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###### Department of the Interior

###### Fish and Wildlife Service 

          - 50 CFR Part 17 
          - [FWS-R1-ES-2008-0096; MO 9221050083-B2] 
          - RIN 1018-AW34 

# 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. 

# SUPPLEMENTARY INFORMATION:

## 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 concerning: 

                    (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 proposal. 

                    Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, will be available for public inspection                           ( print page 54346)                        on                     *http://www.regulations.gov*, or by appointment, during normal business hours, at the Snake River Fish and Wildlife Office (see                     **FOR FURTHER INFORMATION CONTACT**                    ).                 

## 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 inconsistent.                 

                    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-MHW).                 

                    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.                 

## Author 

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

## Authority 

                    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] 

BILLING CODE 4310-55-P