Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Proposed Rules 46401 

meeting for three sessions of 

approximately five days at roughly 

monthly intervals. Meetings will start 

on a Monday at 1:00 and end on a 

Friday at noon. The committees will 

meet in the Washington, DC area. The 

dates and locations of these meetings 

will be posted on the Department’s Web 

site at: http://www.ed.gov/policy/ 

highered/reg/hearulemaking/2009/ 

negreg-summerfall.html. 

The schedule for these negotiations 

has been developed to ensure 

publication of the final regulations by 

the November 1, 2010 statutory deadline 

for publishing Title IV, HEA student 

financial assistance final regulations. 

Electronic Access to This Document 

You can view this document, as well 

as all other documents of this 

Department published in the Federal 

Register, in text or Adobe Portable 

Document Format (PDF), on the Internet 

at the following site: http://www.ed.gov/ 

news/fedregister. 

To use PDF you must have Adobe 

Acrobat Reader, which is available free 

at this site. If you have questions about 

using PDF, call the U.S. Government 

Printing Office toll free at 1–888–293– 

6498; or in the Washington, DC, area at 

(202) 512–1530. 

Note: The official version of this document 

is the document published in the Federal 

Register. Free Internet access to the official 

edition of the Federal Register and the Code 

of Federal Regulations is available on GPO 

Access at: http://www.gpoaccess.gov/nara/ 

index.html. 

Program Authority: 20 U.S.C. 1098a. 

Delegation of Authority: The Secretary 

of Education has delegated authority to 

Daniel T. Madzelan, Director, 

Forecasting and Policy Analysis for the 

Office of Postsecondary Education, to 

perform the functions and duties of the 

Assistant Secretary for Postsecondary 

Education. 

Dated: September 3, 2009. 

Daniel T. Madzelan, 

Director, Forecasting and Policy Analysis. 

[FR Doc. E9–21695 Filed 9–8–09; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[EPA–HQ–OAR–2008–0697; FRL–8948–9] 

RIN 2060–AP08 

Revisions to Test Method for 

Determining Stack Gas Velocity Taking 

Into Account Velocity Decay Near the 

Stack Walls 

Correction 

In proposed rule document E9–20395 

beginning on page 42819 in the issue of 

Tuesday, August 25, 2009 make the 

following correction: 

Appendix A–2 to Part 60 [Corrected] 

On page 42819, in Appendix A–2 to 

Part 60, Equation 2H–1 is reprinted 

correctly to read as set forth below: 

d r p

p

r rd d rem last last = − ⎛ −

⎝

⎜ ⎞

⎠

⎟ − +

1 1

2

2 2 Eq. 2H-1

[FR Doc. Z9–20395 Filed 9–8–09; 8:45 am] 

BILLING CODE 1505–01–D 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS-R4-ES-2009-0029 

MO 9221050083-B2] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on a 

Petition to List the Eastern Population 

of the Gopher Tortoise (Gopherus 

polyphemus) as Threatened 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of 90–day petition 

finding and initiation of status review. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce a 90–day 

finding on a petition to list the eastern 

population of the gopher tortoise 

(Gopherus polyphemus) as threatened 

under the Endangered Species Act of 

1973, as amended (Act) and designate 

critical habitat. Herein, the Service 

refers to the eastern population of the 

gopher tortoise as the gopher tortoise in 

the eastern portion of its range. 

Following a review of the petition, we 

find that the petition presents 

substantial scientific or commercial 

information indicating that listing the 

gopher tortoise in the eastern portion of 

its range may be warranted. Therefore, 

with the publication of this notice, we 

are initiating a status review to 

determine if listing the gopher tortoise 

in the eastern portion of the range is 

warranted. To ensure that the status 

review is comprehensive, we are 

soliciting scientific and commercial data 

and other information regarding the 

status of and threats facing the gopher 

tortoise throughout all of its range. 

DATES: We made the finding announced 

in this document on September 9, 2009. 

To allow us adequate time to conduct 

this review, we request that we receive 

information on or before November 9, 

2009 to allow us time to review and 

consider the information in our status 

review. 

ADDRESSES: You may submit 

information by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• U.S. mail or hand-delivery: Public 

Comments Processing, Attn: FWS-R4- 

ES-2009-0029; Division of Policy and 

Directives Management; U.S. Fish and 

Wildlife Service; 4401 N. Fairfax Drive, 

Suite 222; Arlington, VA 22203. 

We will post all information received 

on http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

David L. Hankla, Field Supervisor, 

Jacksonville Ecological Services Field 

Office, 7915 Baymeadows Way, Suite 

200, Jacksonville, FL 32256, by 

telephone 904/731-3336, or by facsimile 

904/731-3045. Persons who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 800-877-8339. 

