        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 73
        [DA 03-2930, MB Docket No. 03-210, RM-10791]
        Digital Television Broadcast Service; Elmira, NY

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          The Commission requests comments on a petition filed by Smith Television of New York License Holdings, Inc., licensee of station WETM-TV, requesting the substitution of DTV channel 33 for DTV channel 2. DTV Channel 33 can be allotted to at reference coordinates 42-06-22 N. and 76-52-17 W. with a power of 525, a height above average terrain HAAT of 363 meters. Since the community of Elmira is located within 400 kilometers of the U.S.-Canadian border, concurrence from the Canadian government must be obtained for this allotment.

          DATES:
          Comments must be filed on or before November 24, 2003, and reply comments on or before October 1, 2003.

          ADDRESSES:

          The Commission permits the electronic filing of all pleadings and comments in proceedings involving petitions for rule making (except in broadcast allotment proceedings). See Electronic Filing of Documents in Rule Making Proceedings, GC Docket No. 97-113 (rel. April 6, 1998). Filings by paper can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Vistronix, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. 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 mail, Express Mail, and Priority Mail should be addressed to 445 12th Street SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission, Washington, DC 20554. In addition to filing comments with the FCC, interested parties should serve the petitioner, or its counsel or consultant, as follows: Brad C. Deutsch, Hogan & Hartson LLP, 555 Thirteenth Street, NW., Washington, DC 20004-1109 (Counsel for Smith Television of New York License Holdings, Inc.).

          FOR FURTHER INFORMATION CONTACT:
          Pam Blumenthal, Media Bureau, (202) 418-1600.

        SUPPLEMENTARY INFORMATION:

        This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 03-210, adopted September 23, 2003, and released October 1, 2003. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile (202) 863-2898, or via e-mail: qualexint@aol.com.

        Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

        Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

        For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

          List of Subjects in 47 CFR Part 73
          Digital television broadcasting, Television.

        For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

          PART 73—RADIO BROADCAST SERVICES
          1. The authority citation for part 73 continues to read as follows:

            Authority:
            47 U.S.C. 154, 303, 334 and 336.

            § 73.622
            [Amended]
            2. Section 73.622(b), the Table of Digital Television Allotments under New York is amended by removing DTV channel 2 and adding DTV channel 33 at Elmira.

            Federal Communications Commission.
            Barbara A. Kreisman,
            Chief, Video Division, Media Bureau.

      [FR Doc. 03-25334 Filed 10-6-03; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 571
        [Docket No. NHTSA-02-13957; Notice 01]
        RIN 2127-AI97
        Glare from Headlamps and Other Front-Mounted Lamps: Adaptive Frontal-lighting Systems Federal Motor Vehicle Safety Standard No. 108; Lamps, Reflective Devices, and Associated Equipment

          AGENCY:
          National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

          ACTION:
          Request for comments.

          SUMMARY:
          This document requests comments on Adaptive Frontal-lighting Systems (AFS). The automotive industry is introducing Adaptive Frontal-lighting Systems that can actively change the intensity and direction of headlamp illumination in response to changes in vehicle speed or roadway geometry, such as providing more light to the left in a left-hand curve. The agency is concerned that such headlighting systems may cause additional glare to oncoming drivers, change the easily recognizable and consistent appearance of oncoming vehicles, and have failure modes that may cause glare for long periods of time. The agency is also interested in learning whether these adaptive systems can provide any demonstrated reduction in crash risk during nighttime driving. Thus, the Agency is seeking information on these systems to assess their potential for a net increase or decrease in the risk of a crash. Of special interest to us are the human factors and fleet study research that may have been completed to assure these systems do not increase the safety risk for oncoming and preceding drivers.

          DATES:
          Comments must be received on or before April 14, 2003.

          ADDRESSES:

          Comments must refer to the docket and notice number cited at the beginning of this notice and be submitted to: Docket Management, Room PL-401, 400 Seventh Street SW., Washington, DC 20590. It is requested, but not required, that two copies of the comments be provided. The Docket Section is open on weekdays from 10 a.m. to 5 p.m. Comments may be submitted electronically by logging onto the Dockets Management System Web site at http://dms.dot.gov. Click on “Help” to obtain instructions for filing the document electronically.

