        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 20
        RIN 1018-AI30
        Migratory Bird Hunting; Proposed 2002-03 Migratory Game Bird Hunting Regulations (Preliminary) With Requests for Indian Tribal Proposals

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule.

          SUMMARY:

          The U.S. Fish and Wildlife Service (hereinafter Service or we) proposes to establish annual hunting regulations for certain migratory game birds for the 2002-03 hunting season. We annually prescribe outside limits (frameworks) within which States may select hunting seasons. This proposed rule provides the regulatory schedule, announces the Flyway Council meetings, and describes proposed changes to the regulatory alternatives for the 2002-03 duck hunting seasons. We also request proposals from Indian tribes that wish to establish special migratory bird hunting regulations on Federal Indian reservations and ceded lands. Migratory game bird hunting seasons provide hunting opportunities for recreation and sustenance; aid Federal, State, and tribal governments in the management of migratory game birds; and permit harvests at levels compatible with migratory bird population status and habitat conditions.

          DATES:
          You must submit comments on the proposed regulatory alternatives for the 2002-03 duck hunting seasons by May 1, 2002. You must submit comments for proposed early-season frameworks by July 30, 2002, and for proposed late-season frameworks by August 30, 2002. Tribes should submit proposals and related comments by June 1, 2002.

          ADDRESSES:
          Send your comments on the proposals to the Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Department of the Interior, ms 634-ARLSQ, 1849 C Street, NW, Washington, DC 20240. All comments received, including names and addresses, will become part of the public record. You may inspect comments during normal business hours in room 634, Arlington Square Building, 4401 North Fairfax Drive, Arlington, Virginia.

          FOR FURTHER INFORMATION CONTACT:
          Ron W. Kokel at: Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Department of the Interior, ms 634-ARLSQ, 1849 C Street, NW, Washington, DC 20240, (703) 358-1714.

        SUPPLEMENTARY INFORMATION:

        Background and Overview
        Migratory game birds are those bird species so designated in conventions between the United States and several foreign nations for the protection and management of these birds. Under the Migratory Bird Treaty Act (16 U.S.C. 703-712), the Secretary of the Interior is authorized to determine when “hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any * * * bird, or any part, nest or egg” of migratory game birds can take place and to adopt regulations for this purpose. These regulations must be written based on “the zones of temperature and the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds” and must be updated annually. This responsibility has been delegated to the Fish and Wildlife Service (Service) of the Department of the Interior as the lead Federal agency for managing and conserving migratory birds in the United States.
        The Service develops migratory bird hunting regulations by establishing the frameworks, or outside limits, for season lengths, bag limits, and areas for migratory game bird hunting. Acknowledging regional differences in hunting conditions, the Service has administratively divided the nation into four Flyways for the primary purpose of managing waterfowl. Each Flyway (Atlantic, Mississippi, Central, and Pacific) has a Flyway Council, a formal organization generally composed of one member from each State and Province in that Flyway. The Flyway Councils, established through the International Association of Fish and Wildlife Agencies (IAFWA), also assist in researching and providing management techniques for Federal, State, and Provincial Governments, as well as private conservation agencies and the general public.
        The migratory bird hunting regulations, located at 50 CFR 20, are constrained by three primary factors. Legal and administrative considerations dictate how long the rulemaking process will last. Most importantly though, the biological cycle of migratory birds controls the timing of data-gathering activities and thus the date on which results are available for consideration. The process includes two separate regulations-development schedules, based on early- and late-hunting season regulations. Early seasons pertain to all migratory game bird species in Alaska, Hawaii, Puerto Rico, and the Virgin Islands; migratory game birds other than waterfowl (i.e., dove, woodcock, etc.); and special early waterfowl seasons, such as teal or resident Canada geese. The early season generally begins prior to October 1. Late seasons generally start on or after October 1 and include most waterfowl seasons not already established.
        There are basically no differences in the processes for establishing either early- or late-hunting seasons. For each cycle, Service biologists gather, analyze, and interpret survey data and provide this information to all those involved in the process through a series of published status reports and presentations to Flyway Councils and other interested parties. Because the Service is required to take abundance of migratory birds and other factors into consideration, the Service undertakes a number of surveys throughout the year in conjunction with Service Regional Offices, the Canadian Wildlife Service, and State and Provincial wildlife-management agencies. Factors such as population size and trend, geographical distribution, annual breeding effort, the condition of breeding, wintering habitat, the number of hunters, and the anticipated harvest are considered to determine the appropriate frameworks for each species.
        After frameworks, or outside limits, are established for season lengths, bag limits, and areas for migratory game bird hunting, migratory game bird management becomes a cooperative effort of State and Federal governments. After Service establishment of final frameworks for hunting seasons, the States may select season dates, bag limits, and other regulatory options for the hunting seasons. States may be more conservative in their selections than the Federal frameworks but never more liberal.
        Notice of Intent To Establish Open Seasons
        This notice announces our intent to establish open hunting seasons and daily bag and possession limits for certain designated groups or species of migratory game birds for 2002-03 in the contiguous United States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands, under §§ 20.101 through 20.107, 20.109, and 20.110 of subpart K of 50 CFR part 20.

        For the 2002-03 migratory game bird hunting season, we will propose regulations for certain designated members of the avian families Anatidae (ducks, geese, and swans); Columbidae (doves and pigeons); Gruidae (cranes); Rallidae (rails, coots, moorhens, and gallinules); and Scolopacidae (woodcock and snipe). We describe these proposals under Proposed 2002-03 Migratory Game Bird Hunting Regulations (Preliminary) in this document. We published definitions of waterfowl flyways and mourning dove management units, as well as a description of the data used in and the factors affecting the regulatory process, in the March 14, 1990, Federal Register (55 FR 9618).
        Regulatory Schedule for 2002-03

        This document is the first in a series of proposed, supplemental, and final rulemaking documents for migratory game bird hunting regulations. We will publish additional supplemental proposals for public comment in the Federal Register as population, habitat, harvest, and other information become available.

        Because of the late dates when certain portions of these data become available, we anticipate abbreviated comment periods on some proposals. Special circumstances limit the amount of time we can allow for public comment on these regulations. Specifically, two considerations compress the time for the rulemaking process: the need, on one hand, to establish final rules early enough in the summer to allow resource agencies to select and publish season dates and bag limits prior to the beginning of hunting seasons and, on the other hand, the lack of current status data on most migratory game birds until later in the summer. Because the regulatory process is strongly influenced by the times when information is available for consideration, we divide the regulatory process into two segments: early seasons and late seasons.

        Major steps in the 2002-03 regulatory cycle relating to open public meetings and Federal Register notifications are illustrated in the diagram at the end of this proposed rule. All publication dates of Federal Register documents are target dates.
        All sections of this and subsequent documents outlining hunting frameworks and guidelines are organized under numbered headings. These headings are:

          1. Ducks
          A. General Harvest Strategy
          B. Regulatory Alternatives
          C. Zones and Split Seasons
          D. Special Seasons/Species Management
          i. September Teal Seasons
          ii. September Teal/Wood Duck Seasons
          iii. Black ducks
          iv. Canvasbacks
          v. Pintails
          vi. Scaup
          vii. Youth Hunt
          2. Sea Ducks
          3. Mergansers
          4. Canada Geese
          A. Special Seasons
          B. Regular Seasons
          C. Special Late Seasons
          5. White-fronted Geese
          6. Brant
          7. Snow and Ross's (Light) Geese
          8. Swans
          9. Sandhill Cranes
          10. Coots
          11. Moorhens and Gallinules
          12. Rails
          13. Snipe
          14. Woodcock
          15. Band-tailed Pigeons
          16. Mourning Doves
          17. White-winged and White-tipped Doves
          18. Alaska
          19. Hawaii
          20. Puerto Rico
          21. Virgin Islands
          22. Falconry
          23. Other

