[Federal Register Volume 75, Number 40 (Tuesday, March 2, 2010)]
[Proposed Rules]
[Pages 9377-9379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-4071]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R8-ES-2010-0008]
[MO 92210-0-0008-B2]
[RIN 1018-AX07]
Endangered and Threatened Wildlife and Plants; Listing the Flat-
Tailed Horned Lizard as Threatened
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Reinstatement of proposed rule, reopening of comment period,
and notice of public hearings.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), notify the
public of the reinstatement of our November 29, 1993, proposed rule to
list the flat-tailed horned lizard (Phrynosoma mcallii) as threatened
under the Endangered Species Act of 1973, as amended (Act). We also
announce the reopening of a public comment period on the 1993 proposed
rule and the scheduling of public hearings. This action will provide
all interested parties with an additional opportunity to provide
information and submit comments on the 1993 proposed rule.
DATES: Written comments: To ensure consideration of your comments, we
must receive them on or before May 3, 2010.
Public Hearings: The public hearings will take place on March 23,
2010, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. at University of
California, Riverside (UCR) Palm Desert Graduate Center, 75-080 Frank
Sinatra Drive,
[[Page 9378]]
Palm Desert, CA, and on March 24, 2010, from 1 p.m. to 3 p.m. and from
6 p.m. to 8 p.m. at the Radisson Hotel Yuma, 1501 South Redondo Center
Drive, Yuma, AZ.
ADDRESSES: Written comments: You may submit comments and information by
one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Search for Docket No. FWS-R8-ES-2010-0008 and then follow the
instructions for submitting comments.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R8-ES-2010-0008; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
Public Hearings: The public hearings will be held at the University
of California, Riverside (UCR) Palm Desert Graduate Center, 75-080
Frank Sinatra Drive, Palm Desert, CA 92211, and at the Radisson Hotel
Yuma, 1501 South Redondo Center Drive, Yuma, AZ 85365.
We will post all comments and information we receive in writing and
oral testimony offered at the public hearings on http://www.regulations.gov. This generally means that we will post any
personal information you provide us (see the Information Solicited
section below for more information).
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010
Hidden Valley Road, Suite 101, Carlsbad, CA 92011; telephone 760-431-
9440; facsimile 760-431-5901. If you use a telecommunications device
for the deaf (TDD), call the Federal Information Relay Service (FIRS)
at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Information Solicited
This document announces the reinstatement of the 1993 proposed
rule, published in the Federal Register on November 29, 1993 (58 FR
62624), to list the flat-tailed horned lizard as a threatened species,
and reopens the public comment period on this reinstated rulemaking. We
intend any final action resulting from this proposal to be as accurate
as possible. To ensure our determination is based on the best available
scientific and commercial information, we request information on the
flat-tailed horned lizard from governmental agencies, Native American
Tribes, the scientific community, industry, and any other interested
parties. We particularly seek information on:
(1) The species' biology, range, and population trends.
(2) Past and ongoing conservation measures for the species, its
habitat, or both, including how implementation of the Flat-tailed
Horned Lizard Rangewide Management Strategy has affected the species in
the United States.
(3) Conservation measures for the species in Mexico.
(4) The factors that are the basis for making a listing, delisting,
or downlisting determination for a species under section 4(a) of the
Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et
seq.), which are:
(a) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued
existence.
(5) The taxonomic status of this species, or whether any
population segments of the flat-tailed horned lizard are discrete or
significant under our February 7, 1996, policy regarding the
recognition of distinct vertebrate population segments (61 FR 4722).
(6) The potential effects global climate change may have on the
flat-tailed horned lizard or its habitat.
You may submit your information concerning the proposed rule by one
of the methods listed in the ADDRESSES section. If you submit
information via http://www.regulations.gov, your entire submission--
including any personal identifying information--will be posted on the
website. If you submit a hardcopy that includes personal identifying
information, you may request at the top of your document that we
withhold this personal identifying information from public review.
However, we cannot guarantee that we will be able to do so. We will
post all hardcopy submissions on http://www.regulations.gov.
Information and materials we receive, as well as supporting
documentation we used in preparing previous listing determinations for
the species, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours,
at the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife
Office (see FOR FURTHER INFORMATION CONTACT). If you submitted comments
or information previously on the proposed rule or during any of the
previous open comment periods related to this proposed rule, please do
not resubmit them. These comments have been incorporated into the
public record and will be fully considered in the preparation of our
final determination.
Public Hearings
We have scheduled two public hearings on the proposed rule. They
will be held on the date listed in the DATES section at the address
listed in the ADDRESSES section.
Anyone wishing to make an oral statement at a public hearing for
the record is encouraged to provide a written copy of their statement
to us at that hearing. In the event there is a large attendance, the
time allotted for oral statements may be limited. Speakers can sign up
only at the hearings. Oral and written statements receive equal
consideration. There are no limits on the length of written comments
submitted to us. If you have any questions concerning the public
hearing or need reasonable accommodations to attend and participate in
the public hearing, please contact the person listed in the FOR FURTHER
INFORMATION CONTACT section as soon as possible, but no later than 1
week before the hearing date, to allow sufficient time to process
requests.