          FOR FURTHER INFORMATION CONTACT:
          For technical issues, please contact Mr. Richard L. Van Iderstine , Office of Rulemaking, NHTSA, 400 Seventh Street, SW., Washington, DC 20590. Mr. Van Iderstine's telephone number is (202) 366-2720 and his facsimile number is (202) 366-4329. For legal issues please contact Mr. Taylor Vinson, Office of Chief Counsel, at the same address. Mr. Vinson's telephone number is (202) 366-5263.

        SUPPLEMENTARY INFORMATION:
        The development of Adaptive Frontal-lighting Systems (AFS) has been ongoing for about a decade. However, there are much earlier versions of such situation-adaptive headlighting that have been sold to the public. In the United States, the Tucker automobile was equipped with one, and in Europe, Citron manufactured automobiles with them, too. These had headlamps that would swivel with the steering system. In 1993, funded by the European Union's Eureka Project EU 1403, member countries and their manufacturers (BMW, Bosch, Daimler-Benz, Fiat, Ford, Hella, Magneti-Marelli, Opel, Osram, Philips, PSA, Renault, Valeo, Volkswagen, Volvo, and ZKW) began defining requirements for AFS. Additionally, Japanese and North American manufacturers have been developing these systems. The goal of these AFS is to actively control headlamp beam pattern performance to meet the dynamic illumination needs of changing roadway geometries and visibility conditions.
        Today, this goal has been partially realized by several lighting manufacturers who have developed systems incorporating various aspects of AFS functionality. An initial application, called “bending light,” automatically reaims the lower beam headlamps to the left or right depending on the steering angle of the vehicle, with the intent to better illuminate curves in the roadway. Also, it is likely that these initial bending light offerings will have part of the light emitted from the headlamp move within the beam to the left or right to increase the amount of light shining into the curve. There are other ideas being explored that, for example, would reduce the intensity of illumination in well-lit urban driving situations, reduce the intensity of lower beam foreground light in wet weather to lessen the light that reflects off the roadway into other drivers' eyes, and various other performance changes.
        Prototype systems have been demonstrated by motor vehicle lighting companies to motor vehicle manufacturers, and recently to government lighting experts from numerous countries around the world. This was last done in Geneva, Switzerland in the Spring of 2000, during the Forty-Fourth Session of the Meeting of Experts on Lighting and Light Signalling (GRE) where ten different AFS prototypes were available on cars for driving. The GRE is a subgroup of the United Nations' (UN) World Forum for Harmonization of Vehicle Regulations (WP.29).

        In order to introduce this new headlighting technology in Europe, regulations have to be modified within the UN Economic Commission for Europe, under its 1958 Agreement titled: “Agreement concerning the Adoption of Uniform Technical Prescriptions (Rev.2).” The first amendment to accommodate swiveling (or bending) of the low beam function in these regulations is scheduled for final voting at the March 2003 session of WP.29. AFS installation on motor vehicles in the European market could occur sometime after approval by WP.29. The second stage is forecast to be considered for approval in 2005. This could include roadway illumination for specific situations, such as highway, suburban, urban roads, inclement weather, and additional cornering lighting whose technical descriptions may be found in the formal draft document presented to the GRE (see TRANS/WP.29/GRE/2002/18—Proposal for a New Draft Regulation: “Uniform Provisions Concerning the Approval of Adaptive Frontlighting System (AFS) for Motor Vehicles” at http://www.unece.org/trans/main/wp29/wp29wgs/wp29gre/grenwdoc/gre0218e.pdf).

