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CFR Citation: 50 CFR Part 17

RIN ID: RIN 1018-AI50

NOTICE: PROPOSED RULES

ACTION: Endangered and threatened species:

DOCUMENT ACTION: Proposed rule; withdrawal.

SUBJECT CATEGORY: Endangered and Threatened Wildlife and Plants; Withdrawal of Proposed Rule To List Lepidium papilliferum (Slickspot Peppergrass) as Endangered

DOCUMENT SUMMARY: We, the U.S. Fish and Wildlife Service (Service), withdraw the proposed rule, published in the Federal Register on July 15, 2002 (67 FR 46441), to list Lepidium papilliferum (slickspot peppergrass) as endangered. This withdrawal is based on our conclusion that there is a lack of strong evidence of a negative population trend, and the conservation efforts contained in formalized plans have sufficient certainty that they will be implemented and will be effective such that the risk to the species is reduced to a level below the statutory definition of endangered or threatened. Therefore, we are withdrawing the proposed determination to list L. papilliferum as endangered.

SUMMARY: Slicksport peppergrass; withdrawn,

SUPPLEMENTAL INFORMATION

Biological Overview and Survey History

Lepidium papilliferum is a herbaceous annual or biennial plant that occurs exclusively in sagebrushsteppe (Artemisia spp.) ecosystem at approximately 2,200 feet (ft) (670 meters (m)) to 5,400 ft (1,645 m) 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, Idaho. Efforts have been made to determine whether or not suitable habitat occurs in eastern Oregon. The Bureau of Land Management (BLM) determined that the only suitable habitat available for the species in Oregon was in the Succor Creek area of the Vale District of the BLM. Surveys were conducted in the spring of 2003 in Succor Creek (J. Findley, BLM, botanist, in litt. 2003). Based on these surveys and a review of the habitat, it was determined that the species does not occur nor does suitable habitat exist for this species in Oregon (Findley, in litt. 2003). BLM has also conducted limited surveys for L. papilliferum to the east of the current known range of the species within the Shoshone and Burley Field Office areas that have yielded no observations of plants (BLM, in litt. 2000).

Plant Characteristics and Life History Traits

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 difference in physical features between the two species such as: (1) L. papilliferum has trichomes (hairlike structures) occurring on the filaments of stamens (part of flower that produces pollen), but L. montanum does not; (2) all the leaves on L. papilliferum are pinnately divided, whereas L. montanum has some leaves that are not divided; (3) the shape of the silique (seed capsule) of L. papilliferum is different from that of L. montanum; and (4) the silique of L. papilliferum has no wings, or even vestiges of wings, at its apex (end of the capsule), unlike that of L. montanum (Moseley 1994). A recent review of the taxonomic status by R. Lichvar (in litt. 2002) concluded that, using classic morphological features and study of herbarium specimens, L. papilliferum has distinct features that may warrant species recognition. Also Meyer et al. (in press) concluded that the ecological and life history features of L. papilliferum are distinct from those of L. montanum and argued for the preservation of L. papilliferum as a distinct taxon.

Lepidium papilliferum is a taprooted annual or biennial plant that reaches 4 to 12 inches (in) (10 to 30 centimeters (cm)) in height. The species is a monocarpic plant that displays two life cycles. The annual life form matures, reproduces by setting seed, and dies in one growing season, whereas the biennial life form initiates growth in the first year, and does not produce seed and die until the second year. Leaves and stems are pubescent (covered with fine, soft hairs), and the divided leaves have linear segments (Moseley 1994). Numerous small, white 4petalled flowers terminate the branches. This species produces small, orbicular (spherical) fruits, which are approximately 0.1 in (3 millimeters) long.

Lepidium papilliferum is mainly visited and pollinated by bees (Anthophoridae, Apidae, Colletidae, Chrysididae, Formicidae, Halictidae, Sphecidae, and Vespidae families), flies (Bombyliidae, Syrphidae, and Tachinidae families), and some beetle species (Cerambycidae, Chrysomelidae, Dermestidae and Melyridae families). Limited visitation has also been observed by butterflies (Gelechiidae family) and bugs (Miridae family) (Robertson and Klemish 2003). Bees appear to be the most significant pollinators of L. papilliferum, with the highest pollen loads of all species observed (Robertson and Klemish 2003). Insect visitations have been shown to be essential for L. papilliferum pollination and fruit production (Robertson and Klemish 2003). The possibility of windmediated self or crosspollination is remote given that the structure of L. papilliferum flowers and pollen grains are not consistent with those of wind pollinated species (Robertson and Klemish 2003).

The primary seed dispersal mechanism for Lepidium papilliferum has not been definitively identified. Belnap (in litt. 2002) stated that, ``dispersal mechanisms cannot be established based on size, weight, or appendages of seeds, and it is not known how readily this plant can colonize new habitats.'' Animal transport, water, and wind may play a minor role, but the seed lacks structures to facilitate dispersal by animals, wind, or water (Moseley 1994). Due to the high winds at Juniper Butte and the weight of L. papilliferum seeds, it has been hypothesized that L. papilliferum is dispersed by wind (U.S. Air Force, in litt. 2002b) (Air Force). The weight of 100 L. papilliferum seeds ranges from 0.035 to 0.05 grams (Air Force, in litt. 2002b).

Like many shortlived plants growing in arid environments, the aboveground number of Lepidium papilliferum individuals at any one site can naturally fluctuate widely from one year to the next, depending primarily on seasonal precipitation patterns (Mancuso and [[Page 3095]]
Moseley 1998; Mancuso 2001; Meyer et al., in press). Aboveground plants represent only a portion of the population, with the seed bank (a reserve of dormant seeds, generally found in the soil) contributing the remainder, and apparently the majority, in many years (Mancuso and Moseley 1998). 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. Therefore, estimates of aboveground plants do not reflect actual population levels because the majority of the population exists in the seed bank (Moseley 1994). The extent of seed bank reserves is variable from occurrence to occurrence, and large fluctuations in the number of standing plants at a given site may occur from one year to the next. Depending on individual plant vigor, which is largely determined by the amount and timing of annual precipitation, and the effectiveness of pollination, dozens, if not thousands of seeds could be produced (Quinney 1998; Meyer et al. in press; M. Mancuso, Idaho Conservation Data Center (ICDC), pers. comm. 2003). Individual biennial plants generally produce a much greater number of seeds than individual annual plants, depending on the site (Robertson 2003; Meyer et al. in press). Because annual plants typically are more numerous than biennial plants, the total amount of seed produced by all successfully reproducing biennial plants in any given year is low in relation to the total amount of seed produced by all annual plants in the same year. Seeds produced in a given year may remain viable in the soil for up to 12 years (D. Quinney, Idaho Army National Guard (IDARNG), in litt. 2002; Meyer et al., in press).