SUPPLEMENTARY INFORMATION: 

Information Solicited 

When we make a finding that a 

petition presents substantial 

information indicating that listing a 

species may be warranted, we are 

required to promptly commence a 

review of the status of the species. To 

ensure that the status review is 

complete and based on the best 

available scientific and commercial 

information, we are soliciting 

information concerning the status of the 

gopher tortoise throughout all of its 

range. We request information from 

other concerned governmental agencies, 

Native American Tribes, the scientific 

community, industry, or any other 

interested parties concerning the status 


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46402 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Proposed Rules 

of the gopher tortoise throughout all of 

its range. We are seeking information 

regarding: 

(1) The species’ biology, range, and 

population trends, including: 

(a) Habitat requirements for feeding, 

breeding, and sheltering; 

(b) Genetics and taxonomy of the 

gopher tortoise throughout its entire 

range including the federally listed 

western portion of the gopher tortoise’s 

range; 

(c) Historical and current range 

including distribution patterns; 

(d) Historical and current population 

levels, and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for the species or its habitat. 

(2) The factors that are the basis for 

making a listing determination for a 

species under section 4(a) of the Act (16 

U.S.C. 1531 et seq.), which are: 

(a) The present or threatened 

destruction, modification, or 

curtailment of the species’ habitat or 

range; 

(b) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(c) Disease or predation; 

(d) The inadequacy of existing 

regulatory mechanisms; or 

(e) Other natural or manmade factors 

affecting its continued existence and 

threats to the species or its habitat. 

(3) Information related to whether any 

portion of the range should be 

considered for listing as a distinct 

population segment or significant 

portion of the range. 

If we determine that listing the gopher 

tortoise in the eastern portion of its 

range is warranted, it may be 

appropriate, at the same time, to 

propose critical habitat to the maximum 

extent prudent and determinable at the 

time we propose to list the species. 

Therefore, with regard to areas within 

the geographical range currently 

occupied by the gopher tortoise range 

wide we also request data and 

information on what may constitute 

physical or biological features essential 

to the conservation of the species, where 

these features are currently found, and 

whether any of these features may 

require special management 

considerations or protection. In 

addition, we request data and 

information regarding whether there are 

areas outside the geographical area 

occupied by the species that are 

essential to the conservation of the 

species. Please provide specific 

comments and information as to what, 

if any, critical habitat you think we 

should propose for designation if the 

species is proposed for listing, and why 

such habitat meets the requirements of 

the Act. Include sufficient information 

with your submission (such as full 

references) to allow us to verify any 

scientific or commercial information 

you provide. 

Submissions merely stating support 

for or opposition to the action under 

consideration without providing 

supporting information, although noted, 

will not be considered in making a 

determination. Section 4(b)(1)(A) of the 

Act directs that determinations as to 

whether any species is a threatened or 

endangered species must be made 

‘‘solely on the basis of the best scientific 

and commercial data available.’’ Based 

on the status review, we will issue a 12– 

month finding on the petition, as 

provided in section 4(b)(3)(B) of the Act. 

You may submit your information 

concerning this status review by one of 

the methods listed in the ADDRESSES

section. If you submit information via 

http://www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the Web site. If you submit a 

hardcopy that includes personal 

identifying information, you may 

request at the top of your document that 

we withhold this personal identifying 

information from public review. 

However, we cannot guarantee that we 

will be able to do so. We will post all 

hardcopy submissions on http:// 

www.regulations.gov. 

Information and materials we 

received and used in preparing this 90– 

day finding will be available for you to 

review at http://www.regulations.govor 

you may make an appointment during 

normal business hours at the U.S. Fish 

and Wildlife Service, Jacksonville 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Background 

Section 4(b)(3)(A) of the Act requires 

that we make a finding on whether a 

petition to list, delist, or reclassify a 

species presents substantial scientific or 

commercial information indicating 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. 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 

the finding promptly in the Federal 

Register. 

Our standard for ‘‘substantial 

scientific or commercial 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 

scientific or commercial information 

was presented, we are required to 

promptly commence a status review of 

the species which we subsequently 

summarize in our 12–month finding. 

On January 18, 2006, we received a 

petition, dated January 13, 2006, from 

Save Our Big Scrub, Inc. and Wild 

South requesting that we list the gopher 

tortoise (Gopherus polyphemus) in the 

eastern portion of its range as a 

threatened species under the Act and 

we designate critical habitat. The 

petition clearly identified itself as such 

and included the requisite identification 

information for the petitioners, as 

required in 50 CFR 424.14(a). Action on 

this petition was precluded by court 

orders and settlement agreements for 

other listing and critical habitat actions 

that required all of our listing and 

critical habitat funding for fiscal year 

2006. On September 26, 2006, we 

received a 60–day notice of intent to sue 

from Save Our Big Scrub, Inc. and Wild 

South for failing to make a timely 90– 

day finding. This notice constitutes our 

90–day finding on the petition to list the 

gopher tortoise in the eastern portion of 

its range. 