        AFS implementation by U.S. vehicle manufacturers in North America currently is in the development stage. However, foreign manufacturers could begin marketing the bending function in the United States in the near future. Under Federal Motor Vehicle Safety Standard No. 108, Lamps, reflective devices and associated equipment, the bending light performance (by automatically reaiming the lamp) is not prohibited because the Standard does not specifically address the initial or subsequent aim of a headlamp in a headlighting system. The Standard addresses only aimability requirements. See the letter from the Chief Counsel, NHTSA, to Mr. Mark Cronmiller, VDO North America, dated July 7, 1999 (http://www.nhtsa.dot.gov/cars/rules/interps/files/20061.ztv.html). Mr. Cronmiller had asked about future “smart” headlighting systems that adjust headlamp aim vertically and/or horizontally according to driving conditions (e.g., vertically for oncoming traffic, horizontally around curves in the road). The Chief Counsel responded that paragraph S7.8 of Standard No. 108 prescribes headlamp aiming hardware requirements under static conditions only. Once a headlamp is installed on a vehicle, its aim is fixed, but may be adjustable by mechanical means when the vehicle is at rest. A limited ability to adjust vertical aim on some vehicles is also provided by vehicle leveling devices. Standard No. 108 does not require that headlamps be aimed at the time the vehicle is manufactured and certified as conforming to all applicable Federal motor vehicle safety standards. If there is a requirement for correct headlamp aim on new vehicles, it would be that of a State's motor vehicle authority at the time the vehicle is first registered for highway use in that State. The letter continued by saying that, if a “smart” headlamp system meets the static aiming hardware requirements of Standard No. 108, a dynamic aiming feature is permissible. We also said that at that time that we had no specific plans to regulate or require headlamps with dynamic aim features, but were monitoring them to form an impression as to their suitability for use under American driving conditions, and to learn if there are any problems of maintenance of aiming integrity, or durability, involved in their use. At a minimum, we would be concerned about the need for fail-safe performance to assure that aim would return to nominally correct, straight ahead in the event of a failure.
        We note that S5.3.1.1 of Standard No. 108 also requires that lamps and reflective devices must be installed such that their photometric requirements are met on motor vehicles and that no other part of the vehicle shall prevent that. As such, the additional hardware added to achieve AFS must not prevent headlamps, or any other required lamps, from meeting the required performance in any manner whether AFS is operating or not. Additionally, for the bending light mechanization where some of the light in the nominal beam pattern is actively redirected, the photometric requirements of the headlamp must be met regardless of active changes in the light distribution within the beam.
        The balance between roadway illumination and glare is something that has always concerned us. The public shares our concern, too, as evidenced by the unprecedented response to Docket 8885, NHTSA's docket on glare from headlamps. Besides the more than four thousand comments to date, that docket has the highest number of Internet visits of all dockets in the DOT Docket Management System: more than 64,000 hits. The public's concern is that glare is increasing at an alarming rate whether from approaching vehicles or rear view mirrors. Thus, the agency is concerned whether the implementation of AFS will produce a volume of complaints similar to those in Docket 8885 regarding the installations of high intensity discharge, high-mounted, and supplemental headlamps.
        Given this concern, we have a number of questions for drivers, and the lighting and the motor vehicle industries, relative to the safety, implementation and use of AFS, especially as it may be offered to the U.S. market. These questions are:
        Questions for Drivers

          Question 1: Do you have problems seeing around curves because of the limitations of the headlamps on the vehicles that you drive, or because of glare from an approaching vehicle? Please describe the problems, including road, ambient lighting, and weather conditions.

          Question 2: Is the glare that you described above worse than the glare from vehicles approaching on straight roads? Is it because the light is brighter or because it is longer lasting?

          Question 3: Under what nighttime driving conditions have you thought you needed extra headlight illumination to help you see the road, signs, or objects: When turning at intersections, when driving on curved roads, at intersections, driving in rain, when driving in fog, when driving on interstate highways, driving in cities, etc.?

          Question 4: Under what nighttime driving conditions have you thought that the oncoming headlights seemed more glaring than usual: On right-hand curves, on left-hand curves, on high-speed roads, at intersections in cities, on hilly roads?

          Question 5: What types of objects are most difficult for you to see when driving at night: Pedestrians, lane markings, street signs, stop signs, overhead guide signs, debris on road, animals, etc.?

          Question 6: For a “bending light” AFS that added more illumination to the right side on right-hand curves and to the left on left-hand curves, what aspects of lamp design concern you the most: That lamp failure might reduce visibility; that added light on left-hand curves would increase glare to oncoming drivers; that the motion of the lights would be annoying; that the added light would not be bright enough to significantly increase the visibility distance.

          Question 7: If a headlighting rating were available for new vehicles in the same manner as crashworthiness and rollover star ratings, would you use these headlighting ratings in the decisions that lead to your purchase of a new vehicle? On a scale of 1 to 10 with 1 being of little value and 10 being extremely important, how might you rate the importance of the headlamp rating, if available, to your purchase decision for a new vehicle?
        Questions for Industry

          Question 8: Have manufacturers evaluated prototype AFS-equipped vehicles at night to determine whether changes in the intensity and direction of illumination may cause misdirection of any driver's gaze toward the newly lighted or intensified area, or away from objects that are still important for driving safety? Please describe the evaluations and provide copies if available.