Meyer et al. (in press) concluded that Lepidium papilliferum cannot succeed with an annual life history strategy within its variable habitat without a persistent seed bank. The majority of L. papilliferum seeds that are contributed to the seed bank in any given year are produced by annual plants rather than biennial plants because the survival of biennial plants through the dry summer conditions is low (Meyer et al., in press). Generally, seeds produced in a given year do not germinate that same year, and are dormant for at least a full year before any germination takes place. A constant proportion
(approximately 6 percent) of seeds produced from a given preceding year germinate annually. Depending on the timing and amount of annual precipitation, these young plants may or may not survive to flower and produce seed (Meyer et al., in press). Population modeling of stochastic (naturally and randomly occurring) events for L. papilliferum demonstrates the importance of years with aboveaverage precipitation in restocking the seed bank. The model predicts that if yearly annual precipitation over a 100year period meets or is below average precipitation levels, the population would not persist (Meyer et al., unpublished manuscript). Two research projects that further examine L. papilliferum seed banks and slickspot soils are currently being pursued by IDARNG and Air Force (Meyer et al. in litt. 2002, Air Force 2002c).

Research on other species (as well as theoretical models) has shown that species exhibiting wide population fluctuations, such as L. papilliferum, are more at risk of extinction than those with stable populations (S. Novak, Boise State University, in litt. 2002). Such species that experience wide population fluctuations can be entirely lost due to the process of demographic stochasticity (chance events that lead to the loss of individuals) in years when their numbers are at low levels. Seed banks are adaptations for survival in a ``risky environment,'' as they buffer a species from stochastic impacts such as lack of soil moisture, which could result in no seed production for a population in a given year (Baskin and Baskin 2001). The L. papilliferum seed bank and seed viability of up to 12 years are examples of such adaptations (Meyer et al., in press).

Habitat Features

Associated native species in the sagebrushsteppe habitat 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). Nonnative species frequently associated with L. papilliferum include Bromus tectorum (cheatgrass), Sisymbrium altissimum (tumble mustard), Ranunculus testiculatus (bur buttercup), Lepidium perfoliatum (clasping pepperweed), Agropyron cristatum (crested wheatgrass), and Kochia prostrata (forage kochia) (Moseley 1994; Mancuso and Moseley 1998; Meyer et al., in press).

Lepidium papilliferum is associated with small areas known as slickspots which are interspersed within the larger sagebrushsteppe habitat. Slickspots are also called miniplayas or natric sites (sites containing a subsurface horizon, characterized by a sharp increase in clay, columnar or prismatic structure, and high alkalinity). Slickspots are small, natural soil inclusions that exhibit unique physical characteristics in relation to the surrounding matrix of nonnatric soils. These sparsely vegetated microsites are very distinct from the surrounding shrubland vegetation; slickspots are characterized by a nearsurface distribution of soluble sodium salts, thin vesicular (small cavity) surface crusts, and shallow welldeveloped argillic (relating to clay mineral) horizons or layers (Fisher et al. 1996) that are impermeable when wet (A. Harkness, Natural Resource Conservation Service (NRCS), pers. comm. 2003).

Recent studies in 2002 and 2003 by the IDARNG and NRCS conducted at the Orchard Training Area in southwestern Idaho, have shown that slickspots are distinguishable from the surrounding soils by higher percent clay content below the first 0.8 in (2 cm) of soil. For example, at one site the percent of clay changed from 5.0 percent at 0 to 0.8 in (0 to 2 cm) (the first horizon) to 27.8 percent at 0.8 to 5.5 in (2 to 14 cm) (second horizon) (National Soil Survey Laboratory, in litt. 2003). The large shift in clay content is indicative of heavy soils, and the change from the first horizon to the second is an indication of the presence of a clay pan and a change in permeability (Harkness, pers. comm. 2003). All three horizons sampled also indicated a high level of sodium ranging from 10 to 31 percent. Soils with greater than 15 percent sodium are considered natric soils (Harkness, pers. comm. 2003). Soils in the surrounding environment had a clay content of 7.4 percent at a depth of 0 to 1.6 in (0 to 4 cm) in the first horizon, and a percent sodium of 2 (National Soil Survey Laboratory, in litt. 2003). In the winter, spring, and after thundershowers, slickspots often contain some surface water (Fisher et al. 1996; J. Klott, BLM, pers. comm. 2000). According to NRCS (unpublished report, 2001), the drainage class of slickspots is ``well drained with frequent ponding in winter and early spring.'' Slickspots are further described in this soil survey as small, low areas that stay moist a few weeks longer than the surrounding soils. As the soil surface dries, the slickspot argillic soil layer contracts, creating cracks that
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allow roots of plants such as L. papilliferum to extend deep into the underlying soil (A. Harkness, pers. comm. 2003). Compared to surrounding habitat areas, slickspots also have reduced levels of organic matter and nutrients, due to the lower biomass production (Fisher et al. 1996). The majority of slickspots range in size from less than 10 square feet (ft\2\) (1 square meter (m\2\)) to about 110 ft\2\ (10 m\2\) and occur within communities dominated by other plants. Some slickspot complexes may range up to 1,076 ft\2\ (100 m\2\) (Mancuso et al. 1998).

