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###### Department of the Interior

###### Fish and Wildlife Service

          - 50 CFR Part 17
          - [FWS-R1-ES-2008-0096; MO 922105083-B2]
          - RIN 1018-AW34

# AGENCY:

Fish and Wildlife Service, Interior.

# ACTION:

Proposed rule; reopening of comment period and notice of document availability.

# SUMMARY:

                        We, the U.S. Fish and Wildlife Service (Service), announce the availability of new information relevant to our consideration of the status of                               ( print page 11343)    *Lepidium papilliferum*                         (slickspot peppergrass), proposed for listing as endangered, under the Endangered Species Act of 1973, as amended (Act). We, therefore, announce the reopening of the comment period on the proposed listing and invite interested members of the public to submit comments on this new information as it applies to the status and proposed listing of                         *L. papilliferum*. Information previously submitted for this proposed listing need not be resubmitted, as all information already received regarding this proposed listing will be incorporated into the public record and fully considered in our evaluation.                    

# DATES:

To allow adequate time for consideration of your comments, all information should be submitted to us by April 16, 2009.

# ADDRESSES:

You may submit comments by one of the following methods:
      -  Federal eRulemaking Portal:  http://www.regulations.gov . Follow the instructions for submitting comments.                    
      -  U.S. mail or hand-delivery:                          Public Comments Processing, Attn: Docket FWS-R1-ES-2008-0096; 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 post any personal information you provide us (see the                         *Public Comments*                         section below for more information).                    

# FOR FURTHER INFORMATION CONTACT:

                        Jeffery L. Foss, State Supervisor, U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office, by mail at 1387 S. Vinnell Way, Room 368, Boise, ID 83709; by telephone at 208-378-5243; by facsimile at 208/378-5262; or by electronic mail at:                         *fw1srbocomment@fws.gov*. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.                    

# SUPPLEMENTARY INFORMATION:

## Background

                    For a detailed description of Federal actions concerning                     *Lepidium papilliferum*, please refer to the September 19, 2008, Notice Reopening the Comment Period on the Proposed Rule to List                     *Lepidium papilliferum*                     as Endangered (73 FR 54345) and the January 12, 2007, Withdrawal Notice published in the                     **Federal Register**                     (72 FR 1621). A summary of the most recent Federal actions concerning the species is provided here.                

                    The notice that published on January 12, 2007 (72 FR 1621), served to withdraw our July 15, 2002, proposed rule (67 FR 46441) to list                     *Lepidium papilliferum*                     as endangered under the Act. The withdrawal of the proposed rule was based on our conclusion that, while the best available information indicated that certain threat factors were degrading the species' sagebrush-steppe matrix habitat, there was little evidence that these threats were negatively affecting the abundance of                     *L. papilliferum*, which inhabits slickspot microsites within the sagebrush-steppe ecosystem. In addition, we concluded that annual abundance of the plant was strongly correlated with spring precipitation, and therefore the high degree of variability observed in plant abundance over time was to be expected. Information on the plant's overall population trend was inconsistent, as it appeared to be decreasing in recent years in a subset of the species' range, but appeared to be increasing over those same years on a rangewide scale as expected in response to increased rainfall. Finding no consistent evidence of a rangewide negative population trend for the species, we concluded that                     *L. papilliferum*                     did not meet the definition of a threatened or endangered species under the Act.                

                    On June 4, 2008, the U.S. District Court for the District of Idaho vacated the Service's January 2007 withdrawal notice and remanded the decision to the Service for further consideration consistent with the Court's opinion (                    *Western Watersheds Project*                     v.                     *Jeffery Foss et al.*, Case No. 07-161-E-MHW). In response to the Court's decision, the Service notified the public on September 19, 2008, of the reinstatement of the July 15, 2002, proposed rule to list                     *Lepidium papilliferum*                     as endangered and opened a public comment period for 30 days through October 20, 2008. We received a total of seven comments during that comment period.                

                    Since the closure of the last comment period, new information has become available that is relevant to our evaluation of the proposed listing of                     *Lepidium papilliferum.*                     To ensure that our review of the species' status is complete and based on the best available scientific and commercial information, we are soliciting comments on this new information as it relates to the status and proposed listing of                     *L. papilliferum.*                     We have also specifically requested peer review of this new information and its relevance to the status of                     *L. papilliferum*                     from experts familiar with the species or its habitat; these reviews will also be accepted during this comment period.                