          Question 9: Do moving beams (from bending light or the increase or decrease in intensity) either increase or decrease the level of driver fatigue compared to non-AFS lighting? Please provide all available research information about this issue.

          Question 10: Have vehicle manufacturers evaluated prototype AFS-equipped vehicles at night as occupants of other vehicles to evaluate the potential glare from AFS? If so, please describe the evaluation and the results. Are there other assessment methods used to assess the glare from the AFS before vehicle manufacturers commit to a particular AFS design? Please provide the results of all alternative assessments conducted for AFS.

          Question 11: What assessment is made of potential glare from AFS at points in the beam pattern that are currently unregulated?

          Question 12: Are there any current lamp or vehicle manufacturer corporate design guidelines for AFS that deal with unregulated points in the beam pattern? If so, please indicate what those guidelines are and explain why the manufacturer believes they are appropriate.

          Question 13: To what extent do lamp and vehicle manufacturers consider the reports and work by the Society of Automotive Engineers and other non-governmental bodies on the subject of glare in designing the performance of AFS on their vehicles? In answering this question, manufacturers are asked to provide a list of the reports, papers and data that they found useful in establishing design guidelines. Please provide specific examples of internal glare limits that have been adopted as a result of these references.

          Question 14: While we are aware of many studies to demonstrate and promote the efficacy of AFS, we are not aware of a single study that has been done on the effects on other drivers facing AFS-equipped vehicles or on drivers using AFS-equipped vehicles. Please identify any such studies.

          Question 15: Has glare been studied specifically for younger and older drivers facing or preceding the various modes of AFS operation on vehicles? If so, please list the studies.

          Question 16: Has diminished recognition of presence, or the perception of distance or closure rate to an oncoming AFS vehicle ever been studied? If so, please list the studies and findings.

          Question 17: What fail-safe features for each possible mode of AFS operation have been developed and studied that will prevent glare to oncoming and preceding drivers? Please describe them.

          Question 18: What fail-safe features for each possible mode of AFS operation have been developed and studied that will prevent no greater risk to the driver using it than when non-AFS headlighting fails?

          Question 19: What studies have been done to demonstrate whether AFS adds safety value? What value is that and how was it measured? Please identify and provide the findings of such studies.

          Question 20: What are the anticipated incremental costs of adding the various designs of AFS features to halogen headlighting systems?

          Question 21: What are the anticipated incremental costs of adding the various designs of AFS features to high intensity discharge headlighting systems?

          Question 22: What are the anticipated incremental costs of adding the various designs of AFS features to light emitting diode headlighting systems?

          Question 23: Presumably, the added illumination in curves is intended to reduce the risk of a crash. However, because most crashes are on straight roads (because of the predominance of straight roads), how does the presumed incremental benefit compare to the added cost of AFS? Does the incremental benefit outweigh the potential for additional glare to oncoming or preceding drivers in a curve or intersections or during an AFS failure? Why?

          Question 24: Should AFS designs be incorporated as separate, regulated lighting systems that operate independently of the primary headlighting system?

          Question 25: Given that known AFS prototype designs are intended to use more headlamp replaceable light sources than currently permitted, should AFS headlamps be limited in total luminous flux?

          Question 26: Should AFS headlamps have unlimited luminous flux if automatic headlamp leveling and cleaning are incorporated, as currently mandated in Europe for headlamps that have light sources that are rated at 2000 lumen or more?

          Question 27: What is the feasibility of reducing the intensity of AFS lamps during low speed, dense traffic, or high ambient illumination conditions? Please describe how this might be accomplished.

          Question 28: Are there requirements in Standard No. 108 that are barriers to the implementation of AFS? If there are barriers, in accordance with the published lighting policy of the agency (see NHTSA docket 98-4281, at: http://dms.dot.gov/search/document.cfm?documentid=46284&docketid=4281), what data exist showing safety benefits to justify amending the Standard to permit AFS?

          Question 29: Should AFS be mandatory? What data exists showing safety benefits to justify amending the Standard to require AFS? If not mandatory, why not?

