Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules 4229

SUMMARY: This document denies Mr.

Alan F. Van Horen’s petition to amend

Federal Motor Vehicle Safety Standard

(FMVSS) No. 108, Lamps, reflective

devices, and associated equipment, to

permit an exterior lamp that would be

a visual indicator that the vehicle is in

its cruise control mode. The petition

provided no information to support the

petitioner’s contention that an exterior

lamp showing when a vehicle’s cruise

control was engaged would enhance

safety, nor does NHTSA’s experience

and judgment suggest any safety

benefits from such a lamp.

FOR FURTHER INFORMATION CONTACT: Mr.

Chris Flanigan, Office of Safety

Performance Standards, NHTSA, 400

Seventh Street, SW, Washington, DC

20590. Mr. Flanigan’s telephone number

is: (202) 366–4918. His facsimile

number is (202) 366–4329.

SUPPLEMENTARY INFORMATION: By letter

dated September 16, 1996, Mr. Van

Horen petitioned the agency to amend

FMVSS No. 108 to permit an exterior

lamp that would serve as a visual

indicator that a vehicle operator has

engaged the vehicle’s cruise control. Mr.

Van Horen stated that the indicator

would consist of a small green light

located in the driver-side tail light

housing and driver-side front parking

light housing. The indicator would be

illuminated when the vehicle’s cruise

control mode is activated. A silhouette

type insignia could be used for color

blind motorists. Mr. Van Horen argued

that the indicator would contribute to

highway safety by reducing

‘‘rubbernecking, accidents, and general

traffic gridlock.’’

To establish a new vehicle safety

specification, the agency decides, on the

basis of data and analyses, that there is

a significant safety problem and that the

safety problem would likely be reduced

by adopting that specification. The

petitioner asserted that an external

cruise control indicator would reduce

‘‘rubbernecking, accidents, and general

traffic gridlock.’’ However, the

petitioner did not provide any

information showing that that lack of a

cruise control indicator contributes to

crashes, nor is NHTSA aware of any

such information from other sources.

Regarding ‘‘rubbernecking,’’ the act of

observing nearby activity while driving,

the petitioner provided no information

about how this indicator would reduce

crashes occurring as a result of this act.

Absent such information, NHTSA’s

judgment is that ‘‘rubbernecking’’ would

not be reduced if vehicle operators were

aware that adjacent vehicle operators

had engaged their cruise control.

Regarding crashes, the petitioner did

not submit any information showing

how or how many crashes would be

prevented if vehicle operators had this

information about cruise control on

adjacent vehicles. The agency’s

judgment is that crashes would not be

reduced.

Finally, regarding the reduction of

traffic gridlock, the petitioner did not

submit any information as to how this

indicator would reduce gridlock. The

agency fails to see any relationship, let

alone one relating to safety, between

gridlock and vehicle operators’

knowledge of whether adjacent vehicle

operators have engaged their cruise

control.

The petitioner has submitted no

information to support the petition and

the agency’s judgment is that this

indicator would offer no discernable

safety benefit. At this time, NHTSA does

not believe that changing its agency

priorities or allocation of resources to

further investigate these types of lamps

would be beneficial to safety.

The agency also notes that the specific

solution chosen, a green lamp in the

same housing as a red tail lamp or an

amber or white front parking lamp (or

as pictured in the sample illustration

provided by the petitioner, optically

combined using a multi-color lens and

the same optical compartment), would

not be permissible under Federal rules.

There is a specific provision against any

lamp, reflective device, or other motor

vehicle equipment that impairs the

effectiveness of required motor vehicle

lighting equipment. The agency believes

that the proximity of the proposed green

lamp to the required lamps would

impair the effectiveness of required

lamps by altering the perceived color of

emitted light of the required lamp when

the auxiliary green lamp is activated.

In accordance with 49 CFR part 552,

this completes the agency’s review of

the petition. The agency has concluded

that there is no reasonable possibility

that the amendment requested by the

petitioner would be issued at the

conclusion of a rulemaking proceeding.