Rangewide, Lepidium papilliferum is associated with slickspots that cover a relatively small cumulative area within the larger sagebrush steppe ecosystem. For example, it is estimated that only 1 to 4 percent of slickspots are occupied by aboveground L. papilliferum plants in the Inside Desert (an interior portion of the Bruneau Desert) area of southwest Idaho (Popovich 2002). A slickspot is considered to be occupied if aboveground L. papilliferum plants are observed during the year of survey. Slickspots that do not contain aboveground plants during surveys may contain viable seeds; therefore, several years of surveys may be necessary to determine if slickspots are occupied. L. papilliferum has occasionally been documented as occurring on disturbed soils such as those along graded roadsides or adjacent to animal burrows. These appear to be uncommon situations, and the vast majority of plants documented over 10 years of surveys and monitoring for this species are associated with slickspots. For example, in 2002, a complete census of an 11,070acre (ac) (4,480hectare (ha)) area recorded approximately 56,500 slickspots (Air Force, in litt. 2003), of which approximately 2,450 (about 4 percent) were occupied by L. papilliferum plants (Bashore, pers. comm. 2003). Of the approximately 11,300 L. papilliferum plants documented during the survey effort, only 11 plants were documented outside of slickspots (Air Force 2002a). Similarly, in 3 years of annual surveys, L. papilliferum was only detected within 4 slickspots in 2002 (63 plants), and within 2 slickspots in 2003 (36 plants) along the same 39 miles (62.7 kilometers) of road rights of way in the Inside Desert subsequent to widening and improvement of the road (CH2MHill 2003). No plants were observed during the 2001 survey effort. The restricted and scattered distribution of L. papilliferum is likely a product of (a) the limited availability of these extremely localized, specific slickspot soil conditions, (b) the fragmentation of the sagebrushsteppe ecosystem in southwestern Idaho from agricultural and urban development, and (c) the conversion to annual, nonnative grasslands.

Documented Occurrences

An ``occurrence'' or ``element occurrence'' as defined by the ICDC represents a specific geographical location containing a species (or some other ``element'') of conservation concern. It is the standard database record used throughout the Natural Heritage Program/ Conservation Data Center network (ICDC 2002), of which ICDC is part (Mancuso and Moseley 1998). Occurrences of Lepidium papilliferum are comprised of one to many slickspot microsites documented to contain the plant. The area delineated by an occurrence contains slickspots known to be occupied by L. papilliferum interspersed within a matrix of unoccupied sagebrushsteppe habitat. Therefore, an occurrence includes slickspot habitat directly occupied by L. papilliferum, as well as part of the surrounding landscape not directly occupied. In many cases, this leads to only a small fraction of an occurrence area being directly occupied by L. papilliferum.

Occurrence boundaries are based on estimates delineating the extent of occupied Lepidium papilliferum habitat in an area. Occurrences may be depicted as a point (small occurrences comprised of only one or a few clustered occupied slickspots); a single polygon (occurrences comprised of occupied slickspots scattered over a more or less contiguous area); or of multiple polygons (occurrences comprised of two or more discrete areas having occupied slickspots). Occurrences range in size from less than 1 ac (0.40 ha) to 8,970 ac (3,630 ha) based on information provided by the ICDC (2003). The total estimated area of all extant occurrences as of February 2003 was approximately 20,500 ac (8,300 ha). Of this estimated total area, approximately 91 percent (18,655 ac (7,550 ha)) occurred on Federal land; 3 percent (615 ac (249 ha)) on private land; and 6 percent (1,230 ac (498 ha)) on State land.

The largest occurrence is located on the Air Force's Juniper Butte Training Range. In 1998, the Air Force acquired BLM land to establish the Juniper Butte ETR, under the Juniper Butte Range Withdrawal Act (PL 105261), 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 12,000 ac (4,856 ha) in size, and the landscape is a mosaic of sagebrushsteppe and nonnative plant communities, some of which has been impacted by past wildfire and subsequent conversion from the native sagebrushperennial grassland vegetation to nonnative perennial or annual grasslands (Air Force 2000). Slickspot habitat and Lepidium papilliferum plants have been observed scattered throughout the Juniper Butte ETR, and this single large occurrence constitutes 44 percent of the total known L. papilliferum occurrence area (ICDC 2003). Due to its expansive area and large numbers of plants, this occurrence has high conservation value for L. papilliferum. The value of this occurrence could be further enhanced through restoration of sagebrushsteppe habitat within the area. A very thorough field inventory within the Juniper Butte Training Range in 2002 found that of the 11,070 ac (4,480) surveyed, approximately 1 percent (109 ac (44.1 ha)) consisted of slickspot microsite habitat; however, only 4 percent of this slickspot habitat was occupied by L. papilliferum (Air Force 2002a). This makes the total amount of occupied slickspot habitat within this large occurrence approximately 4 ac (1.6 ha) at the time it was surveyed.

The ICDC database contains a total of 93 Lepidium papilliferum occurrences. Of this total, 75 are extant (exist), 5 are historical, and 13 are considered extirpated (ICDC 2003). Historical occurrences are those based on collections made between 1911 and 1974, but which have not been relocated in more recent years. In most cases, the collections have vague location information, making their relocation problematic. The historical category has an implied expectation that the occurrences may be relocated in the future. Occurrences are considered extirpated if the native vegetation has been converted to cropland or urban/commercial uses, or the habitat is so severely modified that it is no longer capable of supporting L. papilliferum (ICDC 2003). As of February 2003, and since publication of the proposed rule in (67 FR 46441; July 15, 2002), the number of extant occurrences has increased by 5 (from 70 to 75), as a result of recent field survey efforts. The five new L. papilliferum occurrences total approximately 50 ac (20 ha). New L. papilliferum occurrences have been discovered in the Inside Desert on BLM lands during survey efforts in 2003 (Vision Air Research 2003). The new L. papilliferum locations identified during the 2003 field season have not yet been incorporated into the ICDC database at
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the time of publication of this rule, and so are not reflected in the discussion of L. papilliferum occurrences or area.

Fortynine of the 75 extant occurrences (65 percent) are located completely on Federal land managed by the BLM or Air Force, and 6 occur completely on private land (8 percent). Three occurrences (4 percent) are located completely on either county or city lands. The 17 remaining occurrences (23 percent) encompass areas of multiple land ownership, representing a mixture of Federal, State, and/or private lands. Ranking of Occurrence Quality

Sixty of the 75 extant occurrences of Lepidium papilliferum have been ranked by ICDC using 4 definitions, A through D, with A representing sites with the greatest number of aboveground plants, best quality habitat, and highest probability of longterm
survivability (Moseley 1994). In general, the number of L. papilliferum individuals at each extant occurrence can range from 1 to greater than 10,000 (M. Mancuso, pers. comm. 2003a; ICDC 2003); however, the majority (42) of the 60 ranked extant occurrences contain less than 200 individuals. The total area of all ranked occurrences is approximately 20,131 ac (8,147 ha). The remaining 15 of the 75 extant occurrences are not yet ranked by ICDC due to a lack of information on habitat characteristics (S. Cooke, pers. comm. 2003). The total area of the unranked occurrences is approximately 366 ac (148 ha), with an average size of approximately 24 ac (10 ha) (ICDC 2003).