          Question 30: Should AFS be permitted as a replacement for non-AFS headlighting systems. If so, why, and what safeguards are necessary beyond that necessary for new OEM installations? If not, why not?
        Rulemaking Analyses and Notices
        Executive Order 12866 and DOT Regulatory Policies and Procedures
        This request for comment was not reviewed under Executive Order 12866 (Regulatory Planning and Review). NHTSA has analyzed the impact of this request for comment and determined that it is not significant within the meaning of the Department of Transportation's regulatory policies and procedures. The agency anticipates if a proposal and ultimately a final rule should result from this request for comment, new requirements would apply to the applicable vehicles and items after the specified implementation date. The request for comment seeks to determine the ramifications of the introduction of adaptive frontal headlighting systems that are intended to enhance safety under a variety of driving conditions. The systems do so by varying the performance and aim of each headlamp's beam in a manner coincident with providing, for example, more illumination in the direction of a motor vehicle's turn, and other situations where the vehicle's manufacturer deems that more or less light is desired by the driver.
        How do I Prepare and Submit Comments?
        Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.

        Your comments must not be more than 15 pages long (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

        Please submit two copies of your comments, including the attachments, to Docket Management at the address given at the beginning of this document, under ADDRESSES.

        How can I be Sure that my Comments were Received?
        If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.
        How do I Submit Confidential Business Information?

        If you wish to submit any information that you do not want to be made public, under a claim of confidentiality, you should submit three copies of your complete submission to the Chief Counsel, NHTSA, at the address given at the beginning of this document under FOR FURTHER INFORMATION CONTACT. This submission must include the information that you are claiming to be private, that is, confidential business information. In addition, you should submit two copies from which you have deleted the private information, to Docket Management at the address given at the beginning of this document under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter that provides the information specified in our confidential business information regulation, 49 CFR part 512.
        Will the Agency Consider Late Comments?

        We will consider all comments that Docket Management receives before the close of business on the comment closing date indicated at the beginning of this notice under DATES. To the extent possible, we will also consider comments that Docket Management receives after that date. If Docket Management receives a comment too late for us to consider in developing a proposed response to these glare issues, we will consider that comment as an informal suggestion for future rulemaking action.
        How Can I Read the Comments Submitted by Other People?

        You may read the comments received by Docket Management at the address and times given near the beginning of this document under ADDRESSES.
        You may also see the comments on the Internet. To read the comments on the Internet, take the following steps:

        (1) Go to the Docket Management System (DMS) Web page of the Department of Transportation (http://dms.dot.gov/).
        (2) On that page, click on “search.”
        (3) On the next page (http://dms.dot.gov/search/), type in the multi-digit docket number shown at the heading of this document. In this case, the docket number is “NHTSA-2001-13957”, you would type “13957”.
        (4) After typing the docket number, click on “search”.
        (5) The next page contains docket summary information for the docket you selected. Click on the comments you wish to see.
        You may download the comments. Although the comments are imaged documents, instead of the word processing documents, the “.pdf” versions of the documents are word searchable. Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically search the Docket for new material.

          Authority:
          49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegations of authority at 49 CFR 1.50, and 501.8.

          Issued on: February 6, 2003.
          Stephen R. Kratzke,
          Associate Administrator for Rulemaking.

      [FR Doc. 03-3505 Filed 2-11-03; 8:45 am]
      BILLING CODE 4910-59-P


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition To List the Uinta Mountainsnail as Endangered

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Notice of 90-day petition finding.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce a 90-day finding on a petition to list the Uinta mountainsnail (Oreohelix eurekensis uinta) as endangered under the Endangered Species Act of 1973, as amended (Act). We find that the petition does not present substantial scientific or commercial information indicating that listing O. e. uinta may be warranted. This finding is based on our determination that there is insufficient evidence to indicate that O. e. uinta is a valid subspecies, and, therefore, cannot be considered a listable entity pursuant to section 3(15) of the Act. Therefore, we will not initiate a status review in response to this petition. However, the public may submit to us new information concerning the status of or threats to O. e. uinta at any time.

          DATES:
          The finding announced in this document was made on November 7, 2005.

          ADDRESSES:
          The complete file for this finding is available for public inspection, by appointment, during normal business hours at the Utah Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2369 West Orton Circle, Suite 50, West Valley City, Utah 84119. Submit new information, materials, comments, or questions concerning the status of or threats to this taxon to us at the above address.