Accordingly, it denies Mr. Van Horen’s

petition.

Authority: 49 U.S.C. 30103, 30162;

delegation of authority at 49 CFR 1.50 and

501.8.

Issued on: January 22, 1997.

L. Robert Shelton,

Associate Administrator for Safety

Performance Standards.

[FR Doc. 97–2095 Filed 1–28–97; 8:45 am]

BILLING CODE 4910–59–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AD05

Endangered and Threatened Wildlife

and Plants; Proposed Rule to List the

Northern Population of the Bog Turtle

as Threatened and the Southern

Population as Threatened Due to

Similarity of Appearance

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: The U.S. Fish and Wildlife

Service (Service) proposes to list the

northern population of the bog turtle

(Clemmys muhlenbergii) as threatened

from New York and Massachusetts

south to Maryland; and the southern

population of bog turtle, which occurs

in the Appalachian Mountains from

southern Virginia to northern Georgia,

as threatened due to similarity of

appearance to the northern population,

with a special rule, pursuant to the

Endangered Species Act of 1973 Act), as

amended. The bog turtle is threatened

by a variety of factors which include:

habitat degradation and fragmentation

from agriculture and urban

development; habitat succession due to

invasive exotic and native plants; and

illegal trade and collecting.

DATES: Comments from all interested

parties must be received by April 29,

1997. Public hearing requests must be

received by March 17, 1997.

ADDRESSES: Comments and materials

concerning this proposal should be sent

to the Pennsylvania Field Office, U.S.

Fish and Wildlife Service, 315 South

Allen Street, Suite 322, State College,

Pennsylvania 16801. The complete file

for this rule is available for inspection,

by appointment, during normal business

hours at the above address.

FOR FURTHER INFORMATION CONTACT:

Carole Copeyon, Endangered Species

Biologist, at the above address

(telephone 814/234–4090; facsimile

814/234–0748).

SUPPLEMENTARY INFORMATION:

Background

The bog turtle was first described and

named as Muhlenberg’s tortoise

(Testudo muhlenbergii) by Johann David

Schoepff in 1801, based on specimens

received in 1778 from Reverend

Heinreich Muhlenberg of Lancaster

County, Pennsylvania. In 1835, L.J.

Fitzinger transferred the species to the

genus Clemmys, where it remains today
4230 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules

(Barton and Price 1955). In 1917, Dunn

considered the southern morph to be

distinct and classified the southern

population as Clemmys nuchalis (Amato

et al. 1993). This taxon was

subsequently synonymized with

Clemmys muhlenbergii and researchers

still question the taxonomic validity of

the northern and southern morphs

(Amato et al. 1993, Klemns in press).

Initial data from recent preliminary

genetic studies, based on examination of

variability at the 16S ribosomal gene,

suggest that there may not be any

significant genetic differences between

the northern and southern populations.

However, due to the conservative nature

of this gene in other turtle species, any

definitive conclusions concerning

genetic differences between the

northern and southern populations is

premature (Amato et al. 1993).

The bog turtle is sparsely distributed

over a discontinuous geographic range

extending from New England south to

northern Georgia. A 250-mile gap within

the range separates the species into

distinct northern and southern

populations (Klemens in press, Tryon

1990, Tryon and Herman 1990). The

northern population extends from

southern New York and western

Massachusetts southward through

western Connecticut, New Jersey and

eastern Pennsylvania, to northern

Delaware and Maryland. Disjunct

populations previously occurred in

western Pennsylvania and in the Lake

George and Finger Lakes regions of New

York. The western Pennsylvania and

Lake George populations have been

extirpated an only a remnant population

exists at two remaining sites in the

Finger Lakes region. The southern

population occurs in the Appalachian

Mountains from southwestern Virginia

southward through western North

Carolina, eastern Tennessee,

northwestern South Carolina and

northern Georgia.

