[Federal Register Volume 75, Number 40 (Tuesday, March 2, 2010)]
[Proposed Rules]
[Pages 9377-9379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4071]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R8-ES-2010-0008]
[MO 92210-0-0008-B2]
[RIN 1018-AX07]


Endangered and Threatened Wildlife and Plants; Listing the Flat-
Tailed Horned Lizard as Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Reinstatement of proposed rule, reopening of comment period, 
and notice of public hearings.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), notify the 
public of the reinstatement of our November 29, 1993, proposed rule to 
list the flat-tailed horned lizard (Phrynosoma mcallii) as threatened 
under the Endangered Species Act of 1973, as amended (Act). We also 
announce the reopening of a public comment period on the 1993 proposed 
rule and the scheduling of public hearings. This action will provide 
all interested parties with an additional opportunity to provide 
information and submit comments on the 1993 proposed rule.

DATES: Written comments: To ensure consideration of your comments, we 
must receive them on or before May 3, 2010.
    Public Hearings: The public hearings will take place on March 23, 
2010, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. at University of 
California, Riverside (UCR) Palm Desert Graduate Center, 75-080 Frank 
Sinatra Drive,

[[Page 9378]]

Palm Desert, CA, and on March 24, 2010, from 1 p.m. to 3 p.m. and from 
6 p.m. to 8 p.m. at the Radisson Hotel Yuma, 1501 South Redondo Center 
Drive, Yuma, AZ.

ADDRESSES: Written comments: You may submit comments and information by 
one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Search for Docket No. FWS-R8-ES-2010-0008 and then follow the 
instructions for submitting comments.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R8-ES-2010-0008; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.
    Public Hearings: The public hearings will be held at the University 
of California, Riverside (UCR) Palm Desert Graduate Center, 75-080 
Frank Sinatra Drive, Palm Desert, CA 92211, and at the Radisson Hotel 
Yuma, 1501 South Redondo Center Drive, Yuma, AZ 85365.
    We will post all comments and information we receive in writing and 
oral testimony offered at the public hearings on http://www.regulations.gov. This generally means that we will post any 
personal information you provide us (see the Information Solicited 
section below for more information).

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-
9440; facsimile 760-431-5901. If you use a telecommunications device 
for the deaf (TDD), call the Federal Information Relay Service (FIRS) 
at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Information Solicited

    This document announces the reinstatement of the 1993 proposed 
rule, published in the Federal Register on November 29, 1993 (58 FR 
62624), to list the flat-tailed horned lizard as a threatened species, 
and reopens the public comment period on this reinstated rulemaking. We 
intend any final action resulting from this proposal to be as accurate 
as possible. To ensure our determination is based on the best available 
scientific and commercial information, we request information on the 
flat-tailed horned lizard from governmental agencies, Native American 
Tribes, the scientific community, industry, and any other interested 
parties. We particularly seek information on:
    (1) The species' biology, range, and population trends.
     (2) Past and ongoing conservation measures for the species, its 
habitat, or both, including how implementation of the Flat-tailed 
Horned Lizard Rangewide Management Strategy has affected the species in 
the United States.
     (3) Conservation measures for the species in Mexico.
    (4) The factors that are the basis for making a listing, delisting, 
or downlisting determination for a species under section 4(a) of the 
Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et 
seq.), which are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
     (5) The taxonomic status of this species, or whether any 
population segments of the flat-tailed horned lizard are discrete or 
significant under our February 7, 1996, policy regarding the 
recognition of distinct vertebrate population segments (61 FR 4722).
     (6) The potential effects global climate change may have on the 
flat-tailed horned lizard or its habitat.
    You may submit your information concerning the proposed rule by one 
of the methods listed in the ADDRESSES section. If you submit 
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the 
website. If you submit a hardcopy that includes personal identifying 
information, you may request at the top of your document that we 
withhold this personal identifying 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.
    Information and materials we receive, as well as supporting 
documentation we used in preparing previous listing determinations for 
the species, 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, Carlsbad Fish and Wildlife 
Office (see FOR FURTHER INFORMATION CONTACT). If you submitted comments 
or information previously on the proposed rule or during any of the 
previous open comment periods related to this proposed rule, please do 
not resubmit them. These comments have been incorporated into the 
public record and will be fully considered in the preparation of our 
final determination.

Public Hearings

    We have scheduled two public hearings on the proposed rule. They 
will be held on the date listed in the DATES section at the address 
listed in the ADDRESSES section.
    Anyone wishing to make an oral statement at a public hearing for 
the record is encouraged to provide a written copy of their statement 
to us at that hearing. In the event there is a large attendance, the 
time allotted for oral statements may be limited. Speakers can sign up 
only at the hearings. Oral and written statements receive equal 
consideration. There are no limits on the length of written comments 
submitted to us. If you have any questions concerning the public 
hearing or need reasonable accommodations to attend and participate in 
the public hearing, please contact the person listed in the FOR FURTHER 
INFORMATION CONTACT section as soon as possible, but no later than 1 
week before the hearing date, to allow sufficient time to process 
requests.