While we recognize the inherent limitations of this occurrence quality ranking methodology as not being quantitative and difficult to replicate, we believe it to represent the best available tool in which to examine and rank Lepidium papilliferum occurrences and habitat quality. As a result, we have used it as a tool in our analysis for this final determination.
``A''ranked occurrences, as defined by ICDC, ``consist of those with large population numbers occurring in highquality sagebrush steppe communities. The occurrences also tend to be large in area, consisting of many slickspots spread over a contiguous area. `A'ranked populations generally consist of populations with greater than 1,000 aboveground individuals in sagebrush stands consisting mostly of native perennials; these sites generally have not burned and do not support exotic annuals'' (Moseley 1994). Of the 60 extant ranked occurrences, 7 (12 percent) are considered ``highquality'' or ``A'' ranked. The 7 ``A''ranked occurrences are estimated to encompass approximately 6,596 ac (2,669 ha), which is 33 percent of the total estimated acreage of all ranked occurrences. Approximately 4,430 ac (1,793 ha), or 67 percent, of this ``A''ranked area is located within 2 occurrences on the IDARNG's Orchard Training Area (OTA) (ICDC 2003). ``B''ranked occurrences, as defined by ICDC, range from ``about 400 to 2,000 individuals,'' however, the ``average'' occurrence of this rank consists of several hundred plants in goodto highquality sites. ``B''ranked occurrences can include sites containing 400 to 600 individual plants (low end of the range) occurring in highquality habitat and/or thousands of individuals (high end of the range) that occur in fairto lowquality sites (burnedover cheatgrass stands or crested wheatgrass seedings) (Moseley 1994). Nine (15 percent) of the 60 ranked extant occurrences are ``B''ranked. The 9 ``B''ranked occurrences total approximately 10,683 ac (4,323 ha), or 53 percent of the total area of all ranked occurrences. Approximately 8,970 ac (3,630 ha) of this 10,683 ac area is located within one large occurrence on the Air Force's Juniper Butte Training Range. This single large occurrence was assigned a ``B''ranking (the proposed rule erroneously identified this as a ``C''ranking) because much of the habitat within this occurrence has been degraded by wildfires and subsequent seedings of crested and intermediate wheatgrass prior to the land being withdrawn for Air Force management (Air Force 2002b; ICDC 2003). The average size of the ``B''ranked occurrences is approximately 1,187 ac (480 ha).
``C''ranked occurrences, as defined by ICDC, ``consist of as few as 25 to greater than 1,000 individuals.'' The ``average'' ``C''ranked occurrence consists of 100 to 200 individuals in fairto lowquality habitat. The occurrences with smaller numbers of aboveground plants occur in large tracts of highquality habitat, while occurrences at the high end of the range of the numbers of aboveground plants are in severely disturbed habitats or those that are adjacent to recent developments and are not expected to remain viable (Moseley 1994). Of the 60 extant ranked occurrences, 21 (35 percent) are ``C''ranked. The 21 ``C''ranked occurrences total approximately 731 ac (296 ha), or 3 percent of the total area of all ranked occurrences. The average size of the 21 ``C''ranked occurrences is approximately 35 ac (14 ha) (ICDC 2003).
``D''ranked occurrences, as defined by ICDC, ``consist of generally less than 50 individuals (often less than 25) occurring as isolated populations in degraded habitats,'' and are not expected to remain viable (Moseley 1994). Eighteen (30 percent) of the 60 extant ranked occurrences are ``D''ranked. The 18 ``D''ranked occurrences total approximately 1,890 ac (765 ha), or 9 percent of the acreage of all ranked occurrences, with an average size of approximately 105 ac (43 ha). The average size of the ``D''ranked occurrences is biased by a single 1,495ac (605ha) occurrence. The average size of the ``D'' ranked occurrences is reduced to approximately 23 ac (9 ha) if this single 1,495ac (605ha) occurrence is excluded from the calculation.

Five of the 60 extant ranked occurrences have been categorized by ICDC as intermediate between the 4 defined ranks. Four (7 percent) are identified as ``B/C''ranked, and total approximately 208 ac (84 ha), or 1 percent of the area of all ranked occurrences. The 4 ``B/C'' ranked occurrences have an average size of approximately 52 ac (21 ha). The remaining ranked occurrence is identified as ``C/D''ranked. The single ``C/D''ranked occurrence totals approximately 23 ac (9 ha), and constitutes 1 percent of the area of all ranked occurrences (ICDC 2003). Given the definition of rankings by ICDC, approximately 27 percent of all ranked occurrences or approximately 86 percent of the estimated area of all ranked occurrences are ranked as A or B, populations considered to have a high to moderate probability of long term survival.

Over the period from 1994 through the 2002 field season, 13 of the extant Lepidium papilliferum occurrences have decreased in quality. Because of the effects of habitat degradation and fragmentation, 1 declined to a ``B'' rank and 12 declined to a ``C'' or ``D'' rank (ICDC 2003). The total area of occurrences documented as declining in rank is approximately 3,278 ac (1,326 ha), 16 percent of the total area of all ranked occurrences. Decreases in rank as documented from evaluation of ICDC data reflect additional impacts to the habitat quality or habitat defensibility beyond those in the original ranking of the occurrence (ICDC 2003).

During the same period, 8 (10 percent of) documented L. papilliferum occurrences have increased in quality because of the acquisition of better information from subsequent surveys since their original 1994 ranking: four increased to an ``A'' rank, three [[Page 3098]]
increased to a ``B'' rank, and one increased to a ``C'' rank (ICDC 2003). The total area of occurrences documented as increasing in rank is approximately 3,251 ac (1,316 ha), 16 percent of the total area of all ranked occurrences. Increases in rank as documented from evaluation of ICDC data are attributed to expansion of known occurrences (greater area documented as containing plants, or greater numbers of plants) due to increased survey effort and do not reflect an improvement in the habitat quality or defensibility (ICDC 2003).