Based on the disjunct distribution of

this species, and the recognition by

herpetologists of the existence of

distinct allopatric northern and

southern populations, the northern

population of the bog turtle for the

purposes of listing will be treated as a

species (a distinct vertebrate

population). The Act defines a species

to include any subspecies of fish or

wildlife or plants, or any distinct

population segment of any species of

vertebrate fish or wildlife which

interbreeds when mature.

The bog turtle is the smallest member

of the genus Clemmys, with the

carapace (upper shell) of adults

measuring 7.5–11.4 cm (3.0–4.5 in.) in

length (Bury 1979). The domed carapace

is weakly keeled and ranges in color

from light brown to ebony. The scutes

of the shell often have lighter-colored

centers resembling a starburst pattern

(Herman and George 1986). The plastron

(lower shell) is brownish-black with

contrasting yellow or cream areas, often

along the midline. This species is

readily distinguished from other turtles

by the large, conspicuous bright orange,

yellow or red blotch found on each side

of the head. The species is sexually

dimorphic. Males have concave

plastrons and long, thick tails and the

vent is located beyond the posterior

carapace margin. Females have

proportionately higher carapaces, flat

plastrons, relatively short tails, and the

vent is located beneath the carapace

edge (Bury 1979. Klemens In press).

Bog turtles are semi-aquatic and are

only active during part of the year

(Barton and Price 1955). In the northern

part of their range, they are active from

April to mid-October (Arndt 1977,

Nemuras 1976). The difficulty of

locating turtles in July and August may

be a result of inactivity during that

period (Lovich et al. 1992). Bog turtles

hibernate from October to April, often

just below the upper surface of frozen

mud or ice (Chase el al. 1989). Their

varied diet consists of beetles,

lepidopteran larvae, caddisfly larvae,

snails, nematodes, millipedes, fleshy

pondweed seeds, sedge seeds, and

carrion (Barton and Price 1955, Nemura

1967). Where population estimates are

available, bog turtles have been found at

densities ranging from 7 to 213 turtles

per hectare (Chase et al. 1989). Chase et

al. (1989) found an average of 44 turtles

per site at his 9 Maryland study sites.

Female bog turtles reach sexual

maturity between 5 and 8 years of age

(Barton and Price 1955, Ernst 1977).

Mating occurs in May and June, and in

June or July, females deposit from two

to six white eggs in sphagnum moss or

sedge tussocks (Arndt 1977, Herman

1990, Herman and George 1986,

Klemens in press). The eggs hatch after

an incubation period of 42 to 56 days

(Arndt 1977, Herman 1990) and the

young emerge in August or early

September (Arndt 1977, Barton and

Price 1955). Infertile eggs are common

(Arndt 1977, Herman 1990, Tryon 1990)

and not all females produce clutches

annually (Tryon 1990). Also, there is no

evidence to suggest that multiple

clutches are deposited in a single

season.

Bog turtles inhabit shallow, spring-fed

fens, sphagnum bogs, swamps, marshy

meadows and pastures which have soft,

muddy bottoms; slow-flowing water;

and open canopies (Arndt 1977, Barton

and Price 1955, Herman and George

1986, Klemens in press). In Maryland,

Chase et al. (1989) reported that bog

turtles were found in circular basins

with spring-fed pockets of shallow

water, a substrate of soft mud and rock,

dominant vegetation of low grasses and

sedges, and interspersed wet and dry

pockets. In these types of habitats, bog

turtles often utilize the runways or

muskrats and meadow voles (Barton and

Price 1955, Nemuras 1967, Taylor et al.

1984). Bog turtles range in elevation

from near sea level in the north to 1500

m (4500 feet) in the south (Herman and

George 1986).

Bog turtles are usually found in small,

discrete populations in wetland habitats

that are a mosaic of micro-habitats

which include dry pockets, saturated

areas, and areas that are periodically

flooded (Collins 1990). They depend

upon this diverse hydrological mosaic,

utilizing shallow water in spring, and

returning to deeper water in winter

(Chase et al. 1989). Unless disrupted by

fire, beaver activity, grazing, or periodic

wet years; open-canopy wetlands are

slowly invaded by woody vegetation.