        Later sections of this and subsequent documents will refer only to numbered items requiring your attention. Therefore, it is important to note that we will omit those items requiring no attention and remaining numbered items will be discontinuous and appear incomplete.
        We will publish final regulatory alternatives for the 2002-03 duck hunting seasons in early June. We will publish proposed early-season frameworks in mid-July and late-season frameworks in mid-August. We will publish final regulatory frameworks for early seasons on or about August 20, 2002, and those for late seasons on or about September 15, 2002.
        Announcement of Flyway Council Meetings
        Service representatives will be present at the individual meetings of the four Flyway Councils this April. Although agendas are not yet available, these meetings usually commence at 8:00 a.m. on the days indicated. All meetings will be held April 2, 2002, at the Hyatt Regency at Reunion Center, 300 Reunion Boulevard, Dallas, Texas.
        Review of Public Comments
        This proposed rulemaking contains the proposed regulatory alternatives for the 2002-03 duck hunting seasons. This proposed rulemaking also describes other recommended changes or specific preliminary proposals that vary from the 2001-02 frameworks and issues requiring early discussion, action, or the attention of the States or tribes. We will publish responses to all proposals and written comments when we develop final frameworks. We seek additional information and comments on the recommendations in this proposed rule.
        Consolidation of Notices
        For administrative purposes, this document consolidates the notice of intent to establish open migratory bird hunting seasons and the request for tribal proposals with the preliminary proposals for the annual hunting regulations-development process. We will publish the remaining proposed and final rulemaking documents separately. For inquiries on tribal guidelines and proposals, tribes should contact the following personnel:
        Region 1—Brad Bortner, U.S. Fish and Wildlife Service, 911 N.E. 11th Avenue, Portland, Oregon 97232-4181; (503) 231-6164.
        Region 2—Jeff Haskins, U.S. Fish and Wildlife Service, P.O. Box 1306, Albuquerque, New Mexico 87103; (505) 248-7885.
        Region 3—Steve Wilds, U.S. Fish and Wildlife Service, Federal Building, One Federal Drive, Fort Snelling, Minnesota 55111-4056; (612) 713-5432.
        Region 4—Frank Bowers, U.S. Fish and Wildlife Service, 1875 Century Boulevard, Room 324, Atlanta, Georgia 30345; (404) 679-4000.
        Region 5—George Haas, U.S. Fish and Wildlife Service, 300 Westgate Center Drive, Hadley, Massachusetts 01035-9589; (413) 253-8576.
        Region 6—John Cornely, U.S. Fish and Wildlife Service, P.O. Box 25486, Denver Federal Building, Denver, Colorado 80225; (303) 236-8145.
        Region 7—Robert Leedy, U.S. Fish and Wildlife Service, 1011 East Tudor Road, Anchorage, Alaska 99503; (907) 786-3423.
        Requests for Tribal Proposals
        Background

        Beginning with the 1985-86 hunting season, we have employed guidelines described in the June 4, 1985, Federal Register (50 FR 23467) to establish special migratory bird hunting regulations on Federal Indian reservations (including off-reservation trust lands) and ceded lands. We developed these guidelines in response to tribal requests for our recognition of their reserved hunting rights, and for some tribes, recognition of their authority to regulate hunting by both tribal and nontribal members throughout their reservations. The guidelines include possibilities for:
        (1) On-reservation hunting by both tribal and nontribal members, with hunting by nontribal members on some reservations to take place within Federal frameworks, but on dates different from those selected by the surrounding State(s);
        (2) On-reservation hunting by tribal members only, outside of usual Federal frameworks for season dates and length, and for daily bag and possession limits; and
        (3) Off-reservation hunting by tribal members on ceded lands, outside of usual framework dates and season length, with some added flexibility in daily bag and possession limits.

        In all cases, tribal regulations established under the guidelines must be consistent with the annual March 10 to September 1 closed season mandated by the 1916 Convention Between the United States and Great Britain (for Canada) for the Protection of Migratory Birds (Convention). The guidelines are applicable to those tribes that have reserved hunting rights on Federal Indian reservations (including off-reservation trust lands) and ceded lands. They also may be applied to the establishment of migratory bird hunting regulations for nontribal members on all lands within the exterior boundaries of reservations where tribes have full wildlife management authority over such hunting, or where the tribes and affected States otherwise have reached agreement over hunting by nontribal members on non-Indian lands.

        Tribes usually have the authority to regulate migratory game bird hunting by nonmembers on Indian-owned reservation lands, subject to our approval. The question of jurisdiction is more complex on reservations that include lands owned by non-Indians, especially when the surrounding States have established or intend to establish regulations governing migratory bird hunting by non-Indians on these lands. In such cases, we encourage the tribes and States to reach agreement on regulations that would apply throughout the reservations. When appropriate, we will consult with a tribe and State with the aim of facilitating an accord. We also will consult jointly with tribal and State officials in the affected States where tribes may wish to establish special hunting regulations for tribal members on ceded lands. As explained in previous rulemaking documents, it is incumbent upon the tribe and/or the State to request consultation as a result of the proposal being published in the Federal Register. We will not presume to make a determination, without being advised by either a tribe or a State, that any issue is or is not worthy of formal consultation.
        One of the guidelines provides for the continuation of tribal members' harvest of migratory game birds on reservations where such harvest is a customary practice. We do not oppose this harvest, provided it does not take place during the closed season required by the Convention, and it is not so large as to adversely affect the status of the migratory bird resource. For several years, we have reached annual agreement with tribes for migratory bird hunting by tribal members on their lands or on lands where they have reserved hunting rights. We will continue to consult with tribes that wish to reach a mutual agreement on hunting regulations for on-reservation hunting by tribal members.
        Tribes should not view the guidelines as inflexible. We believe that they provide appropriate opportunity to accommodate the reserved hunting rights and management authority of Indian tribes while ensuring that the migratory bird resource receives necessary protection. The conservation of this important international resource is paramount. Use of the guidelines is not required if a tribe wishes to observe the hunting regulations established by the State(s) in which the reservation is located.
        Details Needed in Tribal Proposals
        Tribes that wish to use the guidelines to establish special hunting regulations for the 2002-03 hunting season should submit a proposal that includes:
        (1) The requested hunting season dates and other details regarding the proposed regulations;
        (2) Harvest anticipated under the proposed regulations;
        (3) Methods that will be employed to measure or monitor harvest (mail-questionnaire survey, bag checks, etc.);
        (4) Steps that will be taken to limit level of harvest, where it could be shown that failure to limit such harvest would seriously impact the migratory bird resource; and
        (5) Tribal capabilities to establish and enforce migratory bird hunting regulations.
        A tribe that desires the earliest possible opening of the waterfowl season should specify this request in their proposal, rather than request a date that might not be within the final Federal frameworks. Similarly, unless a tribe wishes to set more restrictive regulations than Federal regulations will permit, the proposal should request the same daily bag and possession limits and season length for ducks and geese that Federal regulations are likely to permit the States in the Flyway in which the reservation is located.
        Tribal Proposal Procedures

        We will publish details of tribal proposals for public review in later Federal Register documents. Because of the time required for our and public review, Indian tribes that desire special migratory bird hunting regulations for the 2002-03 hunting season should submit their proposals as soon as possible, but no later than June 1, 2002. Tribes should direct inquiries regarding the guidelines and proposals to the appropriate Service Regional Office listed above under the caption Consolidation of Notices. Tribes that request special migratory game bird hunting regulations for tribal members on ceded lands should send a courtesy copy of the proposal to officials in the affected State(s).
        Public Comments Solicited

        The Department of the Interior's policy is, whenever practicable, to afford the public an opportunity to participate in the rulemaking process. Accordingly, we invite interested persons to submit written comments, suggestions, or recommendations regarding the proposed regulations. Before promulgation of final migratory game bird hunting regulations, we will take into consideration all comments received. Such comments, and any additional information received, may lead to final regulations that differ from these proposals. We invite interested persons to participate in this rulemaking by submitting written comments to the address indicated under the caption ADDRESSES.

        Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There may also be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
        You may inspect comments received on the proposed annual regulations during normal business hours at the Service's office in room 634, 4401 North Fairfax Drive, Arlington, Virginia. For each series of proposed rulemakings, we will establish specific comment periods. We will consider, but possibly may not respond in detail to, each comment. As in the past, we will summarize all comments received during the comment period and respond to them after the closing date in any final rules.
        NEPA Consideration

        NEPA considerations are covered by the programmatic document, “Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-14),” filed with the Environmental Protection Agency on June 9, 1988. We published Notice of Availability in the Federal Register on June 16, 1988 (53 FR 22582). We published our Record of Decision on August 18, 1988 (53 FR 31341). In addition, an August 1985 environmental assessment entitled “Guidelines for Migratory Bird Hunting Regulations on Federal Indian Reservations and Ceded Lands” is available from the address indicated under the caption ADDRESSES.

        In a proposed rule published in the April 30, 2001, Federal Register (66 FR 21298), we expressed our intent to begin the process of developing a new EIS for the migratory bird hunting program. This issue is discussed below under “Proposed 2002-03 Migratory Game Bird Hunting Regulations.”
        Endangered Species Act Consideration
        Prior to issuance of the 2002-03 migratory game bird hunting regulations, we will consider provisions of the Endangered Species Act of 1973, as amended, (16 U.S.C. 1531-1543; hereinafter the Act) to ensure that hunting is not likely to jeopardize the continued existence of any species designated as endangered or threatened or modify or destroy its critical habitat and is consistent with conservation programs for those species. Consultations under Section 7 of this Act may cause us to change proposals in this and future supplemental proposed rulemaking documents.
        Executive Order (E.O.) 12866

        This rule is economically significant and was reviewed by the Office of Management and Budget (OMB) under E.O. 12866. The migratory bird hunting regulations are economically significant and are annually reviewed by OMB under E.O. 12866. As such, a cost/benefit analysis was prepared in 1998 and is further discussed below under the heading Regulatory Flexibility Act. Copies of the cost/benefit analysis are available upon request from the address indicated under the caption ADDRESSES.

        E.O. 12866 requires each agency to write regulations that are easy to understand. We invite comments on how to make this rule easier to understand, including answers to questions such as the following:
        (1) Are the requirements in the rule clearly stated?
        (2) Does the rule contain technical language or jargon that interferes with its clarity?
        (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?
        (4) Would the rule be easier to understand if it were divided into more (but shorter) sections?
        (5) Is the description of the rule in the “Supplementary Information” section of the preamble helpful in understanding the rule?
        (6) What else could we do to make the rule easier to understand?
        Regulatory Flexibility Act

        These regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). We analyzed the economic impacts of the annual hunting regulations on small business entities in detail, and the Service issued a Small Entity Flexibility Analysis (Analysis) in 1998. The Analysis documented the significant beneficial economic effect on a substantial number of small entities. The primary source of information about hunter expenditures for migratory game bird hunting is the National Hunting and Fishing Survey, which is conducted at 5-year intervals. The Analysis utilized the 1996 National Hunting and Fishing Survey and the U.S. Department of Commerce's County Business Patterns from which it was estimated that migratory bird hunters would spend between $429 million and $1.084 billion at small businesses in 1998. Copies of the Analysis are available upon request from the Division of Migratory Bird Management.
        Small Business Regulatory Enforcement Fairness Act
        This rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule has an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808 (1).
        Paperwork Reduction Act
        We examined these regulations under the Paperwork Reduction Act of 1995. The various recordkeeping and reporting requirements imposed under regulations established in 50 CFR part 20, Subpart K, are utilized in the formulation of migratory game bird hunting regulations. Specifically, OMB has approved the information collection requirements of the Migratory Bird Harvest Information Program and assigned clearance number 1018-0015 (expires 09/30/2004). This information is used to provide a sampling frame for voluntary national surveys to improve our harvest estimates for all migratory game birds in order to better manage these populations. OMB has also approved the information collection requirements of the Sandhill Crane Harvest Questionnaire and assigned clearance number 1018-0023 (expires 07/30/2003). The information from this survey is used to estimate the magnitude and the geographical and temporal distribution of the harvest, and the portion it constitutes of the total population.
        A Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
        Unfunded Mandates Reform Act

        We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities. Therefore, this rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act.
        Civil Justice Reform—Executive Order 12988
        The Department, in promulgating this proposed rule, has determined that this rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988.
        Takings Implication Assessment
        In accordance with E.O. 12630, this proposed rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, these rules allow hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property.
        Energy Effects—E.O. 13211
        On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this proposed rule is a significant regulatory action under E.O. 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.
        Federalism Effects

        Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections and employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and tribes to determine which seasons meet their individual needs. Any State or tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with E.O. 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

          List of Subjects in 50 CFR Part 20
          Exports, Hunting, Imports, Reporting and recordkeeping requirements, Transportation, Wildlife.

        The rules that eventually will be promulgated for the 2002-03 hunting season are authorized under 16 U.S.C. 703-711, 16 U.S.C. 712, and 16 U.S.C. 742 a-j.

          Dated: February 1, 2002.
          Joseph E. Doddridge,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

        Proposed 2002-03 Migratory Game Bird Hunting Regulations (Preliminary)
        Pending current information on populations, harvest, and habitat conditions, and receipt of recommendations from the four Flyway Councils, we may defer specific regulatory proposals. With the exception of modifying the framework opening and closing dates within the regulatory alternatives, we are proposing no change from the final 2001-02 frameworks of August 21 and September 27, 2001 (66 FR 44010 and 49478). Other issues requiring early discussion, action, or the attention of the States or tribes are contained below:
        1. Ducks
        Categories used to discuss issues related to duck harvest management are: (A) General Harvest Strategy, (B) Regulatory Alternatives, (C) Zones and Split Seasons, and (D) Special Seasons/Species Management. Only those containing substantial recommendations are discussed below.
        A. General Harvest Strategy
        We recommend the continued use of adaptive harvest management (AHM) to help determine appropriate duck-hunting regulations for the 2002-03 season. The current AHM protocol is used to evaluate five alternative regulatory levels based on the population status of mallards (special hunting restrictions are enacted for species of special concern, such as canvasbacks and pintails). The regulatory alternative in the Mississippi, Central, and Pacific Flyways is prescribed based on the status of mallards and breeding-habitat conditions in central North America (Federal survey strata 1-18, 20-50 and 75-77, and State surveys in Minnesota, Wisconsin, and Michigan). The recommended regulatory alternative for the Atlantic Flyway is based on the population status of mallards breeding in eastern North America (Federal survey strata 51-54 and 56, and State surveys in New England and the mid-Atlantic region) and, thus, may differ from that in the remainder of the country. A specific regulatory alternative for each of the Flyways during the 2002-03 season will be proposed after survey information becomes available in late summer.
        Last year, the AHM Working Group (an interagency, technical advisory committee) identified a number of concerns with the current AHM protocol for mallards. These concerns focused on the models of population dynamics used to evaluate various regulatory options, and include: (1) Evidence that all models of mallard population dynamics may predict biased annual growth rates; (2) indications that the current method of comparing predicted and observed population sizes may unrealistically inflate the rate at which we can identify the most accurate population model; and (3) the need for improved survival and reproductive models that more effectively capture the range of possible population dynamics and effects of harvest. These concerns have important management implications, and we expect to propose remedial measures for the 2002-03 hunting season. Our proposals will be based on consultations with the AHM Working Group and the Flyway Councils, and will be made available for public comment later in the year.
        Finally, we expressed our desire last year to begin the process of developing a new Environmental Impact Statement for migratory bird hunting (66 FR 21302). We reiterate the need to focus on three key themes:
        (1) Goal setting—AHM can produce optimal regulatory decisions in the face of uncertainty, if and only if, there is agreement about the goals and objectives of harvest management. Clearly, the goals of duck harvest management extend well beyond simple measures of hunter success and population size, and many of the difficulties in duck harvest management today probably relate more to ambiguity in objectives, rather than to uncertainty about biological impacts. Disagreement about management objectives poses a serious threat to the long-term viability of AHM.
        (2) Limits to system control—There are both theoretical and practical limits to our ability to predict, control, and measure the size of waterfowl populations and harvest and, as a consequence, operational constraints on short-term hunting opportunity and on the learning needed to increase long-term performance. The waterfowl management community needs to better explore, understand, and acknowledge these limits, and to develop regulatory alternatives and strategies that avoid the most undesirable consequences of those limits, while meeting reasonable demands for hunting opportunity.
        (3) Management scale—The history of duck harvest management has been characterized by efforts to account for increasingly more spatial, temporal, and taxonomic variability in waterfowl demographics in a continuing effort to maximize hunting opportunity. We have begun to question the wisdom of this approach, given the inevitable tradeoff between harvest benefits and the direct and indirect costs of managing at progressively finer scales. The level of resolution that ultimately will be most appropriate in the AHM process remains to be seen, but we are increasingly concerned about what we see as unrealistic expectations for accommodating small-scale variation in waterfowl population dynamics.
        We look forward to exploring these and other duck-harvest management issues with the Flyway Councils, other stakeholders, and the general public during the coming year.
        B. Regulatory Alternatives
        The Service regulates the earliest and latest dates within which States can select duck-hunting seasons. Historically, these dates have been approximately October 1 to January 20. The effects of extending these dates so that seasons could open earlier and/or later have been the subject of extensive debate within the waterfowl management community. Biological impacts and impacts on harvest resulting from such changes remain uncertain.

