[Federal Register: May 30, 2002 (Volume 67, Number 104)]
[Proposed Rules]               
[Page 37752-37754]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI51

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Reinstated proposed rule; reopening of comment period and 
announcement of public hearings.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the 
reopening of the public comment period for the proposed listing of the 
flat-tailed horned lizard (Phrynosoma mcallii) as a threatened species 
pursuant to the Endangered Species Act of 1973, as amended (Act). The 
reopened comment period will allow all interested parties to submit 
written comments on the proposal. Comments previously submitted need 
not be resubmitted as they have been incorporated into the public 
record and will be fully considered in the final determination. 
Additionally, we are announcing that public hearings will be held on 
the proposed listing determination. Because of budgetary constraints, 
we are only able to hold public hearings on June 19, 2002, as described 
below. We welcome all substantive comments and want to stress that 
written comments on the proposal are given equal consideration as 
verbal comments presented at the public hearings.

DATES: The original public comment period on the proposed listing 
determination closed on June 9, 1997, and the second comment period on 
the reinstated proposed listing determination closed on April 25, 2002. 
The public comment period is reopened, and we will accept comments 
until July 29, 2002. Comments must be received by 5:00 p.m. on the 
closing date. Any comments that are received after the closing date may 
not be considered in the final decision on this action. The public 
hearings will be held on June 19, 2002, from 1:00 p.m. to 3:00 p.m. and 
from 6:00 p.m. to 8:00 p.m. in El Centro, California.

ADDRESSES: Public Hearings: The public hearings will be held at 
Southwest High School Performing Arts Theatre, 2001 Ocotillo Drive, El 
Centro, CA.
    Comments: If you wish to comment on the reinstated proposed rule or 
provide additional information concerning the status and distribution 

[[Page 37753]]

the species, as well as information pertaining to threats to the 
species or its habitat, you may submit your comments and materials by 
any one of several methods:
    1. You may submit written comments and information by mail or hand 
delivery to Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad 
Fish and Wildlife Office, 2730 Loker Avenue West, Carlsbad, CA 92008.
    2. You may send comments by electronic mail (e-mail) to 
fthl@r1.fws.gov. Please submit comments in ASCII file format and avoid 
the use of special characters and encryption. Please include your name 
and return e-mail address in your e-mail message. Please note that the 
e-mail address will be closed out at the termination of the public 
comment period. If you do not receive confirmation from the system that 
we have received your e-mail message, contact us directly by calling 
our Carlsbad Fish and Wildlife Office at telephone number 760/431-9440.
    Document Availability: Comments and materials received, as well as 
supporting documentation used in the preparation of the proposed rule 
and subsequent withdrawal, and additional information obtained since 
the withdrawal that will be used for this final determination are 
available for public inspection, by appointment, during normal business 
hours at the Carlsbad Fish and Wildlife Office at the above address.

FOR FURTHER INFORMATION CONTACT: Douglas Krofta, Branch Chief, Listing, 
or Sandy Vissman, Wildlife Biologist, Carlsbad Fish and Wildlife Office 
(see ADDRESSES section; telephone 760/431-9440; facsimile 760/431-