Previous Federal Action(s) 

On July 7, 1987 (52 FR 25376), the 

Service determined the western 

population of the gopher tortoise to be 

a threatened species. This population 

occurs from the Tombigbee and Mobile 

Rivers in Alabama west to southeastern 

Louisiana. To date, no Federal actions 

have been taken with regard to the 

gopher tortoise in the eastern portion of 

its range. 

Species Information 

The gopher tortoise was first 

described in 1802 by F.M. Daudin. It is 

the only tortoise indigenous to the 

southeastern United States (U.S. Fish 

and Wildlife Service 1990, p. 1). The 

gopher tortoise is a moderate-sized, 

terrestrial turtle, averaging 23 to 28 

centimeters (cm) (9 to 11 inches (in)) in 

length. The species is identified by its 

stumpy, elephantine hind feet and 

flattened, shovel-like forelimbs. The 

shell is oblong and generally tan, brown, 

or gray in coloration. 

The gopher tortoise typically inhabits 

relatively well-drained, sandy soils. 

This species is generally associated with 

longleaf pine (Pinus palustris)– xeric 

oak (Quercus spp.) sandhills but also 

occurs in scrub, xeric hammock, pine 

flatwoods, dry prairie, coastal 

grasslands and dunes, mixed hardwoodVerDate Nov<24>2008 16:09 Sep 08, 2009 Jkt 217001 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\09SEP1.SGM 09SEP1

jlentini on DSKJ8SOYB1PROD with PROPOSALS
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pine communities, and a variety of 

disturbed habitats (Auffenberg and 

Franz 1982, p. 98; Kushlan and Mazzotti 

1984, pp. 231-232; Diemer 1987, pp. 73- 

74; Diemer 1992; pp. 163-164; 

Breininger et al. 1994, pp. 60 and 63). 

Gopher tortoises excavate burrows that 

average 0.91 to 15.8 meters (m) (3 to 52 

feet (ft)) in length and 2.7 to 7.0 m (9 

to 23 ft) in depth (Ashton and Ashton 

2004, p. 15). These burrows, which 

provide protection from temperature 

extremes, desiccation, and predators, 

serve as refuges for approximately 360 

other species (Cox et al. 1987, p. 11; 

Jackson and Milstrey 1989, pp. 86-87; 

Witz et al. 1991, p. 152). 

The gopher tortoise is slow to reach 

sexual maturity, has low fecundity, and 

has a long life span (Cox et al. 1987, p. 

17). Females reach sexual maturity at 9 

to 21 years of age, depending on local 

resource abundance and latitude; males 

mature at a slightly younger age 

(Mushinsky et al. 1994, p. 352; Aresco 

and Guyer 1999, pp. 503-504). The 

breeding season is generally April to 

November. Nests are constructed (often 

in burrow mounds) from mid-May to 

mid-June, and only one clutch is 

produced annually (Iverson 1980, p. 

356). Incubation periods range from 80 

to 90 days in northern Florida (Iverson 

1980, p. 356) to 110 days in South 

Carolina, the northern limit of the 

gopher tortoise’s range (Wright 1982, p. 

68). Predation of nests and hatchlings is 

a major factor affecting population 

dynamics (Diemer 1994, pp. 134-135; 

Alford 1980, p. 180; Butler and Sowell 

1996, pp. 455-457). 

Gopher tortoises feed primarily on 

broadleaf grasses, wiregrass (Aristida 

stricta var. beyrichiana), asters, peas and 

beans, and fruit, but they are known to 

eat more than 300 species of plants 

(Ashton and Ashton 2004, pp. 33-35). 

Home range size varies with habitat 

type, season, and sex of the tortoise; 

moreover, considerable individual 

variation has been found (Diemer 1992, 

pp. 160-162). Reported annual average 

home ranges for males have varied from 

0.5 to 1.9 hectares (ha) (1.2 to 4.7 acres 

(ac)). Females generally have smaller 

home ranges, with reported averages 

ranging from 0.1 to 0.6 ha (0.2 to 1.6 ac) 

(McRae et al. 1981, pp. 174-176; Diemer 

1992, pp. 160-161; Smith et al. 1997, pp. 

359-361). Home range size is inversely 

correlated with the amount of 

herbaceous ground cover and the range 

may vary depending on habitat quality 

(Diemer 1992, p. 163). Multiple burrows 

are typically used (McRae et al. 1981, p. 

