        DEPARTMENT OF TRANSPORTATION
        Federal Motor Carrier Safety Administration
        49 CFR Part 395
        [Docket No. FMCSA-2018-0248]
        RIN 2126-AC19
        Hours of Service

          AGENCY:
          Federal Motor Carrier Safety Administration (FMCSA), DOT.

          ACTION:
          Notice of public listening session.

          SUMMARY:
          The FMCSA announces that it will hold a public listening session concerning potential changes to its hours-of-service (HOS) rules for truck drivers. On August 23, 2018, FMCSA published an Advance Notice of Proposed Rulemaking (ANPRM) seeking public comment on four specific aspects of the HOS rules for which the Agency is considering changes: The short-haul HOS limit; the HOS exception for adverse driving conditions; the 30-minute rest break provision; and the split-sleeper berth rule to allow drivers to split their required time in the sleeper berth. In addition, the Agency requested public comment on petitions for rulemaking from the Owner-Operator Independent Drivers Association (OOIDA) and TruckerNation.org (TruckerNation). The Agency encourages vendors of electronic logging devices (ELDs) to participate to address potential implementation issues should changes to the HOS rules be made. The listening session will be held at the U.S. Department of Transportation in Washington, DC. The listening session will be webcast for the benefit of those not able to attend in person. The listening session will allow interested persons to present comments, views, and relevant research on topics mentioned above. All comments will be transcribed and placed in the rulemaking docket for the FMCSA's consideration.

          DATES:
          The listening session will be September 14, 2018, in Washington, DC, at the U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590. The listening session will begin at 1 p.m. (EDT) and end at 3 p.m., or earlier, if all participants wishing to express their views have done so.

          ADDRESSES:
          The September 14, 2018, meeting will be held at the U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590.
          You may submit comments identified by Docket Number FMCSA-2018-0248 using any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.
          • Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001.
          • Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
          • Fax: 202-493-2251.
          • Submissions Containing Confidential Business Information (CBI): Mr. Brian Dahlin, Chief, Regulatory Analysis Division, 1200 New Jersey Avenue SE, Washington, DC 20590.

          To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for instructions on submitting comments, including collection of information comments for the Office of Information and Regulatory Affairs, OMB.

          FOR FURTHER INFORMATION CONTACT:

          For special accommodations for the HOS listening session, such as sign language interpretation, contact Ms. Shannon L. Watson, Senior Advisor to the Associate Administrator for Policy, (202) 385-2395 or at shannon.watson@dot.gov, by Wednesday, September 5, 2018, to allow us to arrange for such services. There is no guarantee that interpreter services requested on short notice can be provided. For information concerning the HOS rules, contact Mr. Tom Yager, Chief, Driver and Carrier Operations Division, (202) 366-4325, mcpsd@dot.gov.

        SUPPLEMENTARY INFORMATION:
        I. Public Participation and Request for Comments
        A. Submitting Comments
        If you submit a comment, please include the docket number for this ANPRM (Docket No. FMCSA-2018-0248), indicate the specific section of this document to which each section applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
        To submit your comment online, go to http://www.regulations.gov, put the docket number, FMCSA-2018-0248, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.
        If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.
        FMCSA will consider all comments and material received during the comment period for the ANPRM. Late comments will be considered to the extent practicable.
        Confidential Business Information

        Confidential Business Information (CBI) is commercial or financial information that is customarily not made available to the public by the submitter. Under the Freedom of Information Act, CBI is eligible for protection from public disclosure. If you have CBI that is relevant or responsive to the ANPRM and this listening session, it is important that you clearly designate the submitted comments as CBI. Accordingly, please mark each page of your submission as “confidential” or “CBI.” Submissions designated as CBI and meeting the definition noted above will not be placed in the public docket for the ANPRM and this listening session. Submissions containing CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory Analysis Division, 1200 New Jersey Avenue SE, Washington, DC 20590 or brian.dahlin@dot.gov. Any commentary that FMCSA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
        FMCSA will consider all comments and material received during the comment period for the ANPRM.
        B. Viewing Comments and Documents

        To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2018-0248, in the keyword box, and click “Search.” Next, click the “Open Docket Folder” button and choose the document to review. If you do not have access to the internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.
        C. Privacy Act

        In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

        II. Background
        On August 23, 2018 (83 FR 42631), FMCSA published an ANPRM concerning potential changes to its hours-of-service rules. The ANPRM indicated the Agency is considering changes in four areas of the HOS rules: The short-haul HOS limit [49 CFR 395.1(e)(1)(ii)(A)]; the HOS exception for adverse driving conditions [§ 395.1(b)(1)]; the 30-minute rest break provision [§ 395.3(a)(3)(ii)]; and the split-sleeper berth rule to allow drivers to split their required time in the sleeper berth [§ 395.1(g)(1)(i)(A) and (ii)(A)]. In addition, the Agency requested public comment on petitions for rulemaking from the Owner-Operator Independent Drivers Association (OOIDA) and TruckerNation.org (TruckerNation). The ANPRM provides an opportunity for additional discussion of each of these topics. The listening session will provide interested persons to share their views on these topics with representatives of the Agency. The Agency encourages ELD vendors to participate to address potential implementation issues should changes to the HOS rules be made.
        III. Meeting Participation

        The listening session is open to the public. Speakers' remarks will be limited to 2 minutes each. The public may submit material to the FMCSA staff at the session for inclusion in the public docket, FMCSA-2018-0248. The session will be webcast in its entirety, providing the opportunity for remote participation via the internet. For information on participating in the live webcast, please go to www.fmcsa.dot.gov.

        IV. Questions for Discussion During the Listening Session
        In preparing their comments, meeting participants should consider the questions posed in the ANPRM about the current HOS requirements. Answers to these questions should be based upon the experience of the participants and any data or information they can share with FMCSA.

          Issued on: August 30, 2018.
          Raymond P. Martinez,
          Administrator.

      [FR Doc. 2018-19255 Filed 9-5-18; 8:45 am]
      BILLING CODE 4910-EX-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 63
        [VA001-1001b; FRL-7648-5]
        Approval of Section 112(l) Authority for Hazardous Air Pollutants; Equivalency by Permit Provisions; National Emission Standards for Hazardous Air Pollutants From the Pulp and Paper Industry; Commonwealth of Virginia

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          The EPA is proposing to approve a request from the Commonwealth of Virginia's Department of Environmental Quality (DEQ) for authority to implement and enforce State permit terms and conditions in place of those of the National Emission Standards for Hazardous Air Pollutants (NESHAP) for the Pulp and Paper Industry, with respect to the operations of International Paper Company's Franklin Mill, located in Franklin, Virginia. Thus, the EPA is proposing to grant the Virginia DEQ the authority to implement and enforce alternative requirements in the form of Clean Air Act (CAA) Title V permit terms and conditions after EPA has approved the State's alternative requirements. In the Final Rules section of this Federal Register, EPA is approving the State's submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

          DATES:
          Comments must be received in writing by May 6, 2004.

          ADDRESSES:
          Submit your comments, identified by VA001-1001, by one of the following methods:
          A. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
          B. E-mail: Campbell.Dave@epa.gov.
          C. Mail: David J. Campbell, Chief, Permits and Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
          D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. VA001-1001. EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The federal regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

          Copies of all comments should also be sent to the Virginia Department of Environmental Quality, P.O. Box 10009, Richmond, Virginia 23240. Copies of written comments should be sent to John M. Daniel, Jr., Director, Air Division, Virginia Department of Environmental Quality, P.O. Box 10009, Richmond, Virginia 23240. Copies of electronic comments should be sent to jmdaniel@deq.state.va.us. Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; and the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219.

          FOR FURTHER INFORMATION CONTACT:
          Ray Chalmers, (215) 814-2061, or by e-mail at chalmers.ray@epa.gov.

        SUPPLEMENTARY INFORMATION:

        For further information, please see the information provided in the direct final action approving the Virginia DEQ's request for “up-front” approval of an EBP program under which the Virginia DEQ may establish and enforce alternative State requirements for International Paper Company's Franklin Mill in lieu of those of the NESHAP for the Pulp and Paper Industry found at 40 CFR part 63, subpart S, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication.

          Dated: April 6, 2004.
          Thomas Voltaggio,
          Acting Regional Administrator, Region III.

      [FR Doc. 04-8582 Filed 4-14-04; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        RIN 0648-AY48
        Fisheries of the Exclusive Economic Zone Off Alaska; Skates Management in the Bering Sea and Aleutian Islands Management Area; Groundfish Annual Catch Limits for the Bering Sea and Aleutian Islands Management Area and Gulf of Alaska

          AGENCY:
           National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notification of availability of fishery management plan amendments; request for comments.