Some disagreement as to the accuracy of some L. papilliferum locations, area extent, and rankings within the ICDC database has been raised. ICDC has indicated that review and update of the ICDC database for L. papilliferum is a priority for 2004 section 6 funding (ICDC, in. litt. 2003). In any event, the current ICDC database constitutes the best available scientific information on L. papilliferum location and occurrence quality.

Habitat Integrity Index Monitoring of Occurrences

To provide a consistent monitoring methodology for use by management agencies, the ICDC in 1997 initiated a collaborative effort that included participation by the IDARNG, BLM, Air Force, and the Service. The result of this effort was development of a habitat integrity index (HII) for use in assessing and monitoring occupied Lepidium papilliferum habitat in southwestern Idaho (Mancuso and Moseley 1998). Index methodology is commonly used in ecological monitoring, and the HII protocol has been used since 1998 by ICDC, BLM, Air Force, and IDARNG to collect data on slickspot microsites and surrounding habitats. Effective monitoring of an annual plant species with a longlived seed bank is often difficult, so use of a monitoring method that focuses on habitat condition may be more successful than monitoring of the aboveground expression of the seed bank (Elzinga et al. 1998).

The HII data represents the best available sitespecific data for the occurrences of L. papilliferum. The HII data has its limitations, including a relatively short survey period of 5years, not all occurrences are sampled each year, and the qualitative or subjective nature of some of its determinations. HII provides valuable information about occurrences of L. papilliferum and its habitat, but it was not designed to be a scientifically rigorous methodology that lends itself to statistical analysis.

The abundance of aboveground plants may fluctuate significantly from year to year due to sitespecific microclimate conditions, especially precipitation. HII was developed to assess the overall habitat condition that includes those attributes associated with the slickspot microsite and the sagebrushsteppe habitat, and to assess the prospects that an occurrence will persist over time, including factors affecting the viability and defensibility (degree of protection from humancaused impacts) of the occurrence (Mancuso 2001). This HII monitoring protocol consists of four components: (1) Sampling along a transect to acquire specific slickspot microsite and adjacent habitat information; (2) vegetation plot sampling; (3) photo points; and (4) an Occurrence Viability scorecard.

Monitoring of fixed transects using HII has taken place annually since 1998. A core set of 38 transects were monitored annually over the period 19982001 with some years including monitoring of transects beyond the core set of 38. HII results illustrate how the number of Lepidium papilliferum counted at any one site can fluctuate from year to year. For example, in 1998, approximately 16,000 L. 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 2 additional transects. Mancuso (2001) continued his monitoring of these transects in 2000, documenting approximately 7,100 L. papilliferum plants. In 2001, approximately 4,045 L. papilliferum plants were observed on 48 transects, including core set of 38 occurrences (Mancuso 2002). The core set of 38 occurrences monitored using HII represent 51 percent of the 75 extant occurrences and 94 percent (approximately 19,243 ac (7,787 ha)) of the total known area occupied by L. papilliferum. In 2002, approximately 372 L. papilliferum were counted along 27 transects situated within 21 occurrences, representing the lowest cumulative total recorded for this set of transects in 5 years (Mancuso 2003).

In summary, ICDC HII monitoring results from 1998 through 2001 revealed there has not been a dramatic, rapid, widespread decline in the condition of slickspot peppergrass habitat (Mancuso 2002). It also shows habitat improvement is limited to a few sites. The pattern the past four years has been a slow, but steady decline, affecting a few occurrences each year. For example, after the 2001 monitoring season conditions did not seem too much different or worse than the 2000 monitoring season (Mancuso 2002). HII monitoring results for the 2002 field season revealed no transects with an overall improving trend, two transects showed decline, and the remaining 15 transects were either stable or showed no clear upward or downward trend (Mancuso 2003). 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) requesting emergency listing of Lepidium papilliferum as threatened or endangered. The petition included information on threats to the species, including: competition with nonnative annual and perennial vegetation, incompatible livestock grazing practices, incompatible herbicide application, inbreeding depression, and fire rehabilitation. 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 separately on candidate species because 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 L. papilliferum as endangered or threatened on a nonemergency basis [[Page 3099]]
(Committee for Idaho's High Desert and Western Watersheds Project v. Anne Badgley, et al. (Case No. CV 011641AS)). On April 2, 2002, based on a settlement agreement with the Petitioners, the U.S. District Court for the District of Oregon 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 by July 15, 2003.

On July 15, 2002, we published a proposed rule to list Lepidium papilliferum as an endangered species (67 FR 46441). The initial 60day public comment period closed on September 13, 2002. Legal notices of the proposed rule were published in the Mountain Home News in Elmore County on July 17, 2002, The Idaho Statesman in Ada County on July 18, 2002, and The Owyhee Avalanche in Owyhee County on July 24, 2002. These published legal notices invited the public to comment and to attend a public hearing in Boise, Idaho, on August 28, 2002. On July 22, 2002, we received a congressional request to have additional public hearings. Following that request, we published additional notices of the proposed rule, comment period, and modified hearing schedule in The Owyhee Avalanche, the IndependentEnterprise in Payette County, and the Emmett MessengerIndex in Gem County on August 14, 2002. On August 29, 2002, we held a public hearing on the proposal in Grand View, Idaho. 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.

After review of public comments and additional information received during the second comment period, we determined there was substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the proposed listing rule, making it necessary to solicit and evaluate additional data to address this disagreement. On July 18, 2003, we published a finding (68 FR 42666) announcing a 6 month extension of the deadline for a final listing determination for L. papilliferum. In accordance with section 4(b)(6)(B)(i) of the Act, the 6month extension of the deadline for our final determination on whether to list L. papilliferum was used to solicit and evaluate additional data to further address the sufficiency or accuracy of the available data. A third public comment period was opened for 30 days on July 18, 2003, and closed on August 18, 2003. During the 6month extension period, we updated the best available scientific information on L. papilliferum, using information received during the two 60day comment periods, and the subsequent 30day comment period associated with the extension. We also employed additional techniques (e.g., science panel review) 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 analysis to address the disagreement in the sufficiency and accuracy of the available data, we worked with the Air Force and IDARNG to update their Integrated Natural Resource Management Plans (INRMPs) and to further address the conservation needs of L. papilliferum. We reviewed and commented on the INRMPs and we also provided technical assistance on policy and science to several partner agencies and affected private individuals in their development of the Candidate Conservation Agreement for Slickspot Peppergrass (Lepidium papilliferum) (Idaho Office of Species Conservation 2003) (CCA). The CCA was developed between July and December 2003 by the Idaho Governor's Office of Species Conservation (OSC), the Idaho Department of Agriculture, the Idaho Department of Fish and Game, the Idaho Department of Lands, the IDARNG, the BLM, and several private property owners who hold grazing permits on BLMmanaged and maintained lands, collectively referred to as Cooperating Parties. The purpose of the CCA is to join the BLM, State of Idaho, and IDARNG with nongovernmental cooperators to implement conservation measures for slickspot peppergrass. The goal of the CCA is to conserve the species and its habitat while protecting the longterm sustainability of predictable levels of land use in southern Idaho. We attended meetings and provided technical assistance and guidance in the development of the CCA.