Previous Federal Actions

    On November 29, 1993, we published in the Federal Register a 
proposed rule to list the flat-tailed horned lizard as a threatened 
species under the Act (58 FR 62624). On July 15, 1997, we published in 
the Federal Register a final determination to withdraw the proposed 
rule to list the flat-tailed horned lizard as a threatened species (62 
FR 37852) based on various considerations including a reduction of 
threats to the species on public land and the existence of the Flat-
tailed Horned Lizard Rangewide Management Strategy.
    The Defenders of Wildlife filed a complaint in the U.S. District 
Court for the Southern District of California challenging our 1997 
withdrawal of the proposed rule. On June 16, 1999, the District Court 
upheld our decision to withdraw the proposed listing rule. The District 
Court's decision was appealed and on July 31, 2001, and the Ninth 
Circuit Court of Appeals vacated the previous ruling of the District 
Court. In accordance with the Appeals Court's ruling, we published a 
document in the Federal Register on December 26, 2001, reinstating the 
1993 proposed rule and opening a 120-day public comment period (66 FR 
66384).
    Subsequently, we reopened the comment period on the 1993 proposed 
rule twice, once on May 30, 2002 (67 FR 37752) and again on September 
24, 2002 (67 FR 59809).

[[Page 9379]]

    On January 3, 2003, we again published in the Federal Register a 
decision to withdraw the November 29, 1993, proposed rule to list the 
flat-tailed horned lizard as a threatened species (68 FR 331). The 
Service found the lizard to be in danger of extirpation in the 
Coachella Valley; however, we determined that the Coachella Valley is 
not a significant portion of the species' range. We concluded in the 
January 3, 2003, withdrawal that the flat-tailed horned lizard 
populations on either side of the Imperial Valley/Salton Sea and in 
Arizona were not likely to become endangered in the foreseeable future 
and that listing the species was not warranted.
    The Tucson Herpetological Society and others filed a complaint with 
the District Court for the District of Arizona challenging the January 
3, 2003, withdrawal of the proposed rule. In a ruling issued on August 
30, 2005, the District Court for the District of Arizona issued an 
order granting plaintiffs' motion for summary judgment, citing our 
failure to specifically evaluate the lost habitat of the flat-tailed 
horned lizard, and whether the amount of lost habitat represented a 
significant portion of the species' range. On December 7, 2005, we 
published a document in the Federal Register reinstating the 1993 
proposed rule (70 FR 72776). On March 2, 2006, we reopened the public 
comment period on the 1993 proposed rule for the purpose of soliciting 
comments and information relevant to the specific issue identified in 
the District Court's November 2005 ruling (i.e., whether the flat-
tailed horned lizard's lost historical habitat rendered the species 
likely to become in danger of extinction in the foreseeable future 
throughout all or a significant portion of its range) (71 FR 10631). We 
reopened an additional public comment period on the 2006 Federal 
Register notice from April 21, 2006, to May 8, 2006 (71 FR 20637).
    After re-examining the lost historical habitat of the flat-tailed 
horned lizard in relation to our January 3, 2003, withdrawal, we 
determined that the lost historical habitat is not a significant 
portion of the species' range, and its loss does not result in the 
species likely becoming endangered in the foreseeable future throughout 
all or a significant portion of its range. We published our decision to 
once again withdraw the November 29, 1993, proposed rule to list the 
flat-tailed horned lizard as a threatened species on June 28, 2006 (71 
FR 36745).
    Following a supplemental complaint from Tucson Herpetological 
Society and others challenging the 2006 withdrawal of the proposed rule 
to list the flat-tailed horned lizard under the Act, the United States 
District Court for the District of Arizona (the District Court) granted 
summary judgment in favor of the Secretary of the Interior; however, 
this ruling was appealed to the Court of Appeals for the Ninth Circuit. 
In a ruling issued on May 18, 2009, the Court of Appeals for the Ninth 
Circuit reversed the District Court's ruling when it determined that in 
the context of the analysis of whether the lizard's lost historical 
range constituted a significant portion of the species' range, the 
administrative record did not support what the Court of Appeals for the 
Ninth Circuit viewed as the Service's conclusion that flat-tailed 
horned lizard populations were stable and viable throughout most of its 
current range.
    On November 3, 2009, the District Court remanded the 2006 
withdrawal to the Service for further consideration and reinstated the 
1993 proposal to list the species. The District Court ordered the 
Service to complete this reconsideration within 12 months. The Service 
will complete its review of the best available scientific and 
commercial information, including information and comments submitted 
during this comment period, as part of the remand process. We will then 
complete a new listing determination. This document serves to notify 
the public of the reinstatement of the 1993 proposed rule, announce 
public hearings, and solicit information regarding the species and 
threats to it and its habitat.
    You may obtain copies of the original 1993 proposed rule, and other 
previous Federal actions relating to the flat-tailed horned lizard by 
mail from the Carlsbad Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT section), or on the Internet at http://www.fws.gov/Carlsbad, or by visiting the Federal eRulemaking Portal at http://www.regulations.gov.

Author

    The primary authors of this notice are the staff members of the 
Carlsbad 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: February 17, 2010.
Daniel M. Ashe,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-4071 Filed 3-1- 10; 8:45 am]
BILLING CODE 4310-55-S