SUPPLEMENTARY INFORMATION: The flat-tailed horned lizard is a small, 
cryptically colored lizard that reaches a maximum adult body length 
(excluding the tail) of approximately 81 millimeters (3.2 inches). The 
lizard has a flattened body, short tail, and dagger-like head spines 
like other horned lizards. It is distinguished from other horned 
lizards in its range by a dark vertebral stripe, two slender elongated 
occipital spines, and the absence of external ear openings. The upper 
surface of the flat-tailed horned lizard is pale gray to light rusty 
brown. The underside is white and unmarked, with the exception of a 
prominent umbilical scar.
    The flat-tailed horned lizard is endemic (restricted) to the 
Sonoran Desert in southern California and Arizona and in northern 
Mexico. The species inhabits desert areas of southern Riverside, 
eastern San Diego, and Imperial counties in California; southwestern 
Arizona; and adjacent regions of northwestern Sonora and northeastern 
Baja California Norte, Mexico. Within the United States, populations of 
the flat-tailed horned lizard are concentrated in portions of the 
Coachella Valley, Ocotillo Wells, Anza Borrego Desert, West Mesa, East 
Mesa, and the Yuma Desert in California; and the area between Yuma and 
the Gila Mountains in Arizona. The flat-tailed horned lizard occurs at 
elevations up to 520 meters (m) (1,700 feet (ft)) above sea level, but 
most populations are below 250 m (820 ft) elevation.
    According to Hodges (1997), approximately 51.2 percent of the 
historic range of the flat-tailed horned lizard habitat within the 
United States remains. This remaining habitat includes an estimated 
503,500 hectares (ha) (1,244,000 acres (ac)) of habitat in the United 
States, of which approximately 56,800 ha (140,300 ac) occur in Arizona 
and 446,670 ha (1,103,800 ac) occur in California. Within this range, 
the lizard typically occupies sparsely vegetated, sandy desert 
flatlands with low plant species diversity, but it is also found in 
areas with small pebbles or desert pavement, mud hills, dunes, alkali 
flats, and low, rocky mountains.
    Based on information obtained since the withdrawal of the proposed 
listing rule and the information documented in the proposed rule 
itself, threats to the flat-tailed horned lizard may include one or 
more of the following: commercial and residential development, 
agricultural development, off-highway vehicle activity, energy 
developments, military activities, introduction of nonnative plants, 
pesticide use, and border patrol activities along the United States-
Mexico border.
    In 1982, we first identified the flat-tailed horned lizard as a 
category 2 candidate species for listing under the Act (47 FR 58454). 
Service regulations defined category 2 candidate species as ``taxa for 
which information in the possession of the Service indicated that 
proposing to list as endangered or threatened was possibly appropriate, 
but for which sufficient data on biological vulnerability and threats 
were not currently available to support proposed rules.'' In 1989, we 
elevated the species to category 1 status (54 FR 554). Category 1 
included species ``for which the Service has on file sufficient 
information on biological vulnerability and threat(s) to support 
issuance of a proposed rule.'' Subsequently, on November 29, 1993, we 
published 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 United States District Court for the 
District of Arizona ordered us to issue a final listing decision within 
60 days. A month after the District Court's order, several State and 
Federal agencies signed a Conservation Agreement (CA) implementing a 
recently completed range-wide management strategy to protect the flat-
tailed horned lizard. Pursuant to the CA, 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 issued a final decision to withdraw the 
proposed rule to list the flat-tailed horned lizard as a threatened 
species (62 FR 37852). The withdrawal was based 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 had grown less serious since the proposed rule was 
issued; and (3) the belief 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 United States 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. On October 24, 2001, the District 
Court ordered us to reinstate the previously effective proposed listing 
rule within 60 calendar days and to make a final listing decision 
within 12 months of reinstating the proposed listing. On December 26, 
2001, we published a notice announcing the reinstatement of the 1993 
proposed listing of 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).
    This notice announces the reopening of the public comment period on 
this proposed rulemaking. The public comment period is being opened for 
60 days to hold public hearings on the proposed listing of the flat-
tailed horned

[[Page 37754]]

lizard as a threatened species, accept public comment on the reinstated 
proposed rule, and collect updated information concerning its ecology 
and distribution, threats, conservation/management actions, and any 
additional available information to assist us in making a final listing 
determination based on the best scientific and commercial data 
    We are specifically seeking information about the flat-tailed 
horned lizard and its habitat concerning: (1) threats to the species as 
a whole or to local populations and its habitat, (2) the size, number, 
and/or distribution of known populations, (3) sufficiency of current 
conservation/management and regulatory mechanisms for the flat-tailed 
horned lizard and its habitat, and (4) the conservation value of 
different populations across the range of the species.


    The primary author of this notice is Douglas Krofta, Carlsbad Fish 
and Wildlife Office (see ADDRESSES section).


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

    Dated: May 3, 2002.
Thomas O. Melius,
Acting Director, Fish and Wildlife Service.
[FR Doc. 02-13533 Filed 5-29-02; 8:45 am]