On October 30, 2003, we published a notice announcing the availability of, and soliciting review and comment on the draft CCA and our document, ``Best Available Information on Lepidium papilliferum'' (68 FR 61821). Both documents contained information we planned to utilize in making a final listing determination for the species. This 14day public comment period closed November 14, 2003. Comments received on both documents were received and taken into consideration in the development of this final determination. Further, comments received on the CCA were made available to the Idaho Governor's Office of Species Conservation (OSC) and their Cooperating Parties so that they could evaluate and incorporate them into the final CCA as appropriate.
Summary of Comments and Recommendations

Summary of Public Comments on Proposed Rule

Following the publication of the proposed rule on July 15, 2002 (67 FR 46441), we contacted and provided copies of the proposal to Federal, State, and local agencies, county governments, elected officials, scientific organizations, and other interested parties and asked that they comment. We requested comments and any additional data and information that might assist us in making a final decision on our proposal to list Lepidium papilliferum. During 120 nonconsecutive days of open comment periods in 2002, we received input from 39 commenters. Six commenters submitted duplicate comments, either by submitting a written comment and also testifying at a hearing, or by testifying at two separate hearings. Each of these duplicate comments was tallied only once. Of the 39 unique comments, 26 opposed the listing action, 9 were supportive, and 4 indicated no preference. Comments were received from Federal, State, and county agencies and government offices, industry and environmental organizations, researchers, and private citizens.

Another public comment period was opened for 30 days from July 18, 2003, to August 18, 2003, during the 6month extension of the deadline for our final determination (68 FR 42666). Due to substantial disagreement among interested parties over the sufficiency or accuracy of our available data on L. papilliferum, we solicited comments on biological, commercial trade, or other relevant data concerning any threat (or lack thereof) to this species; the location of any additional populations; additional information concerning the range, distribution, and population size of the species; and current or planned activities within the range of the species and the possible impacts on the species.

We prepared a summary document entitled, ``Primary Issues of Disagreement Regarding the Status and Threats to Lepidium
papilliferum,'' and distributed it to 25 experts identified by the Service, BLM, Air Force, and OSC including the 12 peer reviewers discussed herein who were asked for comments on the proposed rule and made it available to the public on our website. The 25 experts were identified
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upon our request to the State of Idaho, BLM, and Air Force and included the peer reviewers for the proposed rule of July 2002. The purpose of this document was to provide the public with information we had about the issues of scientific disagreement that were identified and to request that reviewers provide us with any additional data, information, and comments relevant to the issues, especially information pertaining to potential threats to the species and their relationship to the status, distribution, and likely survival of the species.

Peer Review

In accordance with our July 1, 1994, Interagency Cooperative Policy on Peer Review (59 FR 34270), we requested the expert opinions of 12 independent specialists regarding pertinent scientific or commercial data and assumptions relating to supportive biological and ecological information 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 requested to review the proposed rule were selected on the basis of their expertise on Lepidium 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. Five of the 12 scientific reviewers provided us comments during the initial peer review process. All five provided information meant to correct, clarify, or support statements contained in the proposed rule. We have incorporated their comments into the final determination, as appropriate.

Some of the comments received during the public comment periods suggested that the proposed rule inappropriately extrapolated beyond the limited data available and thus drew unsupported, possibly erroneous conclusions about the effects of various environmental factors. Additionally, the Service accepted scientific review comments from the Air Force. The Air Force comments were a compilation of reviews conducted by five Ph.D. scientists and one research agronomist. The Air Force comments raised substantial concerns about the certainty of the information we had relied upon to propose the species as endangered. In addition, the Department of Defense filed an Information Quality Act petition challenging the Service's use and interpretation of available information used in the proposed rule. Information focusing specifically on Lepidium papilliferum is limited to surveys, unpublished reports, and a few publications in regional journals. Data are lacking from which to draw strong inferences about population trends across the entire range. On the other hand, a large body of scientific information documents the changing community ecology of the sagebrush steppe ecosystem, in which L. papilliferum is endemic. It is reasonable, therefore, to assess the risk of L. papilliferum extinction from the threat of these ecosystem changes. After reviewing all comments received we determined that it would be appropriate to reevaluate the level of risk faced by L. papilliferum. Thus, on July 18, 2003, we published a notice explaining that we would take six months, in accordance with section 4(b)(6)(B)(i) of the Act, to collect new information and reassess the status of the species.

At issue were the likelihood of Lepidium papilliferum becoming extinct and the process of assessing this extinction risk given the limited information available on the species. We decided to perform a risk analysis through structured solicitation of expert opinion as another resource to use in our final determination process. We convened a panel of six experts in plant community ecology, L. papilliferum ecology, plant population biology, range management and livestock behavior to participate to participate in this facilitated assessment of risk.

The experts participated only in a biological assessment of extinction risk. Following the biological panel, the Service held a session, attended exclusively by Service employees, to assess whether Lepidium papilliferum meets the definition of threatened or endangered under the Act. The Service's assessment used all available information on record including, but not limited to, the biological risk assessment which did not introduce any new information but rather focused on the major threat factors previously discussed in the proposed rule, and extinction risk for L. papilliferum.