        In 1998, Congress specified that the 1998-99 hunting season in Alabama, Arkansas, Kentucky, Louisiana, Mississippi, and Tennessee could extend to January 31, with a 9-day reduction from the 60-day season established for other States. The 9-day reduction was intended to offset the anticipated increase in harvest that was expected to occur. Since 1998, Alabama, Mississippi, and Tennessee chose to use this extended closing date (January 31) with the 9-day offset. We have continued to monitor duck harvests in these States but do not yet have sufficient data to determine definitively whether the magnitude of season-length reduction is accomplishing its intended purpose.
        In August 2000, the Flyway Council Consultants to the Service Regulations Committee requested that the Service evaluate the projected impacts of extending the framework opening date for duck hunting from the Saturday nearest October 1 to the Saturday nearest September 24 and extending the closing date from the Sunday nearest January 20 to the last Sunday in January. The evaluation, completed in January 2001, was based on a canvassing of all Flyways to determine which States would use the extension. The principal conclusion of this review reaffirmed earlier assessments that nationwide use of framework-date extensions might significantly reduce the frequency of more liberal duck hunting seasons. This is primarily a result of greater uncertainty in our ability to predict the impacts of such fundamental changes in the regulations.
        In 2001, the National Flyway Council (NFC) submitted a letter signed by the Atlantic, Central, and Pacific Flyway Councils, and the Lower-Region Regulations Committee of the Mississippi Flyway Council, that formally recommended an experimental framework opening date of the Saturday nearest September 24 and a framework closing date of the last Sunday in January, with no offsets, in the “moderate” and “liberal” regulatory packages, for the 2001-03 duck seasons. The letter further recommended that the framework dates be applicable either Statewide or in zones and that the Service use an evaluation of the framework date extensions for the next 3 years as a basis for establishing future framework dates.
        We considered the recommendation, but declined to offer any changes to existing framework dates for duck hunting in the 2001-02 hunting season (66 FR 38498) due to a number of unresolved issues. Among those were: (1) Uncertainty about changes in mallard harvest rates that might occur with implementation of framework-date extensions; (2) the need for a reliable monitoring program for estimating realized harvest rates of mallards, i.e., current estimates of band-reporting rates; (3) the potential for adverse biological impacts to species other than mallards, such as wood ducks, and especially those below objective levels (e.g., pintails, scaup); and (4) certain administrative and procedural issues involved in extending framework dates, particularly the timing of key meetings, publication of proposed and final rules, and the availability of adequate public notice and opportunity for comment. Other long-standing concerns were: (1) Changes in distribution of the harvest both within and among Flyways; (2) the need to maintain stability of regulatory packages; and (3) the potential impact of late-season extensions on ducks returning to the breeding grounds in the spring. We also emphasized that any uncertainty surrounding the impact of framework-date extensions on mallard numbers could be addressed most effectively using an adaptive management approach. This approach would not only help identify the effects of framework-date extensions but also ensure that we can account for uncertainty associated with harvest and population impacts in each regulatory decision.
        On October 11, 2001, upon reconsideration of the previously established “liberal” regulatory alternative, we proposed (66 FR 51919) a framework opening date of September 29 and a closing date of January 31, with no reduction (offset) in season length, for the 2001-02 hunting season in the States of Alabama, Arkansas, Kentucky, Louisiana, Mississippi, and Tennessee. This proposal was in contrast to framework-date extensions existing since 1998 in Alabama, Mississippi, and Tennessee, of a closing date of January 31, accompanied by a 9-day reduction in season length.
        The vast majority of comments received during the comment period were strongly opposed to this proposal. Consequently, we withdrew the proposal on November 23, 2001 (66 FR 58707) and stated that we would begin immediately to work with the Flyway Councils to develop a resolution to the framework-date issue prior to the 2002-03 duck hunting season.
        On December 2, 2001, we met in Wichita, Kansas, with a newly formed working group of the International Association of Fish and Wildlife Agencies (IAFWA). This group, comprised of State representatives, including representatives from each Flyway Council, was formed to facilitate early coordination with the Flyway Councils and States. The discussion focused on the original 2001 recommendation submitted through the NFC and how the current regulations-setting process and schedule would need to be changed in order to accommodate changes in frameworks dates should such a proposal be adopted through the usual regulatory process. This early coordination was considered necessary since meetings throughout the process, which are scheduled well in advance, might have to be changed. It was concluded that changes to the current process could be made to allow for earlier and later season extensions as proposed by the Flyway Councils.
        Based on discussions with Flyway Council representatives, and using the above recommendation to extend season dates, we propose the following: (1) To modify the current set of regulatory alternatives changing the framework opening date from the Saturday nearest October 1 to the Saturday nearest September 24 and change the closing date from the Sunday nearest January 20 to the last Sunday in January, with no offset in days or bag limits, in the “moderate” and “liberal” regulatory alternatives; (2) to keep these changes to framework dates in place for 3 years to allow for a reasonable opportunity to monitor the impacts of these extensions on harvest distribution and rates of harvest prior to considering any subsequent use; (3) to make any changes to frameworks within the context of AHM; and (4) to hold the Flyway Technical Committee and Council meetings and the Service Regulations Committee meeting for late-season hunting proposals approximately 1 week earlier than normally scheduled to accommodate administrative and procedural requirements.

        Based on our recent assessment, “Framework-date Extensions for Duck Hunting in the United States: Projected Impacts & Coping With Uncertainty (January 2001)”, we expect this proposal to result in some redistribution of the harvest, increases in harvest of mallards and perhaps other species, and potentially less frequent liberal regulations. These impacts were summarized in the June 14, 2001, Federal Register (66 FR 32297).