They undergo a transition and become

closed-canopy, wooded swamplands

that are unsuitable for habitation by bog

turtles (Klemens in press, Tryon 1990).

Historically, bog turtles probably moved

from one open-canopy wetland patch to

another, as succession closed wetland

canopies in some areas, and natural

processes (beaver activity or fire)

opened canopies in other areas

(Klemens 1989).

Several plant species commonly

associated with bog turtles habitats are:

alders (Alnus sp.). willows (Salix sp.),

sedges (Carex sp.), sphagnum moss

(Sphagnum sp.), jewelweed (Impatiens

capensis), rice cut-grass (Leersia

oryzoides), tearthumb (Polygonum

sagittatum), arrow arum (Peltandra

virginica), red maple (Acer rubrum),

skunk cabbage (Symplocarpus foetidus)

and bulrushes (Juncus sp. and Scirpus

sp.) (Arndt 1977, Barton and Price 1955,

Herman and George 1986, Taylor et al.

1984). Pedestal vegetation, such as

tussock sedge (C. stricta) and sphagnum

moss, are utilized for nesting and

basking (Gelvin-Innvaer and Stetzar

1992, Klemens in press).

Presently, many wetlands occupied

by bog turtles in agricultural areas are

subject to livestock grazing. Light to

moderate grazing many function to

impede succession by preventing or

minimizing the encroachment of

invasive native and exotic plant species

and it appears that moderate grazing

helps to maintain an intermediate stage

of succession (Smith 1994, Tryon 1990).

Due to the rarity in nature, its small

size, and unique habitats, it is difficult
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules 4231

to obtain reliable bog turtle population

demographics. This lack of data has led

to a misconception as to the number of

healthy populations found throughout

the species’ range. For example, some of

the sites documented to support healthy

populations consist primarily of old

individuals. These populations are

slowly disappearing due to negligible

recruitment of juveniles over a

sustained period of time (Klemens

1989).

A model, based on habitat

characteristics, was developed to assess

the capacity of sites to maintain viable

populations of bog turtles. Known as the

‘‘Standardized Bog Turtle Site-quality

Analysis’’ (Klemens, Wildlife

Conservation Society, in litt. 1993), it

groups bog turtle occurrences into sites

based on the likelihood of turtles

moving between documented

occurrence locations and interbreeding.

A site is ranked according to four

factors: habitat size and degree of

fragmentation; the presence of invasive

plants and later successional species;

immediate threats such as ditching,

draining, filling or excavating the

wetland; and the type and extent of land

use practice in the area. Where adequate

data are available, sites are also ranked

according to population size and

evidence of recruitment.

By using this site-quality analysis in

1993 and 1994, the suitability of almost

every known northern population site

was assessed and ranked by individuals

(the primary bog turtle researcher(s) in

each state) most familiar with each site.

The ranking process resulted in each

site receiving a numerical score, and

based on these scores each site was then

ranked as good, fair or poor. These

rankings represent the suitability of the

available habitat needed to maintain a

viable bog turtle population. The

classification system was based on

researchers’ best professional judgments

regarding site suitability. The

classifications based upon these scores

are conservative for several reasons.

Threats from illegal collecting were not

considered in the rankings. Rankings

were often based on interpretation of

old maps (more than 10 years old).

Recent land use changes such as

development were not considered, and

at some sites the presence of turtles was

not confirmed for over 10 years.

Occurrence refers to a documented

specific bog turtle location (a single

wetland or a road-crossing sighting), one

or more of which are included in a site.

Due to widespread wetland habitat

fragmentation throughout the turtle’s

range, most sites are often comprised of

only one small extant occurrence, often

isolated from other such occurrences.

In 1994, there were 165 known extant

bog turtle sites within the northern

population, 35 were classified as good,

57 as fair and 73 as poor. Since 1994,

an additional 38 sightings were

reported, 24 of which occurred in the

State of New Jersey. The state-by-state

summaries given below present

information primarily about the status

and distribution of extant northern bog

turtle populations/sites within each

state.