          FOR FURTHER INFORMATION CONTACT:

          Henry Maddux, Field Supervisor, Utah Fish and Wildlife Office (see ADDRESSES) (telephone 801-975-3330; facsimile 801-975-3331).

        SUPPLEMENTARY INFORMATION:
        Background

        Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial scientific or commercial information to indicate that the petitioned action may be warranted. We are to base this finding on information provided in the petition and other information that is readily available to us (e.g., in our files). To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition, and publish our notice of this finding promptly in the Federal Register.
        Our standard for substantial information within the Code of Federal Regulations (CFR) with regard to a 90-day petition finding is “that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted” (50 CFR 424.14(b)). If we find that substantial information was presented, we are required to promptly commence a review of the status of the species, if one has not already been initiated under our internal candidate assessment process.

        In making this finding, we relied on information provided by the petitioners and evaluated that information in accordance with 50 CFR 424.14(b). We also reviewed additional, readily available information pertinent to O. e. uinta to clarify certain points raised in the petition. We did not conduct additional research or subject the petition to rigorous critical review. Our process of coming to a 90-day finding under section 4(b)(3)(A) of the Act and section 424.14(b) of our regulations is limited to a determination of whether the information in the petition meets the “substantial information” threshold.

        On August 29, 2001, we received a formal petition from the Utah Environmental Congress (UEC) to list O. e. uinta as an endangered species pursuant to section 4 of the Act. Although O. e. uinta was once thought extinct, a small number had been found in the Ashley National Forest, Uinta County, Utah, in 1998. The August 21, 2001, petition was based largely on this discovery. The petition cited threats from grazing, prescribed fire, logging, and sedimentation from U.S. Forest Service (USFS) road-building operations. The petition also requested that critical habitat be designated simultaneously with the listing of O. e. uinta as endangered.

        In letters dated September 17 and October 3, 2001, we denied emergency listing because of measures taken by the Ashley National Forest to protect the population. On July 13, 2004, we received a 60-day notice of intent to sue from UEC and other groups. On January 25, 2005, we received a complaint regarding our failure to make the 90-day and 12-month findings. In light of these legal actions, we discussed various options with the plaintiffs and tentatively agreed to submit a completed 90-day finding to the Federal Register by November 7, 2005.
        Species Information

          Oreohelix eurekensis uinta is in the genus Oreohelix, commonly called the “Mountain Snail.” This genus of land snails is endemic to western North America, with distributions ranging from southwestern Canada, including southern Saskatchewan and British Columbia, to western Chihuahua in northern Mexico (Pilsbry 1939). In terms of the biogeographical distribution of land snails, North America is generally split into Eastern and Western American “Divisions” (Pilsbry 1939), while each division is further divided into land snail provinces (Frest 2002). The biogeographical distribution of Oreohelix includes the Rocky Mountain, Washingtonian, and Southwestern Provinces of the Western Division of North America (Frest 2002).

        Factors determining habitat preferences of land snails include cover, effective moisture availability, and geologic history (Frest 2002). Most land snail species are calciphiles, meaning they are usually restricted to limestone, dolomite, or other substrates containing high levels of the element calcium (Frest 2002). Moist soil conditions are favored and soil pH may be a factor in determining suitable habitat (Frest 2002). Desiccation is the primary factor in mortality (Frest 2002). Moist forests, slope bases, north slopes, springs and seeps, edges of floodplains, and rock talus (a sloping mass of loose rock debris at the base of a cliff) are areas of land snail concentration (Frest 2002). Areas with vegetation or other forms of cover (e.g., rock overhangs and caves) that provide shade also are usually preferred by land snails; abundant downed woody debris is also important (Frest 2002).
        Western land snails are typically herbivores, but some may consume animal matter. Land snails contribute substantially to nutrient recycling, breaking down plant detritus and animal waste (Frest 2002). They are preyed upon extensively by small mammals, reptiles, amphibians, birds, and insects (Frest 2002).

        Land snails are “exceptional indicators” of ecosystem health (Frest 2002). They are present in many environments, have specialized habitat needs, and are essentially sessile (permanently attached or established; not free to move about). Land snails respond quickly and are vulnerable to disturbances or anthropogenic habitat change (Frest 2002).