165; Diemer 1992, p. 162), which 

complicates estimates of population size 

(McCoy and Mushinsky 1992, p. 402). 

The gopher tortoise is endemic to the 

United States and occurs in the 

southeastern Coastal Plain from 

southeastern South Carolina to extreme 

southeastern Louisiana (Auffenberg and 

Franz 1982, p. 95). The eastern portion 

of the gopher tortoise’s range includes 

Alabama (east of the Tombigbee and 

Mobile Rivers), Florida, Georgia, and 

South Carolina. Of the eastern portion of 

the tortoise’s range, the northernmost 

part is in South Carolina; in that State, 

four disjunct populations remain in 

Jasper County, a few tortoises occur in 

southern Hampton County (Wright 

1982, p. 14), and tortoises have recently 

been documented in Aiken County 

(Clark 2001, p. 191). In Georgia, the 

largest number of tortoises is found 

along the western Fall Line Sand Hills 

and the central Tifton Uplands. Along 

the Coastal Plain of Georgia, most of the 

tortoises are scattered due to 

urbanization along the coast, which 

further isolates tortoises from one 

another (Landers and Garner 1981, pp. 

46-47). Tortoises found farther inland in 

rural areas also tend to be scattered due 

to lack of management, such as 

prescribed burning. The State of Florida 

contains the largest portion of the total 

global range of the species. Gopher 

tortoises remain widely distributed in 

Florida, occurring in parts of all 67 

counties; however, their current range 

in south Florida is restricted due to 

unsuitable habitat and increased 

urbanization (Diemer 1987, p. 73). 

Tortoises occur as far south as Cape 

Sable and on islands off the east and 

west coasts of Florida (Auffenberg and 

Franz 1982, p. 99; Kushlan and Mazzotti 

1984, p. 231). 

Applicability of the Act to the Eastern 

Portion of its Range 

Section 3 of the Act defines ‘‘species’’ 

to include ‘‘any subspecies of fish or 

wildlife or plants, and any distinct 

population segment [DPS] of any 

species of vertebrate fish or wildlife 

which interbreeds when mature,’’ and 

an ‘‘endangered species’’ as ‘‘any 

species which is in danger of extinction 

throughout all or a significant portion of 

its range.’’ (A ‘‘threatened species’’ is 

‘‘any species which is likely to become 

an endangered species within the 

foreseeable future throughout all or a 

significant portion of its range).’’ As a 

result, we make listing decisions on 

entire species or subspecies which may 

be threatened or endangered throughout 

all or a significant portion or their range, 

and on DPSs of vertebrate animals (see 

our Policy Regarding the Recognition of 

Distinct Vertebrate Population Segments 

Under the Endangered Species Act (61 

FR 4722, February 7, 1996) for 

information on how we define and 

identify DPSs). If we recognize a 

population as a DPS, it is listed if we 

find it is threatened or endangered 

throughout all or a significant portion of 

its range. 

If we find the gopher tortoise is 

threatened in the eastern portion of the 

range, it may be appropriate to list the 

entire species as threatened (because it 

is already listed as threatened in the 

western portion of the range). 

Alternatively, we may determine that a 

DPS of the gopher tortoise inhabits the 

eastern portion of the range, and we 

may make a listing determination for 

that DPS. 

The petition and information in our 

files suggest that the eastern portion of 

the gopher tortoise’s range contains the 

majority of the total global range of the 

species. This indicates that the eastern 

portion of the range may be a significant 

portion of the range of the species, or, 

if discrete from the remainder of the 

range, a distinct population segment of 

the species. See the Service’s Policy 

Regarding the Recognition of Distinct 

Vertebrate Population Segments under 

the Endangered Species Act (61 FR 

4722, February 7, 1996). 

Therefore, we find that the petition 

presents substantial information that the 

eastern portion of the range of the 

gopher tortoise may, if threatened or 

endangered, be an appropriate subject of 

a listing rule, and that a range-wide 

review of its status is warranted. 

Evaluation of Information for this 

Finding 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations at 50 

CFR 424 set forth the procedures for 

adding species to the Federal Lists of 

Endangered and Threatened Wildlife 

and Plants. 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) The present or 

threatened destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. 

In making this 90–day finding, we 

evaluated whether information 

regarding the gopher tortoise in the 

eastern portion of its range, as presented 

in the petition and other information 

available in our files, is substantial, 

thereby indicating that the petitioned 

action may be warranted. Our 


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evaluation of this information is 

presented below. 

A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of the Species’ Habitat or 

Range 

The petition states that within the 

eastern portion of the range of the 

gopher tortoise, land for urban uses 

(urban development) has increased by 

approximately 614 percent, which is 

higher than in areas where the federally 

listed western population occurs (483 

percent increase) (Vesterby and Krupa 

1997, pp. 44-45). Based on the 

document cited in the petition, it is 

unclear how the petitioners reach this 

conclusion. Although the information 

has shown an increase in urban use 

throughout the southeastern United 

States, it does not show that this 

conversion to urban use has occurred in 

areas occupied by gopher tortoises. 