In Connecticut, bog turtles are found

in the northwestern corner of the State

in Fairfield and Litchfield counties. All

five remaining populations are found on

private lands; four of these populations

are classified as fair and one as poor

(Julie Victoria, Connecticut Division of

Wildlife, in litt. 1994).

In Delaware, bog turtles were

historically reported from 11 localities

in the piedmont and coastal plain of

New Castle County (Arndt 1977).

Presently, only four sites are known to

support bog turtles; two occur on state

lands and two on private property (Lisa

Gelvin-Innvaer, Jay Greenwood and Bill

Zawaki, Delaware Division of Fish and

Wildlife, in litt. 1994).

All three known bog turtle

populations in Massachusetts occur on

private property in southern Berkshire

County. Two of these sites receive some

degree of protection through landowner

conservation agreements. One

population is considered good, one fair

and one poor.

Maryland’s 65 remaining extant bog

turtle sites occur in the piedmont region

of Baltimore, Carroll, Cecil and Harford

counties, with approximately 97 percent

of the habitat privately owned and the

other 3 percent in state ownership (Scott

Smith, Maryland Department of Natural

Resources, in litt. 1994). Seventeen of

these sites are classified as good, 23 as

fair and 25 as poor. In 1995–1996, five

additional bog turtle sightings were

documented from Harford, Baltimore,

and Carol counties. However, most of

these documented occurrences are

components of previously identified

and ranked sites (Smith, in litt. 1996).

In New Jersey, there are 35 known

remaining bog turtle sites in Burlington,

Hunterdon, Monmouth, Morris, Ocean,

Sussex and Warren counties (James

Sciascia, New Jersey Department of

Fish, Game and Wildlife, and Robert

Zappalorti, Herpetological Associates,

Inc., in litt. 1994). Ten of these sites are

classified as good, 10 as fair and 15 as

poor. Approximately 90 percent of the

turtle habitat in New Jersey is privately

owned, with the state and Federal

governments owning 5 percent each

(Siascia and Zappalorti, in litt. 1994).

Recent surveys conducted by the New

Jersey Endangered and Nongame

Species Program located an additional

24 bog turtle sites. From 1993–1995, the

habitat suitability of 473 wetlands in

Hunterdon, Somerset, Sussex, and

Warren counties was assessed. Only 77

(16 percent) sites contained suitable

habitat and bog turtles were found at

only 8 of these wetlands (Sciascia 1996).

In 1996, additional surveys conducted

in Sussex County turned up 16 new bog

turtle occurrences in calcareous fen

habitats. These fens are restricted to a 40

square mile area in central Sussex and

northern Warren counties. The 24

occurrences that were located between

1993 and 1996 were not evaluated using

the Standardized Bog Turtle Site-quality

Analysis. However, many of these new

sightings are located near previously

reported sites and are possibly parts of

these sites (James Sciascia, New Jersey

Department of Fish, Game and Wildlife,

in litt. 1996).

The discovery of bog turtles in

calcareous fen habitats is important to

their conservation within this area of

New Jersey and neighboring

Pennsylvania. Fens are primarily shrub

and herb communities formed in lowlying areas where groundwater

percolates over limestone bedrock. This

alkaline seepage water most likely

retards the growth of canopy-closing

trees such as red maple. This type of

shrub/herb community can persist

virtually unaltered, which could

account for the presence of bog turtles

(James Sciascia, New Jersey Department

of Fish, Game and Wildlife, in litt.

1996).

The bog turtle’s range in New York is

concentrated primarily in the extreme

southeastern corner of the state.

Disjunct populations historically

occurred in the Lake George area in

eastern New York, in the Finger Lakes

region in western New York, and in

southcentral New York. The Lake

George and southcentral populations

have been extirpated, and only two

extant bog turtle sites in Oswego and

Seneca counties remain in the Finger

Lakes region (Alvin Breisch and

Michael Kallaji, New York Department

of Environmental Conservation, and

Paul Novak, New York Natural Heritage

Program, in litt. 1994). Twenty-two

potential sites remain in southeastern

New York and only 17 are extant. Of the

19 remaining sites in New York

(Oswego, Seneca, Columbia, Dutchess,

Putnam, and Orange counties), 5 are

considered good, 7 fair and 7 poor.