          Oreohelix species and subspecies vary in size, height of shell spire, degree of carination (i.e., presence and size of a keel or ridge around the outside whorl of the shell), width of umbilicus (i.e., the ventral opening formed in the center of the whorls), and color (Pilsbry 1939). The level of endemism (i.e., the degree to which an organism is restricted to a certain area) among Oreohelix species and subspecies is notable and is believed to be specifically associated with unique geology, soils, and vegetation (Frest 2002). Areas of high endemism include the Hells Canyon area of Oregon, Idaho, and Washington, the lower Salmon River drainage of Idaho, the Wasatch Range in Utah, and northwestern portions of Montana (Frest 2002). Isolated geographic localities, such as “island” mountain ranges, appear to support endemic species of Oreohelix (Frest 2002).
        Distribution
        The genus Oreohelix contains 32 species and 54 subspecies, including Orehelix eurekensis—the species most closely associated with O. e. uinta (Pilsbry 1933). O. eurekensis has been documented in six localities representing four widely separated populations scattered across northern Utah (Oliver and Bosworth 1999).

          O. e. uinta has been positively identified in at least two localities: (1) The Ashley National Forest (NF), Uinta County, Utah (Oliver and Boswerth 2000)—the site identified in the petition; and (2) a more recently discovered site identified as Big Spring site, on the Sheep Creek geological loop on the west side of Flaming Gorge Reservoir, approximately 80 kilometers (50 miles) away from the first site (Bill Stroh, USFS biologist, pers. comm.). No long-term studies have been completed to indicate specific population trends and it is unknown if the populations are increasing or decreasing (Oliver and Bosworth 1999). There is speculation that other populations of O. e. uinta also may exist in the east Tavaputs Plateau region of Utah (George Oliver, Utah Dept. of Wildlife Resources, pers. comm.).

        The Ashley NF site is an open, 45-degree, south-southwest-facing slope of broken limestone and loam. The sparse plant cover of the small area inhabited by Oreohelix eurekensis uinta is predominantly chokecherry (Prunus virgniana), rose (Rosa cf. woodsii), serviceberry (Amelanchier cf. alnifolia), pine (Pinus sp.), Douglas fir (Pseudotsuga menzeisii), thistle (Cirsium sp), and wax currant (Ribes cereum), although nine other species of forbs and two other species of shrubs also are present. Quaking aspen (Populus tremuloides) and sagebrush (Artemisia sp.) are prominent plants of the surrounding parts of the same slope (Oliver and Bosworth 2000). Eighty-four dead shells and three live specimens have been collected at the site and compared to paratype (specimens of the type series other than the holotype) specimen collections to verify their taxon (Oliver and Bosworth 2000).
        Although we have global positioning system (GPS) coordinates for the Big Spring site on the Sheep Creek geological loop, we have little descriptive information on the localities. Eleven small, dead snails were found approximately 3.8 centimeters (1.5 inches) under the surface in one locality, and, in another locality, others were found in dry soil approximately 0.65 centimeter (0.25 inch) under the surface, under a gooseberry. Shells were collected by the USFS on September 25, 2003, and later identified by George Oliver (Utah Department of Wildlife Resources (UDWR)).
        Taxonomy

          Oreohelix eurekensis uinta is in the class Gastropoda, family Oreohelicidae, and genus Oreohelix. Oreohelix eurekensis was originally described as Oreohelix hemphilli eurekensis by Henderson and Daniels (1916), but was subsequently elevated to full specific status as Oreohelix eurekensis (Henderson 1924). O. e. eurekensis was recognized as a subspecies by Henderson and Daniels (1916), and O. e. uinta was proposed as a subspecies by Brooks (1939). Brooks proposed subspecific status for O. e. uinta based primarily on its relatively wider umbilicus, an exceedingly variable feature in Oreohelix taxa (Roscoe and Grosscup 1964). Roscoe and Grosscup (1964) suggested that younger specimens of O. eurekensis could not be distinguished from O. e. uinta and that O. e. uinta may simply be a subadult of O. eurkensis. The senior author had “grave doubts as to the validity” of O. e. uinta even as a subspecies (Roscoe and Grosscup 1964).