However, information in our files 

indicates that conversion of natural pine 

stands for urban uses can and does have 

detrimental effects, caused by loss of 

habitat, on populations of gopher 

tortoises. Based on GIS analysis of 2003 

Landsat imagery, an estimated 688,963 

ha (1,701,736 ac) of former tortoise 

habitat in Florida are now urban, which 

represents a 15.7 percent loss of 

historical tortoise habitat to 

urbanization (FWC 2006, p. 8). 

The petition also notes that between 

1952 and 1999, natural pine habitat 

declined by more than 61 percent 

within the eastern portion of the gopher 

tortoise’s range. The 61 percent decline 

is a greater decline than the 41 percent 

in areas occupied by the federally listed 

western population (Conner and 

Hartsell 2002, pp. 374-375). 

Furthermore, the petition states that the 

amount of land devoted to pine 

plantations has increased from 567,000 

ha (1.4 million ac) in 1952 to nearly 8.91 

million ha (22 million ac) in 1999, an 

increase of more than 1,400 percent 

(Conner and Hartsell 2002, pp. 373-376). 

Information in our files indicates that 

loss of natural pine stands converted to 

pine plantations has an adverse effect 

on gopher tortoise populations 

(Auffenberg and Franz 1982, p. 102). 

Pine plantations are typically planted in 

dense rows of pine trees. The resulting 

open, grassy habitat may encourage 

colonization for several years. Such 

colonies are short-lived, however, for 

within l0 to l5 years, the pines shade 

out the grasses, and the tortoises either 

die or scatter (Auffenberg and Franz 

1982, p. 111). 

Natural pine stands tend to have an 

open canopy that allows for greater light 

intensity at ground level and a diversity 

of grasses and forbs that the tortoises 

eat. Pine plantations tend to have a 

dense overstory, which results in a 

sparse surface flora and lack of foraging 

vegetation for tortoises (Auffenberg and 

Franz 1982, p. 102). Conversion to pine 

plantations results in poor habitat 

quality and smaller populations of 

gopher tortoises. Based on the 

information provided in the petition 

and information in our files, there is a 

trend showing an increase in planted 

pine and a decrease in natural pine that 

could be detrimental to gopher tortoises 

throughout the eastern portion of their 

range. 

Included in the petition is a quote 

from the Florida Fish and Wildlife 

Conservation Commission (FWC) that, 

‘‘it may be inevitable that gopher 

tortoises will be largely eliminated from 

private lands in Florida within the next 

three generations, which would 

represent a 60-65 percent decline in 

tortoise habitat. We anticipate similar 

losses in the other range states,’’ (FWC 

2001, p. 5). Kautz (1998, p. 184) projects 

that natural pine forests could disappear 

from all commercial forest lands in 

Florida by 2021. Kautz (1998, p. 182) 

also estimates that between 1970 and 

1995, natural pine forests in Florida 

declined from 2.26 million ha (5.58 

million ac) to 1.14 million ha (2.82 

million ac), a 49.4 percent loss in 

approximately one tortoise generation 

(31 years). In other States where gopher 

tortoises occur, human population 

growth has not increased as it has in 

Florida over the last 50 years, but 

prospects for loss of natural pine forests 

in these other States are no less bleak 

(FWC 2001, p. 5). 

The loss of natural pinelands 

throughout the South is further 

supported by Siry (2002, p. 335), who 

stated that in 2000, natural pine made 

up 11 percent of the forest industry’s 

land holdings throughout the southern 

United States; but by 2020, only a 

predicted 2 percent of the forest 

industry’s land holdings will be in 

natural pine. Siry (2002, p. 335) also 

showed that in 2000, natural pine 

consisted of 14 percent of nonindustrial 

private forest holdings, whereas by 

2020, only 10 percent is predicted to be 

left in natural pine. This information, 

which was cited in the petition, is 

supported by information found in our 

files. FWC’s 2006 update to the species’ 

2001 status report further indicates a 

serious decline in the amount of gopher 

tortoise habitat in the State of Florida. 

The petition also contends that the 

increase in habitat destruction and 

degradation of upland habitats has 

resulted in fragmentation of large 

tortoise populations and forced 

individuals into unsuitable habitats and 

onto highways (Wilson 1997, p. 18). The 

petitioners’ rationale is that as the 

quality of isolated patches of gopher 

tortoise habitat is degraded, mature 

adults may be forced to abandon a site 

in search of better quality habitat and 

food. This could force the tortoises into 

urban areas where food and habitat are 

scarce. According to FWC (2001, p. 4), 

gopher tortoises left areas that had been 

recently converted to pine plantations. 