Nearly all bog turtle habitat (99 percent)

occurs on private lands; the remaining

1 percent is found on state lands

(Breisch et al., in litt. 1994).
4232 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules

In Pennsylvania, bog turtles are still

found in 13 of the 17 counties from

which the species was previously

reported (Adams, Berks, Bucks, Chester,

Cumberland, Franklin, Lancaster,

Lebanon, Lehigh, Monroe, Montgomery,

Northampton and York). Of the 34

remaining sites, 2 sites are considered

good, 8 fair and 24 poor. Approximately

85 percent of the bog turtle habitat is

found on private lands, with the

remainder occurring on state and

Federal lands (10 percent and 5 percent,

respectively) (Barton, in litt. 1994).

Between 1994 and 1996, 9 new sightings

were reported from Berks, Chester, and

North Hampton counties. These sites

have yet to be evaluated and appear to

be small and marginal in quality.

Based in documented losses of bog

turtles and their habitat, the northern

population has declined by at least 50

percent over the last 20 years. Habitat

destruction and illegal collecting for the

pet trade are the primary threats to the

species. Widespread alteration of bog

turtle habitat has resulted in the

draining, ditching, dredging, filling and

flooding of wetlands for residential,

urban and commercial development;

road construction; agricultural

activities; and, pond and reservoir

construction. The proximity of many

remaining bog turtle populations to

rapidly developing areas also poses a

significant threat to the species.

Previous Federal Action

The bog turtle was first recognized as

a Category 2 candidate species by the

Service in the December 30, 1982

Federal Register Notice of Review (47

FR 58454). It was later retained as a

Category 2 species in subsequent notices

of review (50 FR 37958 September 18,

1995; 54 FR 554 January 6, 1989; and 56

FR 58804 November 21, 1991).

Reclassification of the bog turtle to

Category 1 was reflected in the

November 15, 1994 Animal Notice of

Review (59 FR 58982). On February 28,

1996 (61 FR 7457), the Service

published a notice of review that no

longer included species formerly

referred to as Category 2 candidate

species. The notice revised the

definition of the term ‘‘candidate’’ as

taxa for which the Service has on file

sufficient information on biological

vulnerability and threats to list them

and endangered or threatened species.

The northern population of bog turtle

was included as a candidate on this

February 28 Notice of Review.

In the September 17, 1996, Notice (61

FR 48962) on priority guidance for

Fiscal Year 1997, the guidance calls for

giving highest priority to handling

emergency situations (Tier 1) and

second highest priority (Tier 2) to

resolving the listing status of the

outstanding proposed listings. At this

time, there is only one pending higher

priority action in the Northeast Region

and it will be handled by March, 1997.

Thus, processing of this proposed rule

to list the northern population of bog

turtle as threatened is designated as a

Tier 3 activity under the guidance and

has been processed accordingly.

In 1975, the bog turtle was added to

Appendix II of the Convention on

International Trade in Endangered

Species of Wild Fauna and Flora

(CITES) in order to monitor trade in the

species. In 1991, the New York

Zoological Society submitting a

proposal to the Service requesting the

transfer of the bog turtle from Appendix

II to Appendix I of CITES (Anon. 1991).

In response to a Notice (56 FR 33895);

July 24, 1991) calling for changes to the

CITES Appendices, a total of 13

comments were received concerning the

bog turtle proposal. All commentors

recommended transferring the bog turtle

from Appendix II to Appendix I

because: the increase number of bog

turtles being advertised for sale, the

increased being paid for individuals and

pairs, and illegal trade was not being

reported under CITES. In the March 4,

1992 Federal Register Notice (57 FR

7722), the Service announced that the

Party members to CITES agreed to

transfer the bog turtle from Appendix II

to Appendