient 
to support either an increasing or a decreasing population trend.
    A second example involves the threats to L. papilliferum caused by 
the conversion and degradation of the sagebrush-steppe ecosystem from 
agricultural conversion, urbanization, invasion of non-native plants, 
increased wildfire frequency, and livestock grazing. The impacts 
described in the proposed rule that are associated with these threats 
include extirpation of populations due to habitat conversion and 
wildfire, competition from non-native annual grasses that invade after 
fires, negative impacts from fire rehabilitation, and trampling by 
cattle while grazing. While there are reported and documented examples 
of these impacts occurring, there is substantial disagreement among the 
scientific reviewers about the number of reported observations being 
sufficient to conclude an overall negative impact to the species is 
likely to occur. This disagreement extends to important conclusions 
concerning the interaction of inherently vulnerable characteristics 
such as rarity of individuals and limited and isolated habitat types, 
as compared to the biological resiliency of L. papilliferum.

Six-Month Extension

    In accordance with section 4(b)(6)(B)(i) of the Act, the 6-month 
extension of the deadline for our final determination on whether to 
list L. papilliferum will be used to solicit and evaluate additional 
data to further address the sufficiency or accuracy of the available 
data. During this time, we will employ additional techniques for 
organizing the data for further analysis and evaluation of the status 
of the species and the risks it faces.
    In addition to soliciting data and conducting further analyses to 
address the disagreement in the sufficiency and accuracy of the 
available data, during the 6-month extension period the Service plans 
to draft a Conservation Agreement for L. papilliferum in coordination 
with the State of Idaho and other affected and interested parties. The 
Service believes that finalization and implementation of this agreement 
would have immediate benefit to the conservation of the species. The 
Service and the participating parties would be able to implement, 
through this agreement, a number of immediate conservation measures, 
and would therefore be able to bring protection to the species much 
more quickly than the conservation measures associated with section 7 
consultations of the Act initiated upon the species listing and the 
recovery process. In addition, the conservation agreement would provide 
L. papilliferum with some protections the Service would not be able to 
obtain through the Act's legal requirements. Specifically, the 
conservation agreement would provide for some protections for the 
peppergrass, specifically with private land owners, which are not 
required pursuant to the Act.
    Furthermore, during this 6-month extension the Service will work 
with the U.S. Air Force to update their Integrated Natural Resource 
Management Plan (INRMP) to further address the conservation needs of 
Lepidium papilliferum.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) Biological, commercial trade, or other relevant data concerning 
any threat (or lack thereof) to this species;
    (2) The location of any additional populations of this species;
    (3) Additional information concerning the range, distribution, and 
population size of this species; and
    (4) Current or planned activities in the subject area and their 
possible impacts on this species.
    Previously submitted written comments on this proposal need not be 
resubmitted. If you submit comments by e-mail, please submit them in 
ASCII file format and avoid the use of special characters and 
encryption. Please include ``Attn: RIN 1018-AI50'' and your name and 
return address in your e-mail message. If you do not receive a 
confirmation from our system that we have received your e-mail message, 
contact us directly by calling our Snake River Basin Fish and Wildlife 
Office at telephone number 208/378-5243. Comments and materials 
received will be available for public inspection, by appointment, 
during normal business hours at the Snake River Basin Fish and Wildlife 
Office (see ADDRESSES).
    In making any final decision on the proposed action, 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 the proposal.


    The primary author of this notice is Jeff Foss, U.S. Fish and 
Wildlife Service, Supervisor, Snake River Fish and Wildlife Office, 
Boise, ID.


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

    Dated: July 15, 2003.
Marshall P. Jones,
Acting Director, Fish and Wildlife Service.
[FR Doc. 03-18402 Filed 7-16-03; 12:56 pm]