        Regarding administrative and procedural issues, the Service underscores the need to proceed carefully with modifications to the existing timetable for regulations development. That is, if additional changes to the schedule become necessary, beyond those already proposed to accommodate early-season framework extensions, significant problems could arise. Included in these concerns would be the availability of survey information prior to the development of regulatory proposals.
        In light of the uncertainty about the impacts of extended framework dates, we support the recommendation of the Flyway Councils that changes must be accomplished within the context of AHM. Several years ago (April 1999), the AHM Working Group considered an adaptive approach to framework-date extensions and developed a set of principles and general guidelines, which we continue to support. Those principles are: (1) The need for stability in regulatory alternatives so that associated levels of duck harvest can be estimated reliably; (2) the advisability of framework-date proposals with minimal complexity (i.e., few, if any, special cases or dispensations); (3) the specification of framework regulations that are uniform within Flyways; (4) the need for improved resource monitoring to provide necessary feedback; and (5) a cautionary statement that regulatory changes far beyond the realm of experience undermine our ability to make data-based predictions about harvest impacts and, thus, undermine the integrity of the AHM process.
        In light of these concerns, we are requesting the AHM Working Group to evaluate the framework-date proposal contained herein, and to recommend appropriate changes to the current AHM technical protocol. At a minimum, we believe that the AHM Working Group should: (1) Review and update the predictions of mallard harvest rates under the current regulatory alternatives (without framework-date extensions); (2) determine how we will account for the uncertainty about the impacts of extended framework dates; (3) recommend changes to resource monitoring programs that will be necessary to permit an evaluation of framework-date extensions; and (4) provide guidelines for assessing impacts to species other than mallards (especially those species below objective levels). Finally, in evaluating the current framework-date proposal, we urge all interested parties to consider how improvements to resource monitoring programs would be funded, whether the risk of more restrictive hunting seasons (i.e., shorter season lengths and smaller bag limits) is acceptable, and whether some re-distribution of duck harvest to more northerly and more southerly States is desirable.
        In conclusion, the Service re-emphasizes its commitment to monitoring the impacts of these proposed extensions of framework dates over a 3-year period, particularly with regard to any effects on harvest distribution and rates of harvest. It is essential, therefore, that improvements to existing monitoring programs, such as the need to estimate the rate at which hunters voluntarily report band encounters (band reporting rate), be in place during this evaluation period. Resulting improvements in the estimation of harvest rates of mallards and other duck species, along with other elements of ongoing survey activities, will play a major role in the evaluation effort. Any decision to continue these framework extensions, or implement more restrictive hunting seasons, will be contingent on the outcome of this assessment.

        Thus, as indicated above, for the 2002-03 season, we are proposing to modify the four regulatory alternatives used last year (see accompanying table for specifics of the proposed regulatory alternatives). Alternatives are specified for each Flyway and are designated as “VERY RES” for the very restrictive, “RES” for the restrictive, “MOD” for the moderate, and “LIB” for the liberal alternative. We will announce final regulatory alternatives in early June. Public comments will be accepted until May 1, 2002, and should be sent to the address under the caption ADDRESSES.

        D. Special Seasons/Species Management
        iv. Canvasbacks
        Since 1994, the Service has followed a canvasback harvest strategy such that, if population status and production are sufficient to permit a harvest of one canvasback per day nationwide for the entire length of the regular duck season, while attaining a spring population objective of 500,000 birds, the season on canvasbacks should be opened. Otherwise, the season on canvasbacks should be closed nationwide. Lat spring, the estimate of canvasback abundance was 580,000 birds and the number of ponds in Prairie Canada in May (2.7 million) was 20% below the long-term average. The size of the spring population, together with natural mortality and below-average expected production due to the relatively dry conditions, was insufficient to offset expected mortality associated with a canvasback season lasting the entire length of the “liberal” regulatory alternative and still attain the population objective of 500,000 canvasbacks in the spring of 2002.
        While we continued to support the harvest strategy and the model adopted in 1994, despite the reduced numbers and below-average production forecast last year, we believed there was still some opportunity to allow a limited harvest last fall without compromising the population's ability to reach 500,000 canvasbacks this spring. Thus, we allowed a very restrictive, shortened canvasback season for 2001-02. In the Atlantic and Mississippi Flyways, the season length was 20 days, in the Central Flyway, 25 days, and in the Pacific Flyway, 38 days. Our objective was to provide some hunting opportunity while still maintaining the spring population above the 500,000 objective level.
        We also expressed a willingness to revisit the guidelines outlined in the strategy and asked that any proposed changes have broad-based support and reflect the interests of all stakeholders. In addition, we urged the Flyway Councils to begin internal discussions regarding species-specific restrictions in the existing AHM framework. In 2002, we will again consider the size of the spring population and model-based predictions of production and harvest in development of regulations proposals for canvasbacks. However, absent the broad-based support by the Flyway Councils to revise the strategy, we intend to follow the 1994 model-based prescriptions originally developed for canvasbacks.
        v. Pintails
        We presently utilize an interim strategy to manage the harvest of pintails. In the current strategy, the determination of appropriate bag limits is based, in part, on the harvest predicted by a set of models that were developed from historical data relating harvest to bag limit and season length. However, since the interim strategy was implemented in 1997, the predicted harvest has consistently been lower than the estimated harvest from the U.S. and Canadian Federal harvest surveys. We will work with the Flyway Councils to review the current method of determining bag limits with the intent of making appropriate adjustments to the strategy to better reflect the realized harvest of pintails.
        BILLING CODE 4310-55-P

          EP19MR02.077

          EP19MR02.078

      [FR Doc. 02-6527  Filed 3-18-02; 8:45 am]
      BILLING CODE 4310-55-C


        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Parts 1, 2, 18
        [ET Docket No. 19-226; FCC 19-126; FRS 16618]
        Human Exposure to Radiofrequency Electromagnetic Fields; Correction

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule; correction.

          SUMMARY:

          The Federal Communications Commission (Commission) is correcting a date that appeared in the Federal Register on April 6, 2020. In this document, the Commission seeks comment on expanding the range of frequencies for which its radiofrequency (RF) exposure limits apply; on applying localized exposure limits above 6 GHz in parallel to the localized exposure limits already established below 6 GHz; on specifying the conditions and methods for averaging the RF exposure, in both time and area, during evaluation for compliance with the RF exposure limits in the rules; on addressing new RF exposure issues raised by wireless power transfer (WPT) devices; and on the definition of a WPT device.

          DATES:
          Comments are due on or before June 3, 2020, and reply comments are due on or before July 6, 2020.

          ADDRESSES:
          Interested parties may submit comments and replies, identified by ET Docket No. 19-226, by any of the following methods:
          • Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

          • Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing.

          • Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
          • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.U.S.
          • Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

          • Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
          • During the time the Commission's building is closed to the general public and until further notice, if more than one docket or rulemaking number appears in the caption of a proceeding, paper filers need not submit two additional copies for each additional docket or rulemaking number; an original and one copy are sufficient.

          For detailed instructions on submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

          FOR FURTHER INFORMATION CONTACT:
          Martin Doczkat, email: martin.doczkat@fcc.gov of the Office of Engineering and Technology Electromagnetic Compatibility Division; the Commission's RF Safety Program, rfsafety@fcc.gov; or call the Office of Engineering and Technology at (202) 418-2470. For information regarding the Paperwork Reduction Act (PRA) information collection requirements contained in this document, contact Nicole Ongele, Office of Managing Director, at (202) 418-2991 or Nicole.Ongele@fcc.gov.

        SUPPLEMENTARY INFORMATION:
        In FR Doc. 20-06966, appearing on page 19117 in the Federal Register on April 6, 2020, the following correction is made:

        DATES: [Corrected]
        On page 19117, in the first column, the DATES section is corrected to read “reply comments are due on or before June 15, 2020.”

          Dated: April 6, 2020.

          Federal Communications Commission.
          Marlene Dortch,
          Secretary.

      [FR Doc. 2020-08738 Filed 5-1-20; 8:45 am]
      BILLING CODE 6712-01-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 Andrews' Dune Scarab Beetle as Threatened or 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 Andrews' dune scarab beetle (Pseudocotalpa andrewsi) as threatened or endangered under the Endangered Species Act of 1973, as amended. We find the petition does not provide substantial information indicating that listing the Andrews' dune scarab beetle may be warranted. Therefore, we will not be initiating a status review in response to this petition. We ask the public to submit to us any new information that becomes available concerning the status of the species or threats to it or its habitat at any time.

          DATES:
          The finding announced in this document was made on May 5, 2006.

          ADDRESSES:
          The complete file for this finding is available for public inspection, by appointment, during normal business hours at the Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife Service, 6010 Hidden Valley Road, Carlsbad, CA 92011. New information, materials, comments, or questions concerning this species may be submitted to us at any time at the above address.

          FOR FURTHER INFORMATION CONTACT:

          Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section above), by telephone at 760-431-9440, or by facsimile to 760-431-9624.

        SUPPLEMENTARY INFORMATION:
        Background

        Section 4(b)(3)(A) of the Endangered Species Act of 1973, as amended (Act) (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, supporting information submitted with the petition, and information otherwise available in our files at the time we make the determination. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish a 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.

        In making this finding, we relied on information provided by the petitioners and information otherwise available in our files at the time of petition review and evaluated that information in accordance with 50 CFR 424.14(b). 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 December 13, 2002, we received a formal petition dated December 12, 2002, from the Center for Biological Diversity requesting the Andrews' dune scarab beetle (Pseudocotalpa andrewsi) be listed as threatened or endangered in accordance with section 4 of the Act.

        Action on this petition was precluded by court orders and settlement agreements for other listing actions that required nearly all of our listing funds for fiscal year 2003. On December 9, 2004, we received a 60-day notice of intent to sue, and on December 1, 2005, we received a complaint regarding our failure to make the 90-day and 12-month findings on the status of the Andrews' dune scarab beetle. On January 12, 2006, we reached an agreement with the plaintiffs to submit to the Federal Register a completed 90-day finding by April 28, 2006, and to complete, if applicable, a 12-month finding by January 26, 2007 (Case No. 05 CV 1988 BEN (BLM) S.D.CAL). This notice constitutes the 90-day finding for the December 12, 2002, petition.
        Previous Federal Actions
        In a proposed rule that included 10 North American beetles, the Service proposed to list as threatened and designate critical habitat for the Andrews' dune scarab beetle on August 10, 1978 (43 FR 35636). Without citing any literature, species experts, or other scientific authority to support the various claims in the proposal, we indicated that the action was being taken for the 10 beetles because of “decreased population levels and anticipated adverse modification of * * * habitat.” Specifically regarding the Andrews' dune scarab beetle, the Service stated that the “continued disruption of dune troughs by off-road vehicles [ORVs] prevents the accumulation of dead organic matter upon which the immature stages of this beetle feed.” On October 1, 1980 (45 FR 65137), we published a notice of withdrawal for the proposed rule to list the Andrews' dune scarab beetle and seven other beetles because the 1978 amendments to the Act mandated withdrawals for all proposals not finalized within two years. As a result, the Andrews' dune scarab beetle currently has no Federal regulatory status.
        Species Information

        Within the subtribe Areodina of North American scarab beetles (family Scarabaeidae), Hardy described the Andrews' dune scarab beetle (Pseudocotalpa andrewsi) as a monotypic species within a new genus in 1971. Subsequently, Hardy (1974) described two additional species of Pseudocotalpa (P. guilianii and sonorica), along with the note that an additional 82 specimens of P. andrewsi had been collected from the type locality near Glamis in Imperial County, California. Andrews' dune scarab beetles are golden-brown and covered with long, pale, fine hairs, and range in length from 0.51 to 0.71 inches (in) (13 to 18 millimeters (mm)) (Hardy 1971). The Andrews' dune scarab beetle can be differentiated from other closely related scarab beetles by its smaller size, the deep concave shape of the clypeus, and the poorly developed prothoracic post-coxal spine or knob (Hardy 1971, Hardy 1974).

        The Service described the “specific habitat of the beetles [as] troughs of loose drifting sand between dunes” in the 1978 proposed rule (43 FR 35636). Habitat vegetation type was described as creosote bush scrub by Hardy and Andrews (1980), but many collections occurred in areas described as psammophytic (“sand loving”) scrub (Hardy and Andrews 1980; BLM 2002). Psammophytic scrub vegetation occurs in the interior portions of sand dunes, most frequently between active dunes in areas that form depressions (BLM 2003). The Andrews' dune scarab beetle appears to prefer low dunes on the margin of thickets (dense patches of scrub vegetation) that form finger-like extensions into the dunes (Scarabaeus Associates 1991). Andrews reported that all of the Andrews' dune scarab beetle burrowing mounds that he identified were in bare ground near thickets and, therefore, density appeared to be positively correlated with thicket density (Scarabaeus Associates 1991). Thickets are typically dominated by large creosote (Larrea tridentata); palo verde (Cercidium floridum); ironwood (Olneya tesota) (Scarabaeus Associates 1991); and other associated plants include desert buckwheat (Eriogonum deserticola) and desert needle (Palafoxia arida) (Hardy and Andrews 1980). Bureau of Land Management (BLM 2002) noted that the “Andrews' dune scarab beetle is found primarily along the eastern edge of the dunes in the transitional zone between creosote bush scrub, psammophytic scrub, and microphyll woodland habitats.”
        During periods of inactivity, Andrews' dune scarab beetles remain buried at the interface of the wet and dry sand, at depths of 2 to 11.8 in (5 to 30 centimeters (cm)) (Hardy and Andrews 1980; Scarabaeus Associates 1991). Adults have been collected from mid-April through the first week of May (Hardy and Andrews 1980). The adult flight season runs from late March to early May (Scarabaeus Associates 1991). Adults emerge in “large” numbers at dusk (Hardy 1971) and fly for 10 to 30 minutes, while congregating in groups of 3 to 20 individuals around nearby bushes, then move away in pairs to copulate (Hardy and Andrews 1980; Scarabaeus Associates 1991). After copulation, adults rapidly bury themselves in the sand (Hardy and Andrews 1980). We do not have information on the life span of this species.

        Hardy and Andrews (1980) reported that the Andrews' dune scarab beetle “is a species that is (as far as can be determined) endemic to the Algodones Dunes in Imperial County, California, and probably the portion of the same dune system that occurs in Baja California Norte, Mexico.” However in Hardy's (1971) article describing the new species and its habitat, the author included a male specimen collected from the “Yuma Dunes” in 1960 as referable to the species. Hardy and Andrews (1980) noted this same collection in their article as well. The Yuma Dunes occur approximately 15 miles (mi)(28 kilometers) southeast of the Algodones Dunes, across the Colorado River, in extreme southwestern Arizona. Moreover, given that such plants as the Peirson's milk-vetch (Astragalus magdalenae var. peirsonii) are known from the Algodones Dunes, Yuma Dunes, and Gran Desierto de Altar (Felger 2000), and the dune sunflower (Helianthus niveus ssp. tephrodes) is known from the Algodones Dunes and Gran Desierto de Altar (Seiler et al. 2006), it is possible that the Andrews' dune scarab beetle occurs farther south as well in the large dune systems of the Gran Desierto de Altar in northwestern Sonora, Mexico. The Algodones Dunes, Yuma Dunes, and Gran Desierto are geologically part of the same active dune system (Rinker et al. 1991). As a result, the Andrews' dune scarab beetle does not appear to be restricted to the Algodones Dunes of southeastern California or northeastern Baja California Norte, but rather occurs at least within the Yuma Dunes of Arizona and potentially within the Gran Desierto de Altar in northwestern Sonora, Mexico.

        No population estimates are available for this species.
        Threats Analysis
        Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for adding species to the Federal list of endangered and threatened species. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) Present or threatened destruction, modification, or curtailment of habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. In making this finding, we evaluated whether threats to the Andrews' dune scarab beetle presented in the petition and other information available in our files at the time of the petition review may pose a concern with respect to its survival. Our evaluation of these threats is presented below.
        A. Present or Threatened Destruction, Modification, or Curtailment of the Species' Habitat or Range

        The petitioners state that ORV activity destroys and modifies Andrews' dune scarab beetle habitat and curtails its range (range estimate based on Andrews et al. 1979; Hardy and Andrews 1980). The petitioners state that the congregating behavior of adult Andrews' dune scarab beetles during the active season (generally February through May) renders colonies vulnerable to direct mortality by ORV activity. The petition uses the arthropod observations of Luckenbach and Bury (1983) as substantiation.

        The petitioners assert that ORVs can also “adversely modify dune habitat.” According to the petition, accumulations of vegetable matter collected in wind-made troughs may serve as nurseries for Andrews' dune scarab beetle larval stages, and creosote bushes may be host plants for the species. The petitioners maintain that because Andrews' dune scarab beetle reproduction occurs once a year from mid-April through early May, ORV destruction of accumulated vegetable matter in which larvae may be developing could eliminate an entire generation. Citing Carpelan (1995), the petitioners claim that dune buggies adversely modify Andrews' dune scarab beetle habitat, while they note “Hardy and Andrews (1976) concluded that ORVs destroy plant growth within and near the Algodones Dunes, scatter or crush accumulations of organic matter likely used by P. andrewsi larvae for nurseries, disrupt layers of crust which stabilize the dunes, and may upset beetle reproduction.”
        The petitioners also claim that if protected areas of the Algodones Dunes are reopened to ORVs, as described in the draft environmental impact statement (DEIS) for the Proposed Recreation Area Management Plan and Amendment to the California Desert Conservation Area Plan (BLM 2002), habitat for the Andrews' dune scarab beetle will be modified or destroyed and its range within the dune system will likely be curtailed. The petitioners contend that not only is the Andrews' dune scarab beetle endemic to the Algodones Dunes, but no recolonization source exists in the event of population extirpation.
        The petition does not discuss or provide specific scientific or commercial information on distribution and population status of the Andrews' dune scarab beetle in Mexico or outside of the Algodones Dunes system.
        Evaluation of Information in the Petition and Our Files
        The petition and our files contain little information regarding the threat of ORV use to the Andrews' dune scarab beetle. Luckenbach and Bury (1983) reported that “arthropod (mostly beetle) tracks were twenty-four times more abundant in control plots than in ORV-impacted plots.” However, this work was not species-specific (observed tracks may not be the Andrews' dune scarab beetle or reflect the abundance of the species), and the sampled plots were placed in areas where no Andrews' dune scarab beetles have been collected, therefore it is not clear from these results that Andrews' dune scarab beetle is adversely impacted by ORV use, or that ORV use constitutes a significant threat to the beetle. Despite the claim in the petition that Hardy and Andrews (1976) concluded that ORVs destroy plants within and near the Algodones Dunes and impact larval nurseries of Andrews' dune scarab beetle, Hardy and Andrews (1976) did not survey the Algodones Dunes in their insect surveys in six California and Nevada dune systems and the authors provided only generalized data of potential adverse effects of off-highway vehicles (OHVs, also known as ORVs) to “dune restricted or adapted insects.” Carpelan (1995) focused his book chapter on dune stabilization and the adaptation and speciation of dune insects. Carpelan's work was largely derived from Hardy and Andrews (1976) and he gave Andrews' dune scarab beetle as an example of a dune endemic. While Hardy and Andrews (1976) and Carpelan (1995) expressed concern regarding the general effects of OHVs to dunes (especially stabilized dunes), neither paper supported any assertion of OHVs “adversely modify dune habitat” of the Andrews” dune scarab beetle. Similarly, the statements in the 1978 proposal to list the Andrews' dune scarab beetle regarding the decreased population levels and OHV impacts were not supported by the available scientific information.
        An additional report by Andrews (Scarabaeus Associates 1991) provides little additional insight into the potential impact ORV use may have on Andrews' dune scarab beetles or their habitat. Although his study was intended to investigate the potential impacts of ORV use on the Andrews' dune scarab beetle, conclusions regarding the impact of ORV use on Andrews' dune scarab beetle could not be derived from the study as designed. Plots were placed based on collection records and expert opinion of habitat suitability, not randomized within use designation areas or a larger reasonable subset of dune habitat, such as the central upland-lowland dune transition areas where most beetles have been collected. The only measure of ORV activity was BLM use classification (Intensive, Moderate, Limited, and Controlled (no access)). Andrews (Scarabaeus Associates 1991) did not detect any individuals in ORV Intensive use classification plots where most early collections of Andrews' dune scarab beetle were made. However, no individuals were detected in Controlled use (closed to ORV use) classification plots either, where habitat appeared “excellent,” and “significant” populations had been detected in previous years. Most beetle detections were made in plots located within the two intermediate ORV use classification areas (Moderate and Limited). An “extensive” search of a greater area classified as Controlled resulted in detection of only two individuals. Andrews' study (Scarabaeus Associates 1991) indicates that occupancy of habitat patches may shift regardless of habitat suitability or ORV impacts but did not demonstrate impacts of ORV use on Andrews' dune scarab beetle abundance.

        The petitioners assert that only one population of the Andrews' dune scarab beetle, a species endemic to the Algodones Dunes, exists. As discussed above, however, the species has been collected from the Yuma Dunes in Arizona. Moreover, given that the federally threatened Peirson's milk-vetch (Astragalus magdalenae var. peirsonii) is known from the Algodones Dunes, Yuma Dunes, and Gran Desierto de Altar (Felger 2000), and the dune sunflower (Helianthus niveus ssp. tephrodes) is known from the Algodones Dunes and Gran Desierto de Altar (Seiler et al. 2006), it is possible that this dune species occurs farther south as well in the large dune systems of the Gran Desierto de Altar in northwestern Sonora, Mexico. Information provided with the petition and in our files does not indicate that the Yuma Dunes or the sand dune systems within the 5,000 square mi (1.3 million ha) of the Gran Desierto de Altar have been surveyed for the Andrews' dune scarab beetle.
        We find that, due to weak, incomplete, or nonexistent information regarding impacts to the Andrews' dune scarab beetle from ORV use, the petition and our files do not present substantial information that the petitioned action may be warranted. No other information regarding Factor A was contained in the petition or our files. Because the known populations in the United States exist on lands owned and managed by BLM, it is unlikely to be subject to other forms of habitat modification under Factor A, such as loss of habitat due to development.
        B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
        The petition states no data are available. We have no scientific or commercial information in our files indicating that overutilization of the beetle exists for commercial, recreational, scientific, or educational purposes, and the petition did not provide any such information.
        C. Disease or Predation
        The petition states that natural predation affects the population but does not describe any effects. The petition states that effects of disease on the Andrews' dune scarab beetle are unknown, and we have no information in our files to indicate that either disease or predation threatens the beetle.
        Evaluation of Information in the Petition and Our Files

        Some information available in our files provided specific observations of predation. Hardy and Andrews (1980) stated that “[d]uring evening flights, night hawks were observed to be important predators of Pseudocotalpa.” Andrews (Scarabaeus Associates 1991) observed nighthawk and scorpion predation, noting that nighthawks appeared to actively search occupied sites for Andrews' dune scarab beetles. However, review of the petition and information in our files did not provide substantial scientific or commercial information that mortality by predation or disease may threaten survival of the species across its range.
        D. Inadequacy of Existing Regulatory Mechanisms
        The petitioners assert that existing regulatory mechanisms are inadequate to protect this Algodones Dunes species from extinction. The petition states that past administrative plans and legal requirements to monitor and conserve the Andrews' dune scarab beetle have not been implemented by BLM. Current management plans allow ORV activity in the majority of the known range of the Andrews' dune scarab beetle on BLM lands in the Algodones Dunes (94 percent of all creosote scrub and 84 percent of all psammophytic scrub).
        All known Andrews' dune scarab beetle habitat in the United States is on land managed by the BLM (Andrews et al. 1979; Hardy and Andrews 1980; BLM and CDFG 1987). The petitioners state that, although the sensitive, potentially endangered status of the Andrews' dune scarab beetle and adverse impacts of ORVs on the species have been made known to BLM (Hardy and Andrews 1976), the use of ORVs continues to be permitted in sensitive beetle habitat. According to the petition, the preferred alternative management plan in the DEIS (BLM 2002) would result in relaxed conservation measures for the species, including reopening thousands of acres of protected habitat to ORV use (see Factor A discussion above).
        The petition notes that three planning documents for the Algodones Dunes Wildlife Habitat Area have addressed management of ORV use and the Andrews' dune scarab beetle: the 1972 Recreation Management Plan, the 1980 California Desert Conservation Area Plan, and the 1987 Recreation Area Management Plan for the Imperial Sand Dunes (RAMP) (BLM and CDFG 1987). The previously implemented RAMP called for a reduction in the proposed level of recreation development and dispersal of intensive recreational use within Class I areas. The RAMP included the Algodones Dunes Wildlife Habitat Management Plan (HMP), implemented under the authority of the Sikes Act (16 U.S.C. 670a-670o). The HMP recommended biennial surveys for the Andrews' dune scarab beetle (p. 22): “Permanent plots will be evaluated biennially, and results will be compared to existing information to determine trend, until a satisfactory amount of data are gathered. Supplementary and monitoring studies will be through contract * * *.”
        The petition reports that only one set of surveys was ever conducted (Scarabaeus Associates 1991), and although the report could not be located by the petitioners, it is in our files. The petition notes that permanent monitoring of the Andrews' dune scarab beetle was recommended in the HMP, but surveys have not been conducted for the past decade. The petition notes that the RAMP also stipulated that localized surveys be conducted for the Andrews' dune scarab beetle prior to approval of particular development projects. The petition concludes that no available documents indicate that the stipulated surveys were conducted, although a number of the named development projects were approved and completed.
        The petition quotes a recent DEIS (BLM 2002) that “little is known about the biology of this beetle, [and] current information about the distribution and preferred habitat at the Plan Area is not available * * *. No information about threats to this species is available.” The petition claims this assessment of the species is inaccurate given information presented in the petition. The petition notes that the HMP mandated collection of demographic and distributional information would have provided relevant additional information regarding the species. Additionally, no data were presented in the DEIS regarding the distribution of the Andrews' dune scarab beetle, although such data are required before land-use decisions are made to ensure the species is not jeopardized. The petitioners also note that the DEIS recognizes “OHV activity tends to be concentrated within the psammophytic scrub. As a consequence, some special-status wildlife species such as * * * endemic dune beetles occurring in these dunes would be killed or injured by OHV activity.” The preferred alternative in the DEIS (Alternative 2) would allow 198,220 ac (80,217 ha) of the Algodones Dunes to be open to ORV use, and only the relatively small 27,695-ac (11,208-ha) portion of the Algodones Dunes would remain as off-limits to ORVs.
        Evaluation of Information in the Petition and Our Files

        Focusing on the concerns expressed by the petitioners, the final and currently implemented RAMP (BLM 2003) does not address specific conservation, research, or monitoring of the Andrews' dune scarab beetle. The only mention of Andrews' dune scarab beetle is a note on page 32, recognizing that the beetle is a “poorly known” BLM sensitive species (Issues, Concerns, and Opportunities section). The final RAMP utilizes the preferred alternative in the DEIS (Alternative 2) discussed in the petition. Under the final RAMP, all-terrain vehicle, motorcycle, truck, and dune buggy ORV use will be prohibited in the 26,202 ac (10,601 ha) North Algodones Dunes Wilderness Recreation Management Area. The wilderness area closed to ORV use under the final RAMP is 18 percent of the BLM-managed Imperial Sand Dunes Recreation Area known to contain Andrews' dune scarab beetle habitat (not including the Dune Buggy Flats Recreation Management Area uplands where studies have not detected Andrews' dune scarab beetle) (Hardy and Andrews 1980; BLM 2002). Historically, most Andrews' dune scarab beetle observations were concentrated in the Glamis Recreation Management Area (Hardy and Andrews 1980), which has the highest allowable recreation impacts under the final RAMP. As stated above, interim vehicle use closure areas designated for the threatened Peirson's milk-vetch plant (Astragalus magdalenae var. peirsonii) and desert tortoise (Gopherus agassizii) through legal stipulation (BLM 2002), including approximately 49,000 ac (19,829.6 ha) of the Andrews' dune scarab beetle range, were not maintained (they were opened to ORV use) under the final RAMP (BLM 2003).
        Regardless of whether the petition or the above description accurately details the historic, existing, and proposed management and monitoring of the Algodones Dunes by the BLM, the central issue is whether such management is inadequate because the associated ORV activity has adversely affected or will adversely affect the Andrews' dune scarab beetle such that listing may be warranted. Though the petitioners claim they “were unable to find a single study documenting positive or even neutral effects of ORVs” after completing a comprehensive review of scientific literature regarding ORV impacts on desert flora and fauna, the petition and our files do not contain any direct or substantial evidence that ORV activity is adversely affecting the Andrews' dune scarab beetle. Despite the assertion from the petitioners that “a sufficient body of information on negative effects of ORVs on arthropods in the Algodones Dunes exists to indicate the species is imperiled,” the often cited study by Hardy and Andrews (1976) did not address the Algodones Dunes or the Andrews' dune scarab beetle, while the counting of arthropod tracks in the Luckenbach and Bury study (1983), also cited many times by the petitioners, was not specific to Andrews' dune scarab beetle and does not necessarily correlate to the beetle. Moreover, the results of Andrew's study (Scarabaeus Associates 1991) intended to investigate the impact of ORV use on the Andrews' dune scarab beetle indicated that beetle abundance was not correlated with BLM ORV use designations, and that occupancy of habitat patches may shift regardless of habitat suitability or ORV impact. However, as noted above, due to study design limitations, the impact of ORV use could not be adequately determined. In fact, another possible hypothesis that could support the study data is that some disturbance of the dunes is beneficial to the beetles, as the most beetles were collected in areas open to moderate disturbance, and no beetles were collected in a formerly occupied area where disturbance may have been reduced by closure. Because of the weak information on the effects of ORVs to the Andrews' dune scarab beetle and the lack of information supporting species-specific threats, there is no basis for finding that existing regulatory protections are inadequate. Accordingly, we find that the petition and our files do not present substantial scientific or commercial information that the petitioned action may be warranted.
        E. Other Natural or Manmade Factors Affecting the Species' Continued Existence
        Without citing any scientific references or studies, the petition states that pesticide use in the agricultural areas of the Imperial Valley is likely having negative impacts on the species through pesticide drift into the dunes and that spraying programs for the curly top leafhopper virus are also likely directly impacting the species.
        The petition also included the issue of direct mortality from OHV use in the Andrews' dune scarab beetle habitat.
        Evaluation of Information in the Petition and Our Files
        The assertion provided in the petition that pesticide use is likely having negative impacts was not supported by any scientific information, citations, or data. Thus, the petition does not provide substantial scientific or commercial information documenting loss of Andrews' dune scarab beetles by pesticide use or how this may threaten survival of the species across its range, nor is there any additional information in our files.
        The assertion provided in the petition that OHV use is likely to have negative impacts on direct mortality was not supported by any scientific information, citations, or data. Therefore, this petition does not provide substantial scientific or commercial information documenting loss of Andrews' dune scarab beetles by the use of OHVs.
        Finding

        We reviewed the petition and supporting information provided with the petition and evaluated that information in relation to other pertinent literature and information available in our files at the time of petition review. After this review and evaluation, we find the petition does not provide substantial scientific or commercial information to demonstrate that listing the Andrews' dune scarab beetle may be warranted at this time. The species information in the petition and in our files was collected between 1967 and 1991, when most of the specific data was collected. We encourage interested parties to continue to gather data that will assist with the conservation of the species. Information regarding the Andrews' dune scarab beetle may be submitted to the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES section above) at any time.
        References Cited

        A complete list of all references cited herein is available, upon request, from the Carlsbad Fish and Wildlife Office (see ADDRESSES section).
        Author

        The primary author of this notice is Alison Anderson, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (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: May 1, 2006.
          H. Dale Hall,
          Director, U.S. Fish and Wildlife Service.

      [FR Doc. E6-6791 Filed 5-4-06; 8:45 am]
      BILLING CODE 4310-55-P