          SUMMARY:
           The North Pacific Fishery Management Council submitted Amendments 95 and 96 to the Fishery Management Plan (FMP) for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI)-as well as Amendment 87 to the FMP for Groundfish of the Gulf of Alaska (GOA)-to NMFS for review. If approved, Amendment 95 would move skates from the other species category to the target species category in the FMP for Groundfish of the BSAI. Amendments 96 and 87 would revise the FMPs to meet the National Standard 1 guidelines for annual catch limits and accountability measures. These amendments would move all remaining species groups from the “other species” category to the “target species” category, remove the “other species” category from the FMPs, establish an ecosystem component category, and describe the current practices for groundfish fisheries management in the FMPs, as required by the guidelines. This action is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the FMPs and other applicable laws.

          DATES:
           Comments on Amendments 95, 96, and 87 must be received by August 31, 2010.

          ADDRESSES:
           Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian. You may submit comments, identified by RIN 0648-AY48, by any one of the following methods:

          • Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal at http://www.regulations.gov.
          • Mail: P.O. Box 21668, Juneau, AK 99802.
          • Fax: (907) 586-7557.
          • Hand delivery to the Federal Building: 709 West 9th Street, Room 420A, Juneau, AK.

          All comments received are a part of the public record. No comments will be posted to http://www.regulations.gov for public viewing until after the comment period has closed. Comments will generally be posted without change. All Personal Identifying Information (for example, name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.
          NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

          Electronic copies of Amendments 95, 96, and 87 to the FMPs, the Environmental Assessments (EAs), and the Regulatory Impact Review (RIR) prepared for this action are available from the Alaska Region NMFS website at http://www.alaskafisheries.noaa.gov.

          FOR FURTHER INFORMATION CONTACT:
           Melanie Brown, 907-586-7228.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment. This notice announces that proposed Amendments 95, 96, and 87 to the FMPs are available for public review and comment.
        Amendment 95 was unanimously adopted by the Council in October 2009. If approved by the Secretary, this amendment would move the skates group from the “other species” category to the “target species” list in the BSAI, allowing the management of skates as a target species complex or as individual skates species. The FMP currently provides for setting harvest specifications either for a complex of several species or for each individual species within the “target species” group through the stock assessment and Council process, allowing for fishery management of individual species. The FMP currently provides for setting harvest specifications that apply to all species identified in the “other species” category in the aggregate. NMFS trawl survey and catch information show that 15 skate species occur in the BSAI. In the Bering Sea, the most abundant species is the Alaska skate, while in the Aleutian Islands the most abundant species is the whiteblotched skate.
        Amendments 96 and 87 wereunanimously adopted by the Council in April 2010. If approved by the Secretary, these amendments would revise the FMPs to meet the Magnuson-Stevens Act requirements to establish annual catch limits (ACLs) and accountability measures (AMs) and conform to the National Standard 1 (NS1) guidelines (74 FR 3178, January 16, 2009). The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (MSRA), which was signed into law on January 12, 2007, included new requirements regarding ACLs and AMs, which reinforce existing requirements to prevent overfishing and rebuild fisheries. NMFS revised the NS1 guidelines at 50 CFR 600.310 to integrate these new requirements with existing provisions related to overfishing, rebuilding overfished stocks, and achieving optimum yield. Section 104(a)(10) of the MSRA, codified as section 303(a)(15) of the Magnuson-Stevens Act, requires FMPs to establish mechanisms for specifying ACLs, including AMs. The provision states that FMPs shall “establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.” ACLs and AMs are required by fishing year 2011 in fisheries where overfishing is not occurring. None of the Alaska groundfish fisheries have overfishing occurring, and therefore the groundfish ACLs and AMs must be implemented by January 1, 2011.

        Skate, shark, sculpin, and octopus groups are currently managed as a complex in the “other species” category in the BSAI. In the GOA, shark, sculpin, octopus, and squid groups are currently managed as a complex in the “other species” category. Each year, the overfishing limit (OFL), acceptable biological catch (ABC), and total allowable catch (TAC) are specified for the “other species” category as a whole in each management area. National Standard 1 guidelines require species managed in a stock complex to have similar life histories, but the current “other species” category combines the management of short-lived invertebrates (squids and octopuses) with long-lived fish (sharks and skates).
        If approved, Amendment 95 would move BSAI skates from the “other species” category to the “target species” category and require annual specification of OFL, ABC, and TAC for the skate group as a whole or for individual skate species. Amendments 96 and 87 would remove the remaining species groups from the “other species” categories in each FMP and place these groups in the “target species” category. The “other species” category would be removed from the FMPs. Managing skates, sculpins, sharks, octopuses, and squids as separate groups or as individual species, each with its own OFL, ABC, ACL, and TAC, would enhance NMFS' ability to control the harvest of these species groups based on the best available scientific information, and would reduce the potential for overfishing these groups. The susceptibility of skates to fishing pressure has been well documented in the EA for Amendment 95 (see ADDRESSES). While no target fishery has been developed yet for groups currently in the “other species” category, without the proposed amendments, the potential exists for the entire “other species” TAC to be taken as the harvest of a single group. Such a harvest could represent an unsustainable level of fishing mortality for that group, even though the harvest may not exceed the aggregate OFL for all groups in the “other species” category. Amendment 63 to the FMP for Groundfish of the GOA was a similar precautionary measure that removed skates from the “other species” category in response to a rapidly developing directed fishery (69 FR 26313, May 12, 2004).
        A retrospective analysis in the EA for Amendments 96 and 87 of past shark and octopus harvest compared to the 2010 ABCs and OFLs showed that potential harvests of these species may exceed ABCs and OFLs without NMFS inseason management to control incidental catch (see ADDRESSES). If the TACs for these groups are insufficient to support a directed fishery, a vessel's harvest of sharks and octopuses would be limited to a maximum retainable amount, representing a percentage of the amount of “target species” harvested by that vessel. If closing directed fishing for sharks and octopuses is not sufficient to prevent reaching the ABCs and OFLs for these groups, NMFS inseason management would use observed catch, fish ticket, and vessel monitoring system data to determine the most effective actions to prevent overfishing and minimize adverse economic impacts to fishing communities, to the extent practicable. Controlling incidental harvests of BSAI and GOA octopuses may require temporary closure of areas of high octopus retention to Pacific cod pot gear vessels. If necessary, BSAI and GOA shark incidental harvest would likely be constrained by temporarily restricting harvesting locations for hook-and-line sablefish and Pacific cod fisheries and the trawl pollock fishery. Because BSAI and GOA octopus may be sold, estimated decreased revenue is $110,000 to $155,000 based on the retrospective harvest and inseason management methods. Increased costs may occur if harvest locations are restricted and fishing operations have to travel further to reach alternative fishing grounds, or if they must fish in areas with lower catch-per-unit of effort (and thus incur increased costs of fishing effort to catch the same amount of fish). Decreased revenues may occur if increased travel or fishing time requirements makes it impossible to catch the same amount of fish in the time available. Decreased revenues also may occur if shifts in fishing activity also make it harder to deliver a quality product.
        Specific changes to the FMPs under Amendments 96 and 87 include:
        • Identifying “target species” as stocks in the fishery and establishing an “ecosystem component” category that is comprised of stocks that are not in the fishery and would contain “prohibited species” and “forage fish” species;
        • Moving the species groups managed in the “other species” category to the “target species” category and eliminating the “other species” category;
        • Removing the “nonspecified species” category; and
        • Providing housekeeping changes that add text to the FMPs to describe:
        • Specification of minimum stock size thresholds (MSSTs) or a reasonable proxy;
        • Measures that are taken if and when a stock drops below MSST;
        • AMs that are employed to prevent ACLs from being exceeded and those that will be triggered if an ACL is exceeded;
        • Ecological factors that are considered by the Council in reducing optimum yield from maximum sustainable yield;
        • How the tier levels for ABC and OFL are based on the scientific knowledge about the stock/complex, the scientific uncertainty in the estimate of OFL, and any other scientific uncertainty; and
        • How the stock assessments account for all catch.
        Details on each of these proposed revisions to the FMPs are contained in the EA and its appendix for Amendments 96 and 87 (see ADDRESSES).