Dense pines shade out understory forage 

plants causing the tortoises to move to 

peripheral areas to find food. 

These peripheral areas are often road 

shoulders, which may give the 

impression that population numbers are 

high, even though the adjacent pine 

plantation is largely unoccupied (FWC 

2001, p. 4). This claim is supported by 

information in our files. Roads fragment 

gopher tortoise habitat and populations, 

and proper management of these small 

habitat fragments (e.g., prescribed 

burning, invasive species control) 

becomes complicated (FWC 2006, p. 

10). Highway mortality of gopher 

tortoises is probably greatest in urban 

areas with heavy vehicular traffic and a 

relatively high number of displaced 

tortoises (Mushinsky et al. 2006, p. 362). 

The Service’s 1990 Gopher Tortoise 

Recovery Plan for the western portion of 

the gopher tortoise’s range discusses the 

conversion of natural pine habitat to 

other uses and describes similar effects 

that are also occurring within the 

eastern portion of the gopher tortoise’s 

range (U.S. Fish and Wildlife Service 

1990, p. 9). Since this recovery plan was 

written, other researchers have supplied 

evidence that fire suppression and the 

decline of prescribed fire in both natural 

pine forests and pine plantations have 

resulted in a substantial decline in 

gopher tortoise habitat (FWC 2006, p. 

10). Auffenburg and Franz (1982, p. 106) 

reported that tortoise densities are 

highest in fire-adapted associations 

(sand pine-scrub oak and longleaf pineoak) or early successional stages (beach 

scrub and old-field). In the absence of 

fire, each of these associations would 

eventually be replaced by 

predominantly evergreen hardwood 

communities, in which tortoises are 

generally less abundant (Auffenburg and 

Franz 1982, pp. 106-107). 

In summary, we find that the 

information provided in the petition, as 

well as other information in our files, 

presents substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted 

due to habitat destruction (especially 

from urbanization and the conversion of 

natural pine habitat to pine plantations) 


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Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Proposed Rules 46405 

and fire suppression in natural pine 

forests. 

B. Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes 

The petition states that harvesting of 

gopher tortoises is now prohibited by all 

States throughout its range; however, 

commercial hunters continue to illegally 

collect gopher tortoises for their meat 

(Puckett and Franz 2001, p. 6). The 

petitioners note that in Florida there has 

been a long history of human predation 

on tortoises, especially in the western 

Panhandle. For example, prior to the 

closure of tortoise harvest in the late 

1980s, one community in Okaloosa 

County held an annual tortoise cookout 

(FWC 2006, p. 4). Auffenberg and Franz 

(1982, p. 103) found that tortoise 

populations in longleaf pine-turkey oak 

(Quercus laevis) habitat in the Florida 

Panhandle averaged only 20 percent of 

the density of populations in similar 

habitat in the peninsula of Florida. 

Although the petition provides some 

information about human predation on 

tortoises in the Florida Panhandle, it 

does not present information on human 

predation in other areas of Florida or 

elsewhere in the eastern portion of the 

range. However, information in our files 

indicates that the tortoise was used for 

food throughout its range during the 

1930s (‘‘Great Depression’’) and as late 

as the 1980s in some parts of the range. 

Although this activity may have abated, 

the taking of adult gopher tortoises can 

result in long-term negative effects on 

populations. Since tortoises already 

have high juvenile and hatchling 

mortality, require a long time to reach 

sexual maturity, and have a low 

reproductive rate, populations can show 

substantial effects from the loss of 

reproducing adults. 

The petition also provides 

information indicating that other human 

activities focused on other species 

negatively affect gopher tortoises. For 

example, although ‘‘rattlesnake roundups’’ have decreased throughout the 

gopher tortoise’s range, they are still 

occurring in South Georgia (Humane 

Society of the United States 2005, p. 1). 

Collection methods for these round-ups 

include pouring gasoline into snakes’ 

hiding places, which include gopher 

tortoise burrows. The petitioners note 

that Florida has banned the use of 

gasoline to collect rattlesnakes from 

gopher tortoise burrows (Florida 

Administrative Code, 68A-4.001(2)) and 

has banned tortoise races (Florida 

Administrative Code, 68A-25.002(9) and 

(10)). However, these activities persist 

in other States such as Georgia and 

Alabama. 

The petition also contends that past 

gopher tortoise harvesting during 

rattlesnake roundups would most likely 

explain why tortoises are absent from 

some seemingly appropriate habitat 

(Hermann 2002, p. 295). We have 

evidence in our files indicating this 

activity did occur, at least historically. 

