[Federal Register: December 26, 2001 (Volume 66, Number 247)]
[Proposed Rules]               
[Page 66384-66385]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants, Notice of 
Reinstatement of the 1993 Proposed Listing of the Flat-tailed Horned 
Lizard as a Threatened Species and the Reopening of The Comment Period 
on The Proposed Rule

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of reinstatement of proposed rule.


SUMMARY: We, the U.S. Fish and Wildlife Service (Service) announces the 
reinstatement of the 1993 proposed listing of the flat-tailed horned 
lizard (Phrynosoma mcallii) as a threatened species, and the reopening 
of the public comment period on this proposed listing. On November 29, 
1993, we published a rule proposing threatened status for the flat-
tailed horned lizard, pursuant to the Endangered Species Act of 1973, 
as amended (Act). On July 15, 1997, we withdrew the proposed rule to 
list the flat-tailed horned lizard as threatened based on information 
available at that time. On July 31, 2001, the Ninth Circuit Court of 
Appeals vacated an earlier ruling from the District Court for the 
Southern District of California that upheld the withdrawal of the 
proposed listing of the lizard as threatened. Moreover, the Ninth 
Circuit directed the District Court to remand the withdrawal decision 
to the Service for consideration in accord with the legal standards 
outlined in its opinion. On October 24, 2001, the District Court 
remanded the matter to the Service and, with the parties consent, 
ordered the Service to reinstate the 1993 proposed listing for the 
flat-tailed horned lizard within 60 calendar days, and complete the 
final listing decision within 12 months from the date of reinstatement. 
Consequently, we are hereby providing notice that the 1993 proposed 
rule for the flat-tailed horned lizard is reinstated, and that we will 
complete a final listing decision for the flat-tailed horned lizard by 
December 26, 2002.
    In addition, we are reopening the public comment period for 120 
days on the 1993 proposed listing rule to obtain information concerning 
the current status, ecology, distribution, threats to, and management/
conservation efforts in place for the flat-tailed horned lizard to make 
a new final listing determination based on the best scientific and 
commercial data currently available.

DATES: We will consider comments on this proposal received by the close 
of business on April 25, 2002. Any comments that are received after the 
closing date may not be considered in the final decision on this 
action. Requests for a public hearing must be received by February 11, 

ADDRESSES: Comments: If you wish to comment on the reinstated proposed 
rule or provide additional information concerning the status of the 
species, you may submit your comments and materials by any one of 
several methods: You may submit written comments and information to 
Field Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 2730 Loker Avenue West, Carlsbad, California 92008. 
You may hand-deliver written comments to our Carlsbad Fish and Wildlife 
Office, U.S. Fish and Wildlife Service, 2730 Loker Avenue West, 
Carlsbad, California 92008. You may send comments by electronic mail 
(e-mail) to fthl@r1.fws.gov.
    For further information or a copy of the proposed rule contact: Ms. 
Sandy Vissman or Mr. Christopher Otahal, Carlsbad Fish and Wildlife 
Office, at the above address (telephone 760-431-9440; facsimile 760-

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

[[Page 66385]]

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) (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-
Mexican border.
    In 1982, we first identified the flat-tailed horned lizard as a 
category 2 candidate 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 (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, 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 the 
Service's 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 the Service for further consideration in accord with the legal 
standards outlined in its opinion. 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.
    This notice announces the reinstatement of the 1993 proposed rule 
to list the flat-tailed horned lizard as a threatened species, and 
reopens the public comment period on this reinstated rulemaking. The 
public comment period is being opened for 120 days to accept public 
comment on the reinstated proposed rule to list the flat-tailed horned 
lizard as a threatened species and gather 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 available.
    We are specifically seeking information that has become available 
concerning the flat-tailed horned lizard since the last public comment 
period on the proposed rule which closed on June 9, 1997. Information 
is particularly requested concerning: (1) Threats to the species as a 
whole or to local populations, (2) the size, number, and/or 
distribution of known populations, (3) sufficiency of current 
conservation/management and/or regulatory mechanisms for the flat-
tailed horned lizard, and (4) the conservation value of different 
populations across the range of the species.
    Please send written comments to the address listed above (see 
ADDRESSES section). When submitting comments via e-mail, 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.
    Comments and materials received, as well as supporting 
documentation used in the preparation of the proposed rule and 
subsequent withdrawal, will be available for public inspection, by 
appointment, during normal business hours at the Carlsbad Fish and 
Wildlife Office.
    Author: The primary author of this notice is Mr. Christopher 
Otahal. (see ADDRESSES section).

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

    Dated: December 10, 2001.
Steve Thompson,
Acting Manager, California/Nevada Operations Office, Region 1.
[FR Doc. 01-31734 Filed 12-21-01; 8:45 am]