        Public comments are being solicited on proposed Amendments 95, 96, and 87 to the FMPs through the end of the comment period stated (see DATES). NMFS intends to publish in the Federal Register and seek public comment on a proposed rule that partially implements Amendments 95, 96, and 87 following NMFS's evaluation of the proposed rule under the Magnuson-Stevens Act. Public comments on the proposed rule must be received by the end of the comment period on Amendments 95, 96, and 87 in order to be considered in the approval/disapproval decision on these amendments. All comments received by the end of the comment period on Amendments 95, 96, and 87, whether specifically directed to the FMPs or to the proposed rule, will be considered in the approval/disapproval decision on the amendments. To be considered, comments must be received, not just postmarked or otherwise transmitted, by 5 p.m., Alaska time, on the last day of the comment period.

          Authority:
           16 U.S.C. 1801 et seq.

          Dated: June 29, 2010.
          Carrie Selberg,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2010-16197 Filed 7-1-10; 8:45 am]
      BILLING CODE 3510-22-S


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Parts 1 and 25
        [IB Docket No. 11-133; DA 12-573]
        Foreign Ownership Policies

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          In this document, the International Bureau, on behalf of the Commission, seeks further comment on an approach to policies and procedures that apply to foreign ownership of common carrier radio station licensees pursuant to the Communications Act of 1934, as amended (“the Act”). It seeks comment because this approach was not discussed in the Notice of Proposed Rulemaking initiating this docket or in the comments filed to date in response to the Notice of Proposed Rulemaking.

          DATES:
          Comments shall be filed May 15, 2012. Reply comments shall be filed May 25, 2012.

          ADDRESSES:
          All pleadings are to reference IB Docket No. 11-133. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies.

            Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.

            Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
          Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

          All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. The filing hours are 8 a.m. to 7 p.m. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

            People with Disabilities: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (tty).
          In addition, one copy of each pleading must be sent to each of the following:

          (1) The Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, www.bcpiweb.com; telephone: (800) 378-3160, fax: (202) 488-5563;

          (2) James Ball, Chief, Policy Division, International Bureau, 445 12th Street SW., Room 7-A760, Washington, DC 20554; email: james.ball@fcc.gov;

          (3) Howard Griboff, Deputy Chief, Policy Division, International Bureau, 445 12th Street SW., Room 7-A662, Washington, DC 20554; email: howard.griboff@fcc.gov;

          (4) Kathleen Collins, Attorney-Advisor, Policy Division, International Bureau, 445 12th Street SW., Room 7-A515, Washington, DC 20554; email: kathleen.collins@fcc.gov.

          Filings and comments are also available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. They may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563, or via its Web site, http://www.bcpiweb.com.

          This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules, 47 CFR 1.1200 et seq. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule § 1.1206(b). In proceedings governed by rule § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

          FOR FURTHER INFORMATION CONTACT:

          Kathleen Collins, Attorney-Advisor, Policy Division, International Bureau at (202) 418-1474 or kathleen.collins@fcc.gov.

        SUPPLEMENTARY INFORMATION:

        This is a summary of the Commission's Public Notice, DA 12-573, released on April 11, 2012. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The complete text may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563, or via its Web site, http://www.bcpiweb.com. The complete text is also available on the Commission's Web site at http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0411/DA-12-573A1.pdf. To request the document in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).
        In Review of Foreign Ownership Policies for Common Carrier and Aeronautical Radio Licensees under Section 310(b)(4) of the Communications Act of 1934, as Amended, IB Docket No. 11-133, Notice of Proposed Rulemaking, FCC 11-121, 26 FCC Rcd 11703 (2011) (Section 310(b)(4) NPRM), the Commission sought comment on proposals to revise and simplify the policies and procedures that apply to foreign ownership of common carrier and aeronautical radio station licensees pursuant to section 310(b)(4) of the Act. Although the Commission did not specifically seek comment on its policies and procedures relating to section 310(b)(3), several commenters asked the Commission to find that all “indirect” foreign interests in a common carrier licensee should be governed under section 310(b)(4), rather than section 310(b)(3). They are concerned that applying section 310(b)(3) to “indirect” foreign interests in common carrier licensees may limit the flexibility of foreign investors in structuring their investments. Commenters also state that applying section 310(b)(3) to foreign interests in a licensee held through an intervening U.S.-organized entity that does not control the licensee (which commenters term “indirect non-controlling” foreign interests) is inconsistent with the U.S. commitments made in the World Trade Organization (WTO) Basic Telecom Agreement. Commenters state that a determination that section 310(b)(3) does not apply in this situation would be one of the “most helpful actions” the Commission could take to further this proceeding's goals of reducing unnecessary regulatory barriers to foreign investment that can benefit innovation, economic growth, and employment in the United States.
        By this Public Notice, the International Bureau seeks public comment on an approach not specifically raised by the comments to date. In particular, we invite comment on the legal and policy implications of forbearing under section 10 of the Act, 47 U.S.C. 160, from applying section 310(b)(3) to certain foreign interests in common carrier licensees if—contrary to the comments discussed above—section 310(b)(3) is interpreted as applying to foreign interests in a broadcast, common carrier or aeronautical licensee held through an intervening U.S.-organized entity that itself holds non-controlling equity and voting interests in the licensee.1
           Section 10 provides that the Commission shall forbear from applying any regulation or any provision of the Act to a telecommunications carrier if the Commission determines that: (1) Enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory; (2) enforcement of such regulation or provision is not necessary for the protection of consumers; and (3) forbearance from applying such provision or regulation is consistent with the public interest. 47 U.S.C. 160.

            1 There is Commission precedent that has applied section 310(b)(4) where a foreign government, entity or individual holds interests in a U.S.-organized entity that itself controls a broadcast, common carrier, or aeronautical radio station licensee, and section 310(b)(3) where a foreign government, entity or individual holds interests in a licensee through a U.S.-organized entity that has non-controlling interests in the licensee. See, e.g., Wilner & Scheiner I, 103 F.C.C. 2d 511, 521-24, paragraphs 17-22 & nn. 44-56 (1985), recon., Wilner & Scheiner II, 1 FCC Rcd 12 (1986); Applications of Cellco Partnership d/b/a Verizon Wireless and Atlantis Holdings LLC, WT Docket No. 08-95, Memorandum Opinion and Order and Declaratory Ruling, 23 FCC Rcd 17444, 17545-46, paragraph 231 & nn. 799-803, 17547, paragraph 237 (2008). Commenters assert there is contrary precedent.

        Under a forbearance approach, the Commission might forbear from applying section 310(b)(3) to foreign interests held in a common carrier licensee, through a U.S.-organized entity that does not control the licensee, that would exceed 20 percent of the licensee's equity interests and/or 20 percent of its voting interests, where the Commission finds the particular foreign interests to be consistent with the foreign ownership policies the Commission applies under section 310(b)(4) of the Act. The Commission would not grant forbearance when applying section 310(b)(3) to broadcast, aeronautical fixed, and aeronautical en route licenses, as these services are not telecommunications services to which section 10 forbearance applies. Foreign ownership of broadcasting licenses, moreover, raises distinct policy issues, see Section 310(b)(4) NPRM, 26 FCC Rcd at 11704, n.3, and is not subject to the WTO Basic Telecom Agreement.

        We seek comment on this general approach. We specifically seek comment on whether a forbearance approach would satisfy the three requirements of section 10 of the Act. We further request comment on whether this forbearance approach would permit the Commission to authorize greater than 20 percent foreign interests held in a common carrier licensee, through a U.S.-organized entity that does not control the licensee, when those interests would be consistent with the public interest under the policy framework established by section 310(b)(4) and the Foreign Participation Order, 12 FCC Rcd 23891 (1997).2

           We ask whether such a forbearance approach would treat all “indirect” foreign interests similarly (whether through a controlling or non-controlling U.S. organized entity), as requested by commenters.

            2 The section 310(b)(4) policy framework employs an open entry standard for foreign investment from WTO Member countries in U.S. basic telecommunications markets. In the Foreign Participation Order, which adopted this standard, the Commission concluded, pursuant to the discretionary authority granted to the Commission in section 310(b)(4), that the public interest would be served by permitting greater investment by foreign individuals and entities from WTO Member countries in the U.S.-organized entities that control common carrier and aeronautical radio licensees. See Foreign Participation Order, 12 FCC Rcd at 23891-97, paragraphs 1-12, 23935-42, paragraphs 97-118. The Commission adopted a rebuttable presumption by which it presumes that foreign investment from WTO Member countries does not pose competitive concerns in the U.S. market See also Section 310(b)(4) NPRM, 26 FCC Rcd at 11705, paragraph 2, nn.4-5. The language of section 310(b)(3) does not include the public interest test set forth in section 310(b)(4). 47 U.S.C. 310(b)(3).

        We further seek public comment on whether forbearance from application of section 310(b)(3) in this context, if adopted by the Commission, should apply procedures like those used when licensees seek Commission approval to exceed the 25 percent foreign ownership benchmark in section 310(b)(4). If that approach were applied, it would require licensees to file a petition for declaratory ruling when seeking Commission approval of foreign interests held in a common carrier licensee, through an intervening U.S. entity that does not control the licensee, that would exceed 20 percent of the equity interests and/or 20 percent of the voting interests in the licensee. The Commission would place the petition on notice for public comment and forward the petition to the Executive Branch for review.3
           Following conclusion of the public notice and comment process, the Commission would issue a declaratory ruling, consistent with its section 310(b)(4) policy framework, as to whether the foreign investment would be consistent with the public interest.4
           If the ruling is affirmative (i.e., the Commission determines that such investment comports with the public interest), the Commission would forbear from applying the section 310(b)(3) restrictions that would otherwise prohibit the foreign investment.

            3 In assessing the public interest, the Commission takes into account the record developed in each particular case and accords deference to the expertise of Executive Branch agencies in identifying and interpreting issues of concern related to national security, law enforcement, foreign policy and trade policy. Foreign Participation Order, 12 FCC Rcd at 23919-21, paragraphs 61-66.

            4 The Commission, or the International Bureau on delegated authority, in granting a section 310(b)(4) declaratory ruling: (1) Authorizes the named foreign investors from WTO Member countries to hold specified equity and voting interests in the U.S. parent that controls the licensee; (2) includes provisions and limitations to accommodate future changes in foreign ownership of the U.S. parent and to prohibit non-WTO investment from exceeding 25 percent of the U.S. parent's equity and/or voting interests; and (3), on a case-by-case basis, imposes specific conditions that respond to concerns raised by the Executive Branch in particular proceedings with respect to potential effects of the proposed foreign investment on U.S. national security, law enforcement, and public safety. Section 310(b)(4) NPRM, 26 FCC Rcd at 11712, paragraph 15.

        We ask in particular that interested parties who contend that the forbearance proposals discussed above would or would not adequately address national security, law enforcement, or public safety concerns, or that they would advance or conflict with U.S. trade policy, explain their positions in detail and provide support for their conclusions. In addition, if the Commission alters in this docket the policies and procedures that apply to section 310(b)(4), should it apply those same revisions to its public interest review under any section 310(b)(3) forbearance approach that also is adopted?
        We further seek comment on modifications to these proposals, or alternative forbearance approaches, that parties may want the Commission to consider.

          Federal Communications Commission.
          Mindel De La Torre,
          Chief, International Bureau.

      [FR Doc. 2012-9623 Filed 4-23-12; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AU58
        Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rule To List the Flat-Tailed Horned Lizard as Threatened

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; withdrawal.

          SUMMARY:

          We, the Fish and Wildlife Service (Service), have determined that the proposed listing of the flat-tailed horned lizard (Phrynosoma mcallii) as a threatened species under the Endangered Species Act (Act) of 1973, as amended, is not warranted and, thus, we withdraw our November 29, 1993, proposed rule (58 FR 62625). As stated in our January 3, 2003, withdrawal of the proposed rule to list the species as threatened (68 FR 331), we have made this determination because threats to the species as identified in the November 29, 1993, proposed rule are not significant, and available data do not indicate that the threats to the species and its habitat, as analyzed under the five listing factors described in section 4(a)(1) of the Act, are likely to endanger the species in the foreseeable future throughout all or a significant portion of its range. The analyses and conclusions contained in the January 3, 2003, withdrawal (68 FR 331) are incorporated herein by reference subject to the revisions contained in this notice. In this revised withdrawal, we have re-examined the lost historical habitat of the flat-tailed horned lizard in relation to our January 3, 2003, withdrawal of the proposed listing rule and have determined that the lost historical habitat is not a significant portion of the flat-tailed horned lizard's range and does not result in the species likely becoming endangered in the foreseeable future throughout all or a significant portion of its range.

          ADDRESSES:
          Supporting documentation for this rulemaking is available for public inspection, by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011.

          FOR FURTHER INFORMATION CONTACT:
          Jim Bartel, Field Supervisor, at the above address (telephone, 760-431-9440, or fax, 760-431-9624).

        SUPPLEMENTARY INFORMATION:
        Background

        Information on the biology and ecology of this species, factors affecting the species, and current conservation measures applicable to this species can be found in the January 3, 2003, withdrawal of the proposed listing rule (68 FR 331). This document primarily contains information relevant to the current and historical range of this species and the issue of the significance of the lost habitat. We also address the status of several projects and ongoing actions as they relate to the flat-tailed horned lizard and provide an update on several of the actions outlined in the 1997 Flat-Tailed Horned Lizard Conservation Agreement (see “Summary of Comments and Recommendations” section).

        The flat-tailed horned lizard is most commonly found in sandy flats and valleys within creosote (Larrea tridentata) and white bursage (Ambrosia dumosa) plant associations or series (Turner et al. 1980; Muth and Fisher 1992; Foreman 1997). This series is generally found on alluvial fans and upland slopes with well-drained soils that often have a pavement surface (Sawyer and Keeler-Wolf 1995), but flat-tailed horned lizards are usually found in areas with windblown sand deposits. The flat-tailed horned lizard is endemic to the northern Sonoran Desert in southern California, southwestern Arizona, and adjoining portions of northwestern Sonora and Baja California Norte, Mexico (Turner and Medica 1982). Within California, the flat-tailed horned lizard currently ranges in the Colorado Desert portion of the Sonoran Desert, from the Coachella Valley (the northernmost extent of its range), south along both sides of the Imperial Valley. On the west side of the Imperial Valley, the species ranges into the Borrego Valley, Ocotillo Wells area, West Mesa, and Yuha Basin. On the east side of Imperial Valley, the species occurs in the Bureau of Land Management (BLM) Dos Palmas Area of Critical Environmental Concern (ACEC), but predominantly occurs in East Mesa and in areas adjoining the Algodones Dunes (i.e., Imperial Sand Dunes, Glamis Sand Dunes). In Arizona, the flat-tailed horned lizard is found in the Yuma Desert portion of the Sonoran Desert, south of the Gila River and west of the Gila and Butler Mountains (Rorabaugh et al. 1987). The flat-tailed horned lizard is patchily distributed at varying densities throughout its range, and although the species was once recorded at 1,706 feet (ft) (520 meters (m)) above sea level, it is more commonly found below 820 ft (250 m) in flat areas or areas with gentle slopes (Turner et al. 1980).
        The range of the flat-tailed horned lizard extends into Mexico from the international border in the Yuha Basin in California, south along the west side of Laguna Salada in Baja California; and from the international border in the Yuma Desert in Arizona, south and east through the Pinacate Region to the sandy plains around Puerto Penasco and Bahia de San Jorge, Sonora (Johnson and Spicer 1985, Gonzales-Romero and Alvarez-Cardenas 1989).

        Most of the range of the flat-tailed horned lizard in California and Baja California Norte is in the Salton Trough, a low-lying depression that is an extension of the Gulf of California. The lowest areas of the Salton Trough are below sea level and are protected from inundation from the ocean by the Colorado River delta. The geological record indicates that, as the Colorado River meandered across its river delta, it would periodically flow into the Salton Trough and form Lake Cahuilla in the bottom of the Trough. Over time, the river would again flow into the Gulf of California, and Lake Cahuilla would evaporate (Waters 1983). As a result of dams, channelization, and water usage, such flooding no longer occurs.
        As discussed in the January 3, 2003, withdrawal of the proposed listing rule (68 FR 331), the range of this species in the United States has been analyzed by Hodges (1997) and the range of the species in the United States and Mexico has been analyzed by Johnson and Spicer (1985). The 2003 revision of the 1997 Flat-tailed Horned Lizard Rangewide Management Strategy (herein referred to as the 2003 Rangewide Management Strategy) is the most recent analysis of the species' range in the United States and Mexico (FTHL-ICC 2003).
        Hodges (1997) estimated that the flat-tailed horned lizard historically (prior to agricultural or urban development of either the Coachella or Imperial Valleys) occupied up to 2,419,200 acres (ac) (979,037 hectares (ha)) in Arizona and California. Approximately 51 percent (1,243,339 ac (503,161 ha)) of the historical habitat identified by Hodges remains in the United States, with about 140,300 ac (56,770 ha) in Arizona and 1,103,040 ac (446,390 ha) in California (Hodges 1997). Hodges (1997) included the Salton Sea as historical habitat. However, we noted in the January 3, 2003, withdrawal that the Salton Sea area could arguably be considered ephemeral historical habitat, present or absent at times, as the area changed through time as a result of intermittent flooding and drying. At that time we did not consider the effect of the larger Lake Cahuilla. We estimated that if the area now occupied by the Salton Sea was not considered historical habitat, then, using Hodges' (1997) numbers, approximately 57 percent of historical habitat remains in the United States. Hodges' (1997) analysis did not include current or historical habitat for this species in Mexico.
        Johnson and Spicer (1985) analyzed the current range and threats to the species in the United States and Mexico at that time. They estimated that in 1981 approximately 59 percent of the species' range occurred in Mexico (569,578 ac (230,500 ha)), with the majority of the range in Mexico occurring in the state of Sonora (492,975 ac (199,500 ha)). Johnson and Spicer (1985) also estimated that 50 percent of the species' habitat in California, Arizona, and Baja California Norte and 14 percent of the species' habitat in Sonora was in danger of conversion to agriculture or urban development and/or degradation due to factors such as off-highway vehicle recreation. Overall, 21 percent of the species' habitat throughout its range was considered in danger of being lost or degraded (Johnson and Spicer 1985).
        The 2003 Rangewide Management Strategy contained updated information on the current and historical range of the species in the United States and Mexico and made available data on historical and current range in geographic information system (GIS) format (FTHL-ICC 2003). We analyzed the GIS data used in the 2003 Rangewide Management Strategy and estimated the size of the historical and current ranges. We estimated the extent of historic Lake Cahuilla by using a GIS digital elevation model and the estimated elevation the lake reached. We estimated the historical range of the flat-tailed horned lizard in the United States and Mexico to be 4,875,624 ac (1,973,095 ha).
        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 pursuant to the Act (58 FR 62624). On May 16, 1997, in response to a lawsuit filed by the Defenders of Wildlife to compel us to make a final listing determination on the flat-tailed horned lizard, the District Court in Arizona ordered the Service to issue a final listing decision within 60 days. A month after the District Court's order, seven State and Federal agencies signed the Flat-Tailed Horned Lizard Conservation Agreement (referred to herein as the 1997 Conservation Agreement) to implement a Flat-tailed Horned Lizard Rangewide Management Strategy to protect the flat-tailed horned lizard on Federal lands. Pursuant to the 1997 Conservation Agreement, cooperating parties agreed to take voluntary steps aimed at “reducing threats to the species, stabilizing the species” populations, and maintaining its ecosystem.”
        On July 15, 1997, we published in the Federal Register a final decision to withdraw the proposed rule to list the flat-tailed horned lizard as a threatened species (62 FR 37852). We based the withdrawal on three factors: (1) Population trend data did not conclusively demonstrate significant population declines; (2) some of the threats to the flat-tailed horned lizard habitat were misunderstood previously; and (3) we believed that the recently approved “conservation agreement w[ould] ensure further reductions in threats.”
        Six months following our withdrawal of the proposed listing rule, the Defenders of Wildlife filed a lawsuit challenging our decision. On June 16, 1999, the District Court for the Southern District of California granted summary judgment in our favor upholding our decision not to list the flat-tailed horned lizard. However, on July 31, 2001, the Ninth Circuit Court of Appeals reversed the lower court's ruling and directed the District Court to remand the matter back to us for further consideration in accordance with the legal standards outlined in its opinion. The case was remanded back to the Service because (1) the withdrawal did not expressly consider whether the flat-tailed horned lizard is likely to become an endangered species within the foreseeable future in a significant portion of its range; and (2) the withdrawal did not “address the lizard's viability in a site-specific manner with regard to the putative benefits of the Conservation Agreement.”

        On October 24, 2001, the District Court ordered the Service to reinstate the previously effective proposed listing rule within 60 calendar days and, thereafter, commence a 12-month statutory time schedule for a final listing decision, and render our final listing determination in compliance with the mandate of the Ninth Circuit Court's order. Accordingly, we published a notice in the Federal Register on December 26, 2001, announcing the reinstatement of the November 29, 1993, proposed rule to list the flat-tailed horned lizard as threatened and the opening of a 120-day public comment period on the reinstated proposed rule (66 FR 66384).
        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 other environmental organizations and individuals filed a lawsuit challenging our January 3, 2003, withdrawal. On August 30, 2005, the U.S. District Court for the District of Arizona set aside our withdrawal of the proposed rule to list the flat-tailed horned lizard as a threatened species on the grounds that our withdrawal violated the Act because it failed to determine whether the lost historical habitat for the flat-tailed horned lizard was a significant portion of the range for this species. With this exception, all other aspects of the January 3, 2003, withdrawal were upheld by the District Court.

        On November 17, 2005, the District Court ordered the Service to submit for publication in the Federal Register by November 23, 2005, or as soon thereafter as was practicable, a notice advising the public that the January 3, 2003, withdrawal was vacated and that the November 29, 1993, proposed listing rule was reinstated. On December 7, 2005, we published a notice in the Federal Register vacating the January 3, 2003, withdrawal and restoring proposed status to the flat-tailed horned lizard (70 FR 72776).

        The November 17, 2005, order limited the scope of the remand to specifically address whether the lost historical habitat is a significant portion of the range for the flat-tailed horned lizard. The Court further required the Service to publish a determination in the Federal Register by April 30, 2006, as to whether the lost historical habitat of the flat-tailed horned lizard constitutes a significant portion of the species' range based on the best scientific and commercial data available. On March 2, 2006, we published a notice announcing the reopening of a 14-day public comment period on the November 29, 1993, proposed rule to list the flat-tailed horned lizard under the Act (71 FR 10631). To ensure the public was provided with an adequate opportunity to comment on the matters identified by the Court, the parties filed a Joint Stipulation with the Court on March 28, 2006, to allow for an additional public comment period. On March 29, 2006, the Court granted our request for an extension of the April 30, 2006, deadline, and ordered us to submit the new final listing determination for the flat-tailed horned lizard to the Federal Register on or before the date 6 weeks after the close of the second comment period. The second comment period was opened from April 21, 2006 to May 8, 2006 (71 FR 20637). This withdrawal of the November 29, 1993, proposed listing rule complies with the Court's August 30, 2005, and November 17, 2005, orders.
        For your convenience, here is a list of the primary Federal Register documents pertaining to the proposed listing of the flat-tailed horned lizard as threatened:

            Action
            Date
            FR citation

            Proposed rule to list the flat-tailed horned lizard as threatened
            November 29, 1993
            58 FR 62624

            Withdrawal of proposed rule
            July 15, 1997
            62 FR 37852

            Reinstatement of proposed rule; reopening of comment period
            December 26, 2001
            66 FR 66384

            Withdrawal of proposed rule
            January 3, 2003
            68 FR 331

            Reinstatement of proposed rule
            December 7, 2005
            70 FR 72776

            Reopening of comment period
            March 2, 2006
            71 FR 10631

            Reopening of comment period
            April 21, 2006
            71 FR 20637

        Summary of Comments and Recommendations
        During both public comment periods on the December 7, 2005 reinstatement of the proposed rule to list, we requested all interested parties to submit information pertaining to the flat-tailed horned lizard's lost historical habitat. We requested this information to make a reexamination based on the best scientific and commercial data currently available. We also reopened the comment period to admit into the record the 2003 revision of the Flat-tailed Horned Lizard Rangewide Management Strategy. During the public comment periods, we received written comments from a total of 29 entities. Nineteen entities advocated listing of the species, 5 entities advocated not listing the species, and 5 entities did not advocate either decision.
        As stated previously, in its November 17, 2005 Order, the Court ordered that “on remand the agency need only address the matters on which the court's August 30, 2005 Order * * * found the January 3, 2003 Withdrawal unlawful, which may summarily be identified as whether the lizard's lost historical habitat renders the species in danger of extinction in a significant portion of its range.” We received two comments directly related to the issue of the flat-tailed horned lizard's lost historical habitat. However, for informational purposes, we have also provided responses to comments on other substantive issues as well. Similar comments are grouped together.

          Comment 1: One commenter stated that there does not appear to be strong scientific evidence to establish the extent of the historical range of the lizard. The commenter stated that claims that east Imperial County and west Yuma County were historically occupied by flat-tailed horned lizards are unsupportable. The commenter indicates that the present range seems adequate to prevent the extinction of this species.

          Our Response: Delineation of historical habitat is retrospective and not testable in the way that other scientific models are. However, based on knowledge of habitat preference for the species, early descriptions of habitat before development, and early museum records, a reasonable and defensible theoretical estimation of the broad-scale historical range of the species is possible. While there are a number of records of flat-tailed horned lizards from the Imperial Valley and the Yuma Valley in areas that are now developed, locality records do not fully delineate the theoretical range of the flat-tailed horned lizard. Historical museum records are summarized in Funk (1981).

          Comment 2: One commenter stated that the habitat destroyed by human mediated processes and no longer available for the flat-tailed horned lizard in the Imperial, Coachella, and Yuma valleys was significant to the species from a metapopulation dynamics perspective because the availability of large, continuous patches of potentially available habitat provides areas for species to persist as resources (i.e. food, water, and habitat) shift geographically over time.

          Our Response: We interpreted the commenter's statements to pertain to the importance of maintaining large-scale metapopulation dynamics between populations in the Imperial, Coachella, and Yuma valleys. Metapopulation dynamics refers to the process exhibited when local populations become extirpated in response to local conditions but are later recolonized by adjacent patches.

        We acknowledge that large-scale metapopulation dynamics and gene flow have been disrupted by the loss of connectivity between populations in these areas; however, this loss of connectivity endangers primarily Coachella Valley populations because the other populations are large enough to be self-sustaining. We recognized the precarious status and possibility of extinction of the flat-tailed horned lizard in the Coachella Valley in the January 3, 2003, withdrawal, further acknowledging that if the Coachella Valley populations go extinct, there is no connectivity for repopulation from other areas (e.g., Imperial Valley). However, we determined that the Coachella Valley populations are not a distinct vertebrate population segment and that the Coachella Valley is not a significant portion of the species' range.

        Relevant to the importance of maintaining large-scale metapopulation dynamics between Imperial and Yuma Valley populations, most of the intermittent and permanent habitat that has been lost due to human mediated processes (e.g., urbanization and agriculture) was lost early in the 20th century. This lost habitat is not considered significant because of its small size relative to the entire range and because this area has been lost for nearly a century and the flat-tailed horned lizard has persisted in these areas.
        As discussed in detail in the January 3, 2003, withdrawal of the proposed listing rule (68 FR 331), the available data concerning population abundance, trends, and threats do not suggest, outside the Coachella Valley, that flat-tailed horned lizard populations are declining in any of the geographic areas, or that because of this habitat loss and degradation the species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. As discussed below, recent estimates of population sizes in several management areas in the Imperial Valley (Ocotillo Wells Research Area, West Mesa, Yuha Basin, and East Mesa) and Yuma Valley (Yuma Desert Management Areas) since the January 3, 2003, withdrawal of the proposed listing rule indicate that, overall, no large decline in population size has occurred between 2003 and 2005 in areas for which we have more than one year of data.
        Therefore, we do not believe the lost habitat is significant to the species from a large-scale metapopulation perspective, because populations in the Imperial and Yuma valleys appear to be large enough to be self-sustaining despite the loss of habitat between these valleys that occurred early in the 20th century.

          Comment 3: Several commenters stated that this species needs the protection of the Endangered Species Act.

          Our Response: As stated in our January 3, 2003, withdrawal of the proposed rule to list the species as threatened (68 FR 331), we have made this determination because threats to the species as identified in the November 29, 1993, proposed rule are not significant, and available data do not indicate that the threats to the species and its habitat, as analyzed under the five listing factors described in section 4(a)(1) of the Act, are likely to endanger the species in the foreseeable future throughout all or a significant portion of its range.
        Also, we have determined, as discussed in this notice, that the lost historical habitat does not render the species in danger of extinction throughout all or a significant portion of its range. Commenters did not provide new information or data during either comment period on additional threats not already considered in the January 3, 2003, withdrawal.

          Comment 4: Several commenters noted the impacts to the flat-tailed horned lizard that would be associated with the construction of the proposed Yuma Area Service Highway.

          Our Response: The Yuma Area Service Highway has been discussed at many Arizona Interagency Coordinating Committee (ICC) meetings. Arizona ICC members met repeatedly with Arizona Department of Transportation (DOT) engineers to ensure compliance with the 2003 Rangewide Management Strategy. The Arizona DOT already had long-term plans to construct this highway when the 1997 Conservation Agreement was signed. Therefore, the western border of the Yuma Desert Management Area was defined as the edge of the right-of-way of the future Yuma Area Service Highway. Until the highway is built, the lands under jurisdiction of the signatories of the Conservation Agreement will be managed as part of the Yuma Desert Management Area. The highway, as proposed, would destroy 623 ac (252 ha) of flat-tailed horned lizard habitat and isolate 3,734 ac (1,511 ha) from the Yuma Desert Management Area. Thus, the Yuma Area Service Highway shrinks the 131,000-ac (53,000-ha) Yuma Desert Management Area by a relatively small amount. It is our understanding from the Arizona members of the ICC that Arizona DOT intends to pay compensation for 4,277 ac (1,731 ha) of flat-tailed horned lizard habitat impacted or isolated by the project and that fencing will be installed to deter lizards from crossing the pavement where they may be subject to mortality because of traffic.

          Comment 5: Several commenters noted that the Bureau of Reclamation plans to construct a new reservoir, the All American Canal Drop 2 reservoir, on East Mesa in flat-tailed horned lizard habitat.

          Our Response: The All American Canal Drop 2 reservoir, proposed for construction in Imperial County, California, was discussed extensively at the flat-tailed horned lizard ICC meetings. The 621-acre (251-ha) reservoir, as proposed, will be built on the site formerly used for the Brock Ranch Experimental Research Station and will be adjacent to, but outside the boundaries of the 115,300-acre (46,660-ha) East Mesa Management Area. A map released by the Bureau of Reclamation (BOR) showed that half of the reservoir would be within the boundaries of the East Mesa Management Area. However, according to the BLM, that map was in error. The input canal from the Coachella Canal to the Drop 2 reservoir will cross BLM land in the East Mesa Management Area, along the southern boundary, and will directly impact 295 ac (119 ha) in the Management Area. The input canal will also isolate two small areas of the Management Area; however, these areas are of limited value to flat-tailed horned lizards. The first area is 120 ac (49 ha) in the southeast corner of the Management Area that is already highly impacted by off-highway vehicle (OHV) activity. The second area is 320 ac (129 ha) on private land that is currently an abandoned jojoba farm and not suitable habitat for flat-tailed horned lizards. It is our understanding from BLM staff that all areas impacted, including the areas to be isolated, will be compensated for by BOR at the ratio dictated by the 2003 Rangewide Management Strategy. Since this Management Area is not fenced, the location of the input canal will benefit the Management Area by creating a barrier that will discourage illegal OHV activity. The amount of habitat impacted will fall below the 1 percent of Federal lands allowed by the 2003 Rangewide Management Strategy.

          Comment 6: Several commenters pointed out plans for geothermal plants in flat-tailed horned lizard habitat.

          Our Response: It is our understanding from BLM staff that several applications for geothermal leases in the West Mesa Management Area and the Ocotillo Wells State Vehicle Recreation Area have been submitted. At this point in time, the construction of geothermal plants is speculative. A lease allows a project applicant to evaluate the site for geothermal energy. If it is then suitable, the applicant and the BLM must go through the National Environmental Policy Act (NEPA) process prior to constructing the geothermal facilities. The NEPA requires the Federal agencies to consider the environmental impacts, including impacts to listed and sensitive species, of their proposed actions and reasonable alternatives to those actions.

          Comment 7: Several commenters noted the proposal for a large solar energy plant in flat-tailed horned lizard habitat in Imperial Valley.

          Our Response: The solar plant was originally proposed to be built in the West Mesa Management Area, but because of the 2003 Rangewide Management Strategy the BLM asked that it be moved out of the West Mesa Management Area and the project proponents agreed. According to the BLM, the current proposed site is on BLM land, is not within any Management Area occupied by the flat-tailed horned lizard, and compensation for any flat-tailed horned lizard lost habitat will be applied, if applicable.

          Comment 8: Several commenters noted the extensive Border Patrol activity in flat-tailed horned lizard habitat.

          Our Response: The Border Patrol is not a signatory of the 1997 Conservation Agreement; however, the ICC works with them on conservation issues. In California, new Border Patrol agents are educated on the impacts to biological and archaeological resources by driving off-road. Recently, an educational video paid for by flat-tailed horned lizard compensation funds was distributed to Border Patrol offices and they agreed to show the video to all existing agents as well as incorporate it into the training for new agents. It is our understanding that the ICC intends to continue working with the Border Patrol to minimize impacts to flat-tailed horned lizard and its habitat associated with the performance of their duties along the border.

          Comment 9: Several commenters stated that the 1997 Conservation Agreement and Rangewide Management Strategy are not working.

          Our Response: Progress toward the goals of the 1997 Rangewide Management Strategy was evaluated during the 2003 revision of the Rangewide Management Strategy and yearly in annual reports. Some of the progress made includes the following: Between 1997 and 2003, surface disturbance was kept well below the 1 percent cap in each of the five Management Areas. Designation of the Management Areas has occurred and the 2003 Rangewide Management Strategy has become an official part of the BLM California Desert Conservation Area plan. The Management Areas comprise 485,000 ac (196,273 ha) or 758 square miles (1,963 square kilometers) of presumably the best flat-tailed horned lizard habitat on Federal lands. Compensation funds have been collected for projects in flat-tailed horned lizard habitat and will continue to be collected. These funds have been used to purchase private lands within Management Areas.
        As outlined in the 1997 Conservation Agreement, research and monitoring for this species have been funded. Research on basic biology such as significant predators, home range size, diet, and reproduction has been conducted since the 1997 Conservation Agreement was signed. Research on impacts such as edge effects and OHV effects has also been conducted. Studies have also been conducted, or are planned, on the efficacy of mitigation measures such as relocation of lizards from project sites and use of under-highway culverts by this species. Methods to monitor this species, such as scat counts, mark-recapture, presence/absence, trapping webs, distance sampling, and occupancy estimation have been tested for this species, and population estimates have been obtained for four Management Areas and the Research Area. Based on these actions as well as others not explicitly mentioned above, we believe that the 1997 Conservation Agreement is helping to conserve the flat-tailed horned lizard and its habitat.
        Summary of Factors Affecting the Species
        Section 4 of the Act (16 U.S.C. 1531 (et seq.) and the regulations (50 CFR part 424) that implement the listing provisions of the Act set forth the procedures for adding species to the Federal list of endangered and threatened species. They provide that a species may be determined to be endangered or threatened if one or more of the following five factors are met:
        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.
        E. Other natural or manmade factors affecting its continued existence.

        As stated above, the November 17, 2005, Court Order limited the scope of the remand to specifically address whether the lost historical habitat is a significant portion of the range for the flat-tailed horned lizard. (See the January 3, 2003, withdrawal of the proposed listing rule [68 FR 331] for the full discussion of the five factors and their application to the flat-tailed horned lizard.) Therefore, the sole purpose of this withdrawal is to reexamine and expand upon our previous discussions of the five factors in order to address whether the lost historical habitat is a significant portion of the range for the flat-tailed horned lizard. The analysis in this document will primarily reflect lost historical habitat as a component of factor A because factor A requires an analysis of whether the curtailment of a species' habitat or range is a threat to its continued existence.
        Historical and Current Range, and Temporal Baseline

        We consider the 2003 Rangewide Management Strategy to be the best scientific and commercial information available on the historical and current range of the species. The 2003 Rangewide Management Strategy builds on previous information on the range of the species (i.e., Johnson and Spicer 1985; Hodges 1997) and bases the delineation of historical and current range on the presence of suitable habitat, known localities, and elevation (flat-tailed horned lizards have rarely been found above 750 ft in elevation). As stated above, we analyzed the GIS data used in the 2003 Rangewide Management Strategy, which depicted the approximate current and historical distribution of the flat-tailed horned lizard. We also used GIS to estimate the extent of historic Lake Cahuilla, which was subtracted from the current and historical range of the species. We used our analysis to estimate the historical range of the flat-tailed horned lizard in the United States and Mexico to be 4,875,624 ac (1,973,095 ha).
        Temporal Baseline

        In the memorandum of support for the District Court order of August 30, 2005, the Court “found that the Service had failed to satisfy the Ninth Circuit's mandate in a prior phase of this case, by failing to examine whether lost historical habitat constituted a ‘significant portion' of the species' range.” In citing the Ninth Circuit, the District Court noted that the Service ‘has discretion to choose the point in time at which to examine the range because neither the Ninth Circuit nor the [Endangered Species Act] provide ‘a temporal baseline for assessing a species' total range' * * *. The point in time must be sometime in the past, however, and cannot be the current range.” In identifying the lost historical habitat for the flat-tailed horned lizard, we determined it was appropriate to consider the available recorded historical information.

        Lake Cahuilla
        Lake Cahuilla is an important consideration in determining the historical range of the flat-tailed horned lizard. From prehistoric times to the formation of the current-day Salton Sea, Lake Cahuilla intermittently filled a portion of the Salton Trough. Thus, the lakebed was intermittent habitat for the flat-tailed horned lizard. Lake Cahuilla completely filled and evaporated 4 times between 700 to 1580 AD (Waters 1983). At other times, spring floods on the Colorado River would partially fill the trough. During the 1800s, reported episodes of inundation occurred in 1828, 1840, 1849, 1852, 1859, 1862, 1867, and 1897 (Littlefield 1966). A flood in 1891 created a water body of approximately the same surface area as the current Salton Sea (Sykes 1914). The 2003 Rangewide Management Strategy, in discussing the historical range of the flat-tailed horned lizard, states: “The Salton Basin [Salton Trough] had been subjected to frequent inundation from the Colorado River even prior to the accidental flooding from 1905 through 1907, and it is questionable whether this area can be considered historic habitat.” Flat-tailed horned lizards were likely killed during floods as the water rushed into the basin and recolonization occurred as the water evaporated.

        Even when the lake was dry, a large portion of the dry lakebed was likely unsuitable habitat for flat-tailed horned lizards. The lowest point of the trough was covered in a thick deposit of salt left behind when the water evaporated (Free 1914), which was likely devoid of plant and animal life. This area is now covered by the Salton Sea. Desert sinks and playas like the Salton Trough are typically inhabited by a salt-tolerant community dominated by Atriplex (saltbush) species (Baldwin et al. 2002). In the saltiest and wettest parts of a desert sink, Atriplex is replaced by more salt-tolerant plants such as pickleweed (Salicornia), iodine bush (Allenrolfea), and seepweed (Suaeda). Parish (1914) defined the “Salton Sink” as the area between the shoreline of Lake Cahuilla and the then-shrinking Salton Sea. He characterized the vegetation within the Salton Sink as the Atriplex zone, because of the domination by Atriplex in the sink. “Of this general flora of the Colorado Desert the xerophytic vegetation of the Sink is a part, differentiated mainly by the great preponderance of Atriplex spp. in its composition, so that it may be fittingly denominated the Atriplex zone” (Parish 1914, p. 89). Creosote, a typical habitat associate for flat-tailed horned lizards, was characterized as “frequent in arid soil throughout the Sink, but scattered and seldom dominant” (Parish 1914, p. 109). Parish described white bursage, another typical habitat associate for flat-tailed horned lizards, as “frequent in detrital soil and occasional in light alluvium. [Locations:] Mecca, Caleb, Durmid, Westmorland.” He described detrital soils as primarily occurring on the northeast margin of the Sink. Thus, the lakebed of Lake Cahuilla was not the typical creosote-bursage habitat association as has been described for this species (Turner and Medica 1982, Turner et al. 1980, FTHL-ICC 2003).
        The Atriplex community in the lakebed was, at best, likely marginal habitat for flat-tailed horned lizards. Flat-tailed horned lizards have been found in association with Atriplex in the Dos Palmas area and San Sebastian Marsh area, but a mark-recapture plot in desert sink scrub with no sand in the Dos Palmas ACEC found no flat-tailed horned lizards (Mark Massar, Wildlife Biologist, BLM, Palm Springs, pers. comm. 2005). The area surrounding San Sebastian Marsh is in the lakebed of Lake Cahuilla and mirrors the vegetation associations described by Parish (1914) with areas of Atriplex, iodine bush, and mesquite, but the San Sebastian Marsh area has yielded very few flat-tailed horned lizards (FTHL-ICC 2003). Turner et al. (1980) recognized that the lakebed appeared to be lesser quality habitat: “In Imperial County, habitats above the old shoreline of Lake Cahuilla are better than those below the shoreline, possibly because soils above the old shoreline tend to be sandier.”