Previous Federal Actions
On November 29, 1993, we published in the Federal Register a
proposed rule to list the flat-tailed horned lizard as a threatened
species under the Act (58 FR 62624). On July 15, 1997, we published in
the Federal Register a final determination to withdraw the proposed
rule to list the flat-tailed horned lizard as a threatened species (62
FR 37852) based on various considerations including a reduction of
threats to the species on public land and the existence of the Flat-
tailed Horned Lizard Rangewide Management Strategy.
The Defenders of Wildlife filed a complaint in the U.S. District
Court for the Southern District of California challenging our 1997
withdrawal of the proposed rule. On June 16, 1999, the District Court
upheld our decision to withdraw the proposed listing rule. The District
Court's decision was appealed and on July 31, 2001, and the Ninth
Circuit Court of Appeals vacated the previous ruling of the District
Court. In accordance with the Appeals Court's ruling, we published a
document in the Federal Register on December 26, 2001, reinstating the
1993 proposed rule and opening a 120-day public comment period (66 FR
66384).
Subsequently, we reopened the comment period on the 1993 proposed
rule twice, once on May 30, 2002 (67 FR 37752) and again on September
24, 2002 (67 FR 59809).
[[Page 9379]]
On January 3, 2003, we again published in the Federal Register a
decision to withdraw the November 29, 1993, proposed rule to list the
flat-tailed horned lizard as a threatened species (68 FR 331). The
Service found the lizard to be in danger of extirpation in the
Coachella Valley; however, we determined that the Coachella Valley is
not a significant portion of the species' range. We concluded in the
January 3, 2003, withdrawal that the flat-tailed horned lizard
populations on either side of the Imperial Valley/Salton Sea and in
Arizona were not likely to become endangered in the foreseeable future
and that listing the species was not warranted.
The Tucson Herpetological Society and others filed a complaint with
the District Court for the District of Arizona challenging the January
3, 2003, withdrawal of the proposed rule. In a ruling issued on August
30, 2005, the District Court for the District of Arizona issued an
order granting plaintiffs' motion for summary judgment, citing our
failure to specifically evaluate the lost habitat of the flat-tailed
horned lizard, and whether the amount of lost habitat represented a
significant portion of the species' range. On December 7, 2005, we
published a document in the Federal Register reinstating the 1993
proposed rule (70 FR 72776). On March 2, 2006, we reopened the public
comment period on the 1993 proposed rule for the purpose of soliciting
comments and information relevant to the specific issue identified in
the District Court's November 2005 ruling (i.e., whether the flat-
tailed horned lizard's lost historical habitat rendered the species
likely to become in danger of extinction in the foreseeable future
throughout all or a significant portion of its range) (71 FR 10631). We
reopened an additional public comment period on the 2006 Federal
Register notice from April 21, 2006, to May 8, 2006 (71 FR 20637).
After re-examining the lost historical habitat of the flat-tailed
horned lizard in relation to our January 3, 2003, withdrawal, we
determined that the lost historical habitat is not a significant
portion of the species' range, and its loss does not result in the
species likely becoming endangered in the foreseeable future throughout
all or a significant portion of its range. We published our decision to
once again withdraw the November 29, 1993, proposed rule to list the
flat-tailed horned lizard as a threatened species on June 28, 2006 (71
FR 36745).
Following a supplemental complaint from Tucson Herpetological
Society and others challenging the 2006 withdrawal of the proposed rule
to list the flat-tailed horned lizard under the Act, the United States
District Court for the District of Arizona (the District Court) granted
summary judgment in favor of the Secretary of the Interior; however,
this ruling was appealed to the Court of Appeals for the Ninth Circuit.
In a ruling issued on May 18, 2009, the Court of Appeals for the Ninth
Circuit reversed the District Court's ruling when it determined that in
the context of the analysis of whether the lizard's lost historical
range constituted a significant portion of the species' range, the
administrative record did not support what the Court of Appeals for the
Ninth Circuit viewed as the Service's conclusion that flat-tailed
horned lizard populations were stable and viable throughout most of its
current range.
On November 3, 2009, the District Court remanded the 2006
withdrawal to the Service for further consideration and reinstated the
1993 proposal to list the species. The District Court ordered the
Service to complete this reconsideration within 12 months. The Service
will complete its review of the best available scientific and
commercial information, including information and comments submitted
during this comment period, as part of the remand process. We will then
complete a new listing determination. This document serves to notify
the public of the reinstatement of the 1993 proposed rule, announce
public hearings, and solicit information regarding the species and
threats to it and its habitat.
You may obtain copies of the original 1993 proposed rule, and other
previous Federal actions relating to the flat-tailed horned lizard by
mail from the Carlsbad Fish and Wildlife Office (see FOR FURTHER
INFORMATION CONTACT section), or on the Internet at http://www.fws.gov/Carlsbad, or by visiting the Federal eRulemaking Portal at http://www.regulations.gov.
Author
The primary authors of this notice are the staff members of the
Carlsbad Fish and Wildlife Office (see FOR FURTHER INFORMATION
CONTACT).
Authority
The authority for this action is the Endangered Species Act of
1973, as amended (16 U.S.C. 1531 et seq.).
Dated: February 17, 2010.
Daniel M. Ashe,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-4071 Filed 3-1- 10; 8:45 am]
BILLING CODE 4310-55-S