        Experienced staff of the UDWR reviewed multiple references in an effort to understand the taxonomic history of Oreohelix eurekensis uinta. Of the 15 references they identified from 1936 through 2000, only 6 discussed taxonomy and 4 of those only minimally (James F. Karpowitz, UDWR, in litt., August 18, 2005). With the types of information that would be necessary to reconcile the issue of taxonomy (e.g., morphology of soft anatomy, molecular genetics, and breeding experiments) lacking, authors either deferred to Brooks (1939), who justified the subspecies status based on slight morphological distinction and geographic disjunction, or explicitly questioned the validity of the taxon (Karpowitz in litt. 2005). Brooks (1939) stated “this race is so similar to [typical Oreohelix eureka] found * * * about 125 miles * * * from [the new locality] * * * that it would hardly be thought distinguishable if it were not from a different mountain system.”

        Karpowitz (in litt. 2005) also quoted Bickel (unpublished report, 1977) as stating that the taxonomic status of both Orehelix eurekensis and O. e. uinta was “undetermined, probably a synonym or subspecies of Oreohelix yavapai.” It is clear that, based on the sum total of information reviewed, there has never been a systematic analysis of O. e. uinta or its relatives and there is no persuasive or strongly defensible scientific basis for any of the possible taxonomic arrangements (i.e., subspecies or species) that have been proposed (Karpowitz in litt. 2005). Thus, we conclude that there is insufficient scientific evidence to indicate that O. e. uinta is a valid subspecies. Therefore, we further conclude that the Uinta mountainsnail cannot at this time be considered a listable entity pursuant to section 3(15) of the Act.
        Additional Considerations
        The petition presented information pursuant to the five factors listed in section 4 of the Act in an effort to identify threats that may be leading to the decline of the Uinta mountainsnail. These factors are pertinent only in cases where the organism being proposed for listing is a listable entity as defined by section 3(15) of the Act. Nonetheless, we reviewed the information included in the petition, and other information readily available to us, in an effort to identify possible voluntary management actions that may assist with Uinta mountainsnail conservation. We reiterate that this discussion of threats is not a basis for our finding.

        The petition suggests that prescribed fire may have extirpated the species, although Oliver and Bosworth (2000) clearly stated that previous attempts to locate O. e. uinta by Clarke and Hovingh (1994) were in the wrong location and that their reference to possible extirpation from the burn was unfounded. Although prescribed fire may be detrimental to mountainsnails, USFS has confirmed that there are currently no prescribed burns scheduled for the type location on the Ashley NF (Bill Stroh, USFS biologist, pers. comm.). The USFS also has confirmed that there are no timber harvests scheduled or anticipated in the site location, nor are there any planned road construction projects (Bill Stroh, USFS biologist, pers. comm.). The site has been fenced and is being monitored by USFS personnel.

        At this time, the petitioned population of mountainsnails seems most at risk from scientific collection, an issue not addressed in the petition but the subject of ongoing coordination between USFS, UDWR, and the Service. The rarity of the species also is in question in that at least two populations of O. e.s uinta have been positively identified, with two other suspected populations from the east Tavaputs Plateau (George Oliver, UDWR, pers. comm.).
        Finding

        We have reviewed the petition, literature cited in the petition, and other pertinent information readily available to us. Based on this review, we find the petition does not present substantial information indicating that listing the Uinta mountainsnail may be warranted. This finding is based on the lack of conclusive scientific evidence to indicate that O. e. uinta is a valid subspecies. Therefore, we have concluded that the Uinta mountainsnail cannot be considered a listable entity pursuant to section 3(15) of the Act. We will not be commencing a status review in response to this petition. However, we will continue to monitor the taxon's population status and trends, potential threats, and ongoing management actions that might be important with regard to the conservation of the Uinta mountainsnail across its range. We encourage interested parties to continue to gather data that will assist with these conservation efforts. New information should be submitted to the Field Supervisor, Utah Field Office (see ADDRESSES).
        References Cited

        A complete list of all references cited herein is available, upon request, from the Utah Field Office (see ADDRESSES).
        Author

        The primary author of this notice is Marianne Crawford, Utah Field Office, U.S. Fish and Wildlife Service, (see ADDRESSES).

          Authority

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

          Dated: November 7, 2005.
          Marshall Jones,
          Deputy Director, U.S. Fish and Wildlife Service.

      [FR Doc. 05-22629 Filed 11-14-05; 8:45 am]
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