## New Information Available for Review

                    Information received, developed, or analyzed since the last comment period ended on October 20, 2008, is available for review by accessing the Web site                     *http://www.regulations.gov*                     (Docket ID FWS-R1-ES-2008-0096) or by contacting the State Supervisor (see                     **FOR FURTHER INFORMATION CONTACT**                     above). This information includes, but is not limited to, the following documents:                

                    (1) Analysis of Slickspot Peppergrass (                    *Lepidium papilliferum*) Population Trends on Orchard Training Area and Rangewide Implications (Sullivan and Nations 2009);                

                    (2)                     *Lepidium papilliferum*                     (Slickspot peppergrass) Evaluation of Trends 2004-2007 (Unnasch 2008);                

                    (3) Analysis of                     *Lepidium papilliferum*                     monitoring data collected on the Inside Desert (Owyhee Plateau) (2000-2002) (Wells and Popovich 2009);                

                    (4) GIS Analysis for the 2009 Status Review of Slickspot Peppergrass (                    *Lepidium papilliferum*) (Stoner 2009).                

                    The public comments received during the most recent public comment period, which closed on October 20, 2008, are also accessible for viewing at                     *http://www.regulations.gov*                     (Docket ID FWS-R1-ES-2008-0096), or by contacting the State Supervisor (see                     **FOR FURTHER INFORMATION CONTACT**                     above).                

## Public Comments

We will base any final action resulting from the proposed rule on the best scientific and commercial data available and intend to be as accurate and as effective as possible. Therefore, we request comments or suggestions on the proposed rule from the public, other concerned governmental agencies, the scientific community, industry, and any other interested parties.

                    We ask for comments concerning the new information contained in the analyses of                     *Lepidium papilliferum*                     population trends on the Orchard Training Area in southwest Idaho (Sullivan and Nations 2009), on the rangewide Habitat Integrity and Population (HIP) monitoring (Unnasch 2008), a recent analysis of                     *L. papilliferum*                     data collected on the Inside Desert (Owyhee Plateau) from 2000 to 2002 (Wells and Popovich 2009), and GIS analysis of                     *Lepidium papilliferum*                     (Stoner 2009). In particular, comments are sought regarding the relevance of the new information to the proposed listing status of                     *L. papilliferum,*                     as it pertains to the following:                          ( print page 11344)    

                    (1) Biological, commercial trade, or other relevant data concerning threats (or lack thereof) to                     *Lepidium papilliferum;*

                    (2) Additional information concerning the range, distribution, and population size of                     *Lepidium papilliferum,*                     including the locations of any additional populations of the species;                

                    (3) Any information on the biological or ecological requirements of                     *Lepidium papilliferum;*

                    (4) Current or planned activities in the areas occupied by                     *Lepidium papilliferum*                     and their possible impacts on the species.                

                    If you wish to comment, you may submit your comments and materials concerning this new information by one of the methods listed in the                     **ADDRESSES**                     section.                

                    If you submit information via                     *http://www.regulations.gov,*                     your entire submission—including your personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, 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. We will post all hardcopy submissions on                     *http://www.regulations.gov.*

                    All comments and materials we receive, as well as supporting documentation used, will be available for public inspection on                     *http://www.regulations.gov,*                     or by appointment during normal business hours at the U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office (see                     **FOR FURTHER INFORMATION CONTACT**                    ).                

                    At this time, we are soliciting new information on the status of                     *Lepidium papilliferum.*                     We will base our determination as to whether listing is warranted on a review of the best scientific and commercial information available, including all such information received as a result of this notice.                

## Authors

The primary authors of this notice are staff of the Idaho Fish and Wildlife Office, U.S. Fish and Wildlife Service.

## Authority

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

Dated: March 4, 2009.

Elizabeth H. Stevens,

Acting Deputy Director, Fish and Wildlife Service.

[FR Doc. E9-5697 Filed 3-16-09; 8:45 am]

BILLING CODE 4310-55-P