During the risk assessment we asked each expert to analyze risk to Lepidium papilliferum under two hypothetical futures, one with continuation of status quo management and one with revised management as described in the INRMPs and conservation agreement. The panel participated in a series of facilitated exercises and discussions that addressed factors that affect L. papilliferum and the level of certainty of knowledge about the occurrence and biological consequences of these factors. At the conclusion of the analyses under the two hypothetical futures the experts described gaps in knowledge and other areas of uncertainty, which, if resolved, could influence the distribution or reduce variance in their estimates of extinction risk.

Finally, panelists discussed ongoing and hypothetical research programs that could resolve some of the uncertainty about what the future holds for Lepidium papilliferum. In some cases, rough experimental designs, costs, and times for completion were discussed and recorded.

In one exercise the panelists evaluated the various threat factors. Nonnative annual grasses and the related effects of fire were, by far, the most important extinction factors. Other relatively highranking threats were livestock, drillseeding and the forage species planted in fire rehabilitation, and vehicles. Other factors such as the herbicides used in fire rehabilitation, climate variables, and herbivory were less important. While there has been no previous attempt to rank these factors, the rankings more or less conform to the levels of emphasis placed on these factors in the proposed rule.

The expert's estimates of risk also conform to the Service's conclusion that, over the next few decades, the likelihood of extinction is more probable for Lepidium papilliferum without the proposed conservation measures.

Comments and Our Responses

We received 32 comments from Federal, State, and county agencies and government offices, industry and environmental organizations, researchers, and private citizens. These comments are summarized with the other public comments in the comments section. We assembled these comments and other new information we had received in a document entitled ``Best Available Information on Lepidium pappilliferum.'' A notice of availability for this document was published in the Federal Register on October 30, 2003. Comments received on this document have also been summarized with the other public comments and changes have been incorporated within this final determination.

This final determination reflects the comments and information we received during the three public comment periods on the proposed listing rule, and the one comment period on the ``Best Available Information on Lepidium papilliferum'' document. Since comments were solicited on two
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different documents, they will be summarized separately. For all public comments received, substantive comments and new information were either incorporated into or addressed directly in the final determination, where appropriate, or have been addressed below. Comments are grouped together by issue below for the purpose of this summary, along with our response to each.
Comments on the Proposed Rule and ``Primary Issues of Disagreement Regarding the Status and Threats of Lepidium Papilliferum''

Issue 1: Several commenters, including the Idaho Transportation Department (ITD), were concerned that listing and designation of critical habitat for Lepidium papilliferum under the Act would threaten family ranching by restricting use of public and private lands, and could ultimately impact local economies. A few commenters inquired whether the economic impact of listing Lepidium papilliferum or its critical habitat had been analyzed. Several commenters, including the OSC, were concerned that the processes associated with listing species under the Act would impact efforts to conduct research and hinder management of the sagebrushsteppe ecosystem (e.g., fire suppression, range management, and fire rehabilitation). Others opposed using the Act to acquire private property for conservation of the species.

Our Response: The listing of Lepidium papilliferum as an endangered or threatened species would result in regulatory protections for the plant on federally managed lands, but would not likely lead to greater or increased restrictions on privately owned property. For endangered plant species, section 9 of the Act provides prohibitions from activities that ``remove, cut, dig up, or damage or destroy any [endangered plant] species'' in knowing violation of any law or regulation of any state or in the course of any violation of a state criminal trespass law.'' Because our current action is to withdraw the proposal to list the species as endangered, these provisions of section 9 and concerns regarding economic and other impacts are not applicable. In any event, the Act prohibits us from considering economic impacts in listing determinations, so we have excluded economic consideration from this determination.

Issue 2: Several commenters stated that the management of Lepidium papilliferum on public lands is politically influenced, and the only alternative to ensure the conservation of the species is to list it under the Act. Additionally, several commenters, including the Air Force, Idaho Office of Attorney General (OAG), OSC, and ITD suggested that our listing process was not based on the best available scientific information, and that there is inadequate data to indicate that listing L. papilliferum is warranted. One commenter stated that our use of some references does not meet definition of transparency in our Information Quality Guidelines (44 U.S.C. 3502, 67 FR 8452; February 22, 2002) and, therefore, these references should not be used to justify listing of the species. Some commenters, including the OAG, believed that opportunities for public involvement in the listing process had been inadequate. Finally, some commenters asserted that the information gathered through the process associated with the Air Force appeal under the Data Quality Act should be made available to the public.

Our Response: The Act requires us to make listing decisions based solely on the best scientific and commercial information available at the time the decision is being made (section 4(b)(1)(A)). We thoroughly reviewed all available scientific and commercial data in preparing the proposed and final listing determination. We sought and reviewed historical and recent publications and unpublished reports concerning Lepidium papilliferum and sagebrushsteppe habitat of southwestern Idaho. We also convened a panel of scientific experts to review the scientific information available to us pertaining to L. papilliferum. Finally, we produced the document ``Best Available Information on Lepidium papilliferum'' and solicited public comment on additional scientific information pertaining to the species. We followed our Information Quality Guidelines in preparing this final determination.

Our evaluation of the significance of these numerous ongoing threats across the range of L. papilliferum is discussed in the ``Summary of Factors Affecting the Species'' section of this final determination. This analysis includes looking at the adequacy of existing regulatory mechanisms, including public land management practices. During the listing process, we provided three public comment periods that were open for a total of 150 nonconsecutive days, and also held two public hearings so that the public would have an adequate opportunity to provide us comments on our proposal to list the species.

We have received new information since the proposed rule specific to Lepidium papilliferum. This information ranged from additional ICDC survey data to slickspot soils information. While the body of available information specific to this species is limited, we have a legal obligation to make a final listing determination and we must act based on the best available information.

Issue 3: Some commenters, including ITD, said past survey efforts did not provide adequate population and range data to support a listing decision for Lepidium papilliferum, while others thought past survey efforts were adequate. Some commenters questioned the validity of the methodologies used for L. papilliferum surveys, and a few asserted that further research is needed before a listing determination can be made. One commenter indicated that ICDC data documents an 84 percent increase in L. papilliferum occurrences since 1994 in spite of alleged threats, weakening the case for listing the species. Comments, including those from the OSC, noted that a comprehensive inventory of L. papilliferum throughout its range has never been conducted; that there are significant amounts of potential habitat on private and State lands that have not been inventoried; and that there appears to be sampling bias in that most occurrences are near roads. Others commented that despite the numerous L. papilliferum surveys conducted throughout most of the species' range, and the discovery of a few new sites, the known range of L. papilliferum has not been expanded.

Our Response: As discussed in Issue 2 above, the Act requires us to make listing decisions based solely on the best scientific and commercial information available at the time the decision is being made (section 4(b)(1)(A)). We thoroughly reviewed all available scientific and commercial data in preparing the proposed rule and this final listing determination. We sought and reviewed historical and recent publications and unpublished reports concerning Lepidium papilliferum and sagebrushsteppe habitat of southwestern Idaho. We agree that undiscovered sites occupied by Lepidium papilliferum likely exist and there may be other areas where L. papilliferum and suitable habitat may occur. For example, inventories for L. papilliferum have not been completed on the majority of private lands within its range due to restricted access to these areas. We must base our status review for L. papilliferum not only on the plant's current known population status, but also the known condition of its habitat and on the current factors affecting the species, along with ongoing conservation efforts, as described in the
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Summary of Factors Affecting the Species section of this final determination.

Increased survey efforts by ICDC and BLM since Moseley produced his 1994 status review have resulted in an increase in the number of known Lepidium papilliferum occurrences and total habitat acreage (Moseley 1994; ICDC 2003). A total of 36 occurrences with a cumulative area of 10,251 ac (4,148 ha) have been located between 1995 and present, essentially doubling the 1994 documented occupied area. However, these survey efforts did not result in an expansion of the currently known range of the species. Approximately 8,971 ac (3,630 ha) (87 percent) of this 10,251ac (4,148ha) increase in L. papilliferumoccupied habitat represent the location of a single large occurrence on the Air Force's Juniper Butte ETR. In addition, 24 of these 36 recently discovered occurrences (67 percent) are less than 20 ac (8 ha) in size, and only 3 of the 36 occurrences (8 percent) are greater than 100 ac (40 ha) in size.

Surveys for species such as Lepidium papilliferum are conducted according to agency survey methodologies for special interest species developed for inventories of large blocks of land. We have expanded and clarified the discussion of the monitoring survey protocol utilized by the ICDC in the Background section of this final determination. In addition, BLM conducts extensive sitespecific botanical surveys for proposed management projects. While roads may have been used as part of the methodology for some L. papilliferum inventories, the use of roads in surveys is not a standard survey procedure in all situations. For example, Popovich (2002) surveyed over 52,300 ac (21,165 ha) of BLM land for L. papilliferum using linear 1milong (1.6kmlong) transects located 0.25 mi (0.40 km) apart that were independent of the location of roads in the Inside Desert.

We agree that further research and continued surveys and monitoring will provide additional information to benefit management of this species. The CCA and the two INRMPs provide for this important future work to be accomplished. Although there is some disagreement as to the accuracy of some L. papillliferum locations and the current information regarding the total occupied range of L. papilliferum is incomplete, we believe we have sufficient information to support our determination not to list the species at this time.

Issue 4: Some commenters suggested that, rather than listing, that an alternative course of action be used for conservation of the species. Several commenters, including the OSC, thought Federal land management agencies are currently managing the land to conserve Lepidium papilliferum through regulatory and mitigation efforts to minimize significant impacts from management activities, while others questioned the adequacy of current land management practices to conserve the species. Suggestions, including those made by the OSC, for alternative courses of action included: (1) Development of a L. papilliferum conservation strategy by us in collaboration with other agencies and stakeholders in lieu of listing; (2) development of best management practices for L. papilliferum; and (3) delaying listing until additional research, inventories, and conservation efforts can be implemented. The OSC also questioned why we discontinued our participation in the development of a conservation agreement with IDARNG and BLM for L. papilliferum in 1997. During the third comment period, some commenters stated that a conservation agreement would allow agencies to gain further knowledge about L. papilliferum, while other commenters stated that a conservation agreement would not constitute an effective tool of conservation of the species.

Our Response: We strongly support utilizing a collaborative conservation effort to address the threats to species such that the need to list them is precluded. Prior to the July 18, 2003, 6month extension, we worked with various agencies and individuals to assess the status of Lepidium papilliferum, and also to identify and implement conservation actions. Since February 2000, we have been an active participant in an interagency group of biologists and stakeholders to share data and coordinate conservation actions for L. papilliferum.

This species is already afforded some level of protection due to the fact that the majority of known Lepidium papilliferum occurrences are either completely or partially on Federal land managed primarily by the BLM and Air Force, and 91 percent of the total area of occupied L. papilliferum habitat is located on Federal land. While some Federal land management practices include measures that promote conservation of L. papilliferum, other management practices and activities may affect its persistence (see Summary of Factors Affecting the Species section).

We began working with IDARNG and BLM in 1996 and 1997 to develop a conservation strategy for Lepidium papilliferum on BLM lands, a portion of which is used by IDARNG for military training activities (OTA). We had to suspend our participation with respect to this agreement for the OTA in 1997 due to budget shortfalls and staff restructuring. A conservation agreement was drafted but never finalized. We have been working with BLM and IDARNG actively since 1997 to manage and conserve L. papilliferum. IDARNG, BLM, and the Service have been active members of the L. papilliferum interagency technical team, which has met 22 times between January 2000 and December 2003.

We believe the development of conservation agreements for Lepidium papilliferum that address threats and implement conservation actions for the species can provide significant and immediate benefits to the species, thus precluding the need to list. From July 2003 through December 2003, we provided technical assistance on policy and science issues in an advisory capacity to several partner agencies and affected private individuals in their development of the CCA for L. papilliferum. This CCA has research and adaptive management components that will improve our understanding of L. papilliferum ecology and conservation needs. We believe the implementation of the CCA and the Air Force and IDARNG INRMPs adequately conserves L. papilliferum and precludes the need to list the species.

Issue 5: A few commenters disagreed with our statement in the proposed rule that the designation of critical habitat could delay publication of the final determination listing the species if they were done concurrently. The commenters asserted that much of the analysis needed to draft a critical habitat proposal had already been completed. Several commenters even identified specific areas that should be included in a critical habitat designation. Additionally, commenters provided input on species' conservation criteria for consideration in the recovery planning and critical h

FOR FURTHER INFORMATION CONTACT Jeff Foss, Field Supervisor, Snake River Fish and Wildlife Office (see ADDRESSES section) (telephone 208/ 3785243; facsimile 208/3785262).