As stated previously, some activities, 

although historical in nature, may have 

lasting effects on populations, but the 

magnitude of these effects is unknown 

at this time. 

In summary, the petition provides 

information on the impacts of past and 

present commercial and recreational 

activities on tortoises. However, it is 

difficult to determine from either the 

information submitted with the petition 

or the information in our files the 

current and projected extent and 

magnitude of these impacts on the 

gopher tortoise throughout all or a 

significant portion of its eastern range. 

Therefore, we find that the petition does 

not present substantial information for 

this factor. 

C. Disease or Predation 

The petitioners provide information 

that the bacterial disease known as 

upper respiratory tract disease (URTD) 

has become more widespread among 

gopher tortoises (Seigel 2003, p. 138). 

This disease is highly contagious and is 

transmitted by close contact between 

tortoises, as during courtship or male 

combat (Mushinsky et al. 2006, p. 363). 

Symptoms of URTD can include 

swollen eyelids, nasal discharge, and 

severe respiratory distress (Seigel 2003, 

p. 139). The petition also includes 

information regarding the large-scale 

mortality of tortoises from URTD at 

several sites in Florida, including the 

unusually high mortality at the Kennedy 

Space Center between 1995 and 2000 

(Seigel 2003, pp. 138-139). Data show 

that tortoises of both genders and all age 

classes at the Kennedy Space Center 

were equally vulnerable to URTDrelated mortality and that an ‘‘across the 

board’’ decrease in tortoise numbers 

could be expected (Seigel 2003, p. 142). 

Although URTD can result in large-scale 

mortality of gopher tortoises, the 

petition does not provide information 

on the extent of this disease on the 

gopher tortoise in the eastern portion of 

its range. Information within our files 

indicates that URTD has the potential to 

influence survival and reproduction of 

individual tortoises, but definitive data 

are lacking (Brown et al. 2002, pp. 505- 

506); therefore, the current extent of the 

impact of this disease is difficult to 

determine within the eastern portion of 

the gopher tortoise’s range. 

The petition also includes 

information indicating that predators 

pose a significant threat to gopher 

tortoise population viability. The 

petition states that because of high nest 

loss to predators, a mature gopher 

tortoise may produce as few as one 

clutch every 10 years that actually 

survives. Predators destroy more than 

80 percent of gopher tortoise nests 

(Puckett and Franz 2001, p. 5). In South 

Carolina, 17 of 24 (74 percent) nests 

were destroyed by predators (Wright 

1982, p. 59). In Georgia, females are 

estimated to produce one clutch 

(approximately seven eggs per clutch in 

southern Georgia) annually; however, 

predators will destroy 87 percent of 

these clutches throughout that year 

(Landers and Garner 1981, p. 46). In 

northern Florida, gopher tortoises have 

been estimated to have a mortality rate 

of 94.2 percent during their first year of 

life (Alford 1980, p. 180). 

Epperson and Heise (2003, pp. 320 

and 322) showed in their study that 

survivorship of tortoise hatchlings was 

low with most (65 percent) killed within 

30 days of hatching. Information in our 

files indicates that the most significant 

egg and hatchling predator appears to be 

the raccoon (Procyon lotor) (Landers et 

al. 1980, p. 358); however, a variety of 

mammals are reported predators of 

gopher tortoise, including gray foxes 

(Urocyon cinereoargenteus), striped 

skunks (Mephitis mephitis), opossums 

(Didelphis virginiana), armadillos 

(Dasypus novemcinctus) (Landers et al. 

1980, p. 358), and dogs (Canis 

domesticus) (Causey and Cude 1978, pp. 

94-95). Introduced nonnative fire ants 

(Solenopsis saevissima or invicta) are 

also reported as hatchling predators 

(Landers et al. 1980, p. 358; Lohoefener 

and Lohmeier 1984, p. 5). 

Although disease and predation have 

resulted in the loss of gopher tortoises, 

the petition and information in our files 

do not provide sufficient information to 

show the extent to which these threats 

have affected or are expected to affect 

the gopher tortoise throughout all or a 

significant portion of its eastern range. 

Therefore, we find that the petition does 

not present substantial information for 

this factor. We will further review the 

role of disease and predation during our 

status review. 

D. Inadequacy of Existing Regulatory 

Mechanisms 

The petition asserts that although 

each State affords some protection to 

gopher tortoise in the eastern portion of 

its range, such State protections have 

been ineffective at preventing further 

declines. In Alabama, the tortoise is a 

State-protected nongame species; in 


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46406 Federal Register / Vol. 74, No. 173 / Wednesday, September 9, 2009 / Proposed Rules 

South Carolina, the species is listed as 

endangered; and in Georgia and Florida, 

the species is listed as threatened. 