        The first known historical record of a flat-tailed horned lizard from the lakebed of Lake Cahuilla was collected near the present-day city of Calexico (Klauber 1932). Other flat-tailed horned lizards were collected early in the 20th century near the present-day cities of Westmorland and Holtville and from the edges of the Salton Sea (Klauber 1932; Funk 1981; Turner et al. 1980). These areas are now urban or agricultural areas. Turner and others (1980), noting the few flat-tailed horned lizards found in association with Atriplex, suggested they may represent dispersing individuals. In most cases, flat-tailed horned lizard populations in Atriplex habitat appear to be sparse. The exception to this rule may be the high densities of flat-tailed horned lizards found associated with Atriplex in the Coachella Valley (FTHL-ICC 2003). However, the windblown sand preferred by flat-tailed horned lizards is found in adequate amounts in the Coachella Valley Preserve (Barrows 1996). The San Sebastian Marsh and Dos Palmas areas described above have little windblown sand. Parish (1914) describes the soils of the southern part of the sink (south of the current-day Salton Sea) as “loams of very fine compact grain * * * with very small percentages of sand. They are permeable by water only to a slight degree.” No information has been found on the amount of wind-deposited sand that was present in the lakebed. Free (1914) alludes to accretion dunes in the lakebed that may have been good flat-tailed horned lizard habitat. But Parish (1914), describing the vegetation of the Imperial Valley, reported “wide expanses absolutely devoid of a single plant save in the infrequent furrows and channels which constitute the drainage system.”
        The precise proportion of the lakebed that historically was habitat, and the quality of that habitat, is difficult to accurately determine. We do not know the precise proportions of specific plant communities that were present in the Salton Sink. We do not know the patterns of windblown sand deposition. Despite the difficulty in accurately determining historic conditions in the dry lakebed, we believe that it contained only a limited amount of suitable habitat, most of which is likely to have been marginal at best. Thus, even if the lakebed were considered historical habitat, it would not be significant to the species.

        Additionally, recent work on the genetics of the flat-tailed horned lizard suggests that gene flow across the lakebed between the east and west sides of the Salton trough was low even before the current fragmentation due to development and agriculture (Mulcahy et al. 2006). The authors state: “* * * suggesting that there has not been substantial gene flow across the Imperial Valley since the drying of Lake Cahuilla. Although historic localities exist in the Imperial Valley, genetic differences suggested limited gene flow across this region prior to human development.”
        Lost Habitat

        As discussed above, the area of the historical range periodically inundated by Lake Cahuilla was not important to the long-term viability of the flat-tailed horned lizard because this area was frequently unavailable and likely contained little quality habitat. Much of the area within the former Lake Cahuilla lakebed likely was not only intermittent, but low-quality habitat for the flat-tailed horned lizard, particularly the central salt deposit and saltier, less sandy portions of the Atriplex community. Thus, we determined this area should not be considered part of the species' historical habitat. The remainder of this analysis considers the historical habitat outside the area of the former Lake Cahuilla to be the appropriate baseline for assessing the species' total range. Using our estimate that the former Lake Cahuilla was 1,309,409 ac (529,899 ha) based on a 39 ft (12 m) shoreline (Waters 1983) calculated with a GIS digital elevation model, the baseline for assessing the species' range (which excludes the former Lake Cahuilla) was approximately 4,875,624 ac (1,973,095 ha). Below we describe the significance of lost habitat within this delineated historical habitat (outside the area of the former Lake Cahuilla).
        Approximately 1,103,201 ac (446,450 ha) have been lost, nearly entirely within two areas: the Coachella Valley, and Mexicali and Yuma areas. In the January 3, 2003, withdrawal, we determined that the Coachella Valley, including its lost associated habitat, is not a significant portion of the range. Near Mexicali, agriculture extends from Mexicali south to near the Gulf of California and east to the Colorado River. This block of lost habitat is contiguous (across the Colorado River) with the block of lost habitat in the Yuma area. The block of habitat that encompasses northeastern Baja California Norte and southwestern Arizona is the largest block of lost habitat.
        These habitat areas were likely converted to agriculture early in the 20th century, similar to that described for the Imperial Valley (Imperial Irrigation District 2002). The lost habitat is not significant because of its small size relative to the entire range and because this area has been lost to agriculture for nearly a century and the flat-tailed horned lizard has persisted. Since the early 20th century, the species has persisted on East Mesa and West Mesa, and in the Yuha Basin over many generations. Flat-tailed horned lizards rarely live more than 4 years in the wild and can reproduce in their first or second year (FTHL-ICC 2003). If the median generation time is 2 years, then more than 25 generations of flat-tailed horned lizards have come and gone since most of the habitat conversion to agriculture production took place. This continued persistence over a span of nearly 100 years is a strong indication that the species will continue to persist into the foreseeable future despite the loss of historical habitat.
        We do not expect additional conversion of flat-tailed horned lizard habitat to agriculture in the future in the Imperial Valley and elsewhere along the Colorado River given the existing limitations on the availability of water for irrigation (Imperial Irrigation District 2002). In fact, a recent water transfer agreement with San Diego required some fields to remain fallow (unirrigated); therefore, agricultural use may even decrease in this area (Imperial Irrigation District 2006).
        Though the lost habitat is situated between the Arizona-Sonora and California-Baja California Norte populations, the Colorado River already isolated these populations to some degree. The lost habitat of the flat-tailed horned lizard in the United States and Mexico is not viable for flat-tailed horned lizards in the foreseeable future. Much of this habitat has been permanently lost due to urbanization and/or flooding of the Salton Sea. Habitat lost due to agricultural uses may be restored in certain cases in the future, though most agricultural fields are isolated from existing flat-tailed horned lizard populations by irrigation canals like the Coachella Canal, Highline Canal, and All-American Canal. We do not anticipate any significant amount of previously lost habitat could become viable habitat in the future.
        In sum, we believe the lost habitat does not represent a significant portion of the range of the flat-tailed horned lizard because the lost habitat was lost decades ago and the species has persisted. Most of the lost habitat was lost early in the century and that lost habitat was not significant enough to lead to the species' extirpation within intact habitat through edge effects or fragmentation. There were no attributes or specific uses of the lost habitat by flat-tailed horned lizards that made it any more significant than any other habitat. For example, a significant part of a range for a species might be a breeding ground or lek site, but there is nothing of the sort for flat-tailed horned lizards. Additionally, as discussed in detail in the January 3, 2003, withdrawal of the proposed listing rule (68 FR 331), the available data concerning population abundance, trends, and threats do not suggest, outside the Coachella Valley, that flat-tailed horned lizard populations are declining in any of the geographic areas, or that because of this habitat loss and degradation the species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Recent estimates of population sizes have been conducted in the West Mesa, Yuha Basin, East Mesa, and the Yuma Desert Management Areas and Ocotillo Wells Research Area since the January 3, 2003, withdrawal of the proposed listing rule (Young et al. 2004; Hollenbeck, Environmental Scientist, California Department of Parks and Recreation, pers. comm. 2005; Grant 2005). Overall, no large decline in population size occurred between 2003 and 2005 in areas for which we have more than one year of data (Grant 2005, Hollenbeck, Environmental Scientist, California Department of Parks and Recreation, pers. comm. 2005).
        Finding
        On January 3, 2003 (68 FR 331), the Service issued a decision to withdraw the proposal to list the flat-tailed horned lizard. The Tucson Herpetological Society and other environmental organizations and individuals filed a lawsuit to challenge our decision. The U.S. District Court for the District of Arizona upheld our decision with the exception that we had failed to consider whether the lost historical range of the flat-tailed horned lizard constituted a significant portion of the range. This notice addresses this issue.
        We reviewed the best scientific and commercial data available and determined that the lost habitat is not a significant portion of the species range, and does not render the species likely to become endangered within the foreseeable future throughout all or a significant portion of its range. We conclude that the lost habitat is not significant because the species has persisted despite a large amount of habitat loss in the early 20th century, the species remains viable throughout most of its current extant range, and there were no particular attributes of the lost habitat that made it any more significant than any other part of the range. Therefore, based on the above reasoning and the reasoning presented in the January 3, 2003 withdrawal of the proposed rule to list the flat-tailed horned lizard (68 FR 331), we have determined that the flat-tailed horned lizard is not likely to become in danger of extinction in the foreseeable future throughout all or a significant portion of its range.

        References Cited

        A complete list of all references cited is available at the Carlsbad Fish and Wildlife Office (see ADDRESSES above).
        Author

        The primary author of this document is the Carlsbad Fish and Wildlife Office (see ADDRESSES above).
        Authority

        The authority for this action is section 4(b)(6)(B)(ii) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: June 20, 2006.
          Marshall Jones, Jr.,
          Acting Director, U.S. Fish and Wildlife Service.

       [FR Doc. E6-10138 Filed 6-27-06; 8:45 am]
      BILLING CODE 4310-55-P