[Federal Register: September 24, 2002 (Volume 67, Number 185)]
[Proposed Rules]               
[Page 59809-59811]
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: Proposed rule; reopening of comment period.


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 
purpose of reopening the public comment period is to allow for peer 
review of the proposed rule (58 FR 62624) and its subsequent withdrawal 
(62 FR 37852) according to our 1994 Interagency Cooperative Policy for 
Peer Review in Endangered Species Act Activities (59 FR 34270), 
additional public comment on the reinstatement of the proposed listing 
rule, and submission of any additional information that may assist us 
in making a final listing decision. Comments previously submitted need 
not be resubmitted as they have been incorporated into the public 
record and will be fully considered in the final listing determination.

DATES: The public comment period is reopened for a period of 15 days, 
and we will accept comments until October 9, 2002. Comments must be 
received by 5 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.

ADDRESSES: Comment Submission: If you wish to comment on the reinstated 
proposed rule or provide additional information concerning the status 
and distribution of 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 to Field

[[Page 59810]]

    Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and 
    Service, 2730 Loker Avenue West, Carlsbad, CA 92008.
    (2) You may hand-deliver written comments to our Carlsbad Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 2730 Loker Avenue 
West, Carlsbad, CA.
    (3) 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 time of 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.

FOR FURTHER INFORMATION CONTACT: Douglas Krofta, Branch Chief, Division 
of Listing, or Matt McDonald, Wildlife Biologist, Carlsbad Fish and 
Wildlife Office (see ADDRESSES; telephone 760/431-9440; facsimile 760/
431-9624). Information is available in alternate formats upon request.

    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 
    The flat-tailed horned lizard is endemic (restricted) to the 
Sonoran Desert in southern California and Arizona and 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) (1700 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) (1,244,00 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 District Court in 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 District Court for the Southern District of 
California granted summary judgement 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, thereafter, commence a 12-month statutory 
time schedule for a final listing decision. 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). On May 30, 2002, we published a notice announcing the 
reopening of the public comment period to allow for the submission of 
additional public comment and information to assist us in making a 
final listing determination (67 FR 37752).

[[Page 59811]]

    This notice announces the reopening of the public comment period on 
this reinstated rulemaking for 15 days to allow for peer review of the 
proposed rule (58 FR 62624) and its subsequent withdrawal (62 FR 37852) 
according to our Peer Review Policy (59 FR 34270), accept public 
comment on the reinstated proposed rule, and collect updated 
information concerning the species 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 available.
    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 distribution of known populations; (3) sufficiency of current 
conservation/management and/or 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).

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

    Dated: September 3, 2002.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 02-24025 Filed 9-23-02; 8:45 am]