In Florida, permits are required to 

take gopher tortoises (Florida 

Administrative Code, 68A-25.002 (9) 

and (10)). The petition claims that since 

1991, the permitting process used by the 

State of Florida has issued permits to 

‘‘entomb and kill’’ an estimated 67,000 

to 71,000 gopher tortoises for the 

construction of houses, strip malls, 

roads, and schools (Fleshler 2005, p. 1). 

However, the State of Florida’s first 

action is to prevent direct harm to 

tortoises through its permitting process. 

According to information in our files, at 

the time the petition was received, the 

FWC had a draft 2006 Management Plan 

to protect suitable habitat and relocate 

tortoises to this habitat. The extent of 

the impacts from relocation, either 

positive or negative, on this species 

throughout the eastern portion of the 

range is currently unknown. We will 

evaluate this during the status review. 

The information presented in the 

petition, as well as information in our 

files, does not present substantial 

information for this factor. Therefore, 

we have determined that the petition 

does not present substantial information 

that the gopher tortoise throughout all 

or a significant portion of its eastern 

range may be threatened due to the 

inadequacy of existing regulatory 

mechanisms. We will continue to 

evaluate this factor, including the longterm monitoring program of gopher 

tortoise translocation as described in the 

FWC draft 2006 Management Plan, 

during our status review of the gopher 

tortoise in the eastern portion of its 

range. 

E. Other Natural or Manmade Factors 

Affecting the Species’ Continued 

Existence 

The petition states that the previously 

identified threats are accentuated by the 

length of time required for gopher 

tortoises to reach sexual maturity and 

their low reproductive rate. The petition 

further states that the Service used this 

claim as one of the justifications for 

listing the gopher tortoise in the western 

portion of its range as threatened in 

1987 (52 FR 25376, July 7, 1987). The 

petitioners contend that this same 

rationale applies to the eastern portion 

of the range because the threats are 

similar to what the western portion of 

the range was facing at the time of 

listing. As described under the Species 

Information section above, female 

gopher tortoises do not reach sexual 

maturity until about 9 to 21 years of age; 

males mature at a slightly younger age 

(Cox et al. 1987, p. 17; Mushinsky et al. 

1994, p. 352; Aresco and Guyer 1999, 

pp. 503-504). As described above, 

because of the natural life history 

parameters of the gopher tortoise, 

including low reproductive rate and 

delayed age to sexual maturity, the 

mortality experienced by other threats 

can be amplified within populations. 

Therefore, we find that the information 

provided in the petition, as well as 

information in our files, presents 

substantial information indicating that 

the petitioned action may be warranted 

under this factor due to the natural life 

history of gopher tortoises. 

Finding 

On the basis of our review and 

evaluation under section 4(b)(3)(A) of 

the Act, we find that the petition 

presents substantial scientific or 

commercial information that listing the 

gopher tortoise to include the eastern 

portion of its range may be warranted 

due to current and future threats under 

Factors A and E. Therefore, we are 

initiating a status review to determine 

whether listing the eastern population 

of the gopher tortoise is warranted. To 

ensure that the status review is 

comprehensive (in conjunction with the 

status review we are conducting under 

the Act’s section 4(c)(2) of the listed 

western portion of the range), we are 

soliciting scientific and commercial data 

and other information regarding listing 

the gopher tortoise throughout all of its 

range. At the conclusion of the status 

review, we will issue a 12–month 

finding on the petition, announcing our 

determination of whether or not the 

petitioned action is warranted. 

The ‘‘substantial information’’ 

standard for a 90–day finding differs 

from the Act’s ‘‘best scientific and 

commercial data’’ standard that applies 

to a status review to determine whether 

a petitioned action is warranted. A 90– 

day finding does not constitute a status 

review under the Act. In a 12–month 

finding, we will determine whether a 

petitioned action is warranted after we 

have completed a thorough status 

review of the species, which is 

conducted following a substantial 90– 

day finding. Because the Act’s standards 

for 90–day and 12–month findings are 

different, as described above, a 

substantial 90–day finding does not 

mean that the 12–month finding will 

result in a warranted finding. 

References Cited 

A complete list of all references cited 

is available on the Internet at http:// 

www.regulations.gov and upon request 

from the Jacksonville Ecological 

Services Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Author 

The primary authors of this notice are 

the staff members of the Jacksonville 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Authority 

The authority for this action is the 

Endangered Species Act of 1973, as 

amended (16 U.S.C. 1531 et seq.). 

Dated: August 24, 2009. 

Daniel M. Ashe, 

Acting Director, U.S. Fish and Wildlife 

Service. 

[FR Doc. E9–21481 Filed 9–8–09; 8:45 am] 

BILLING CODE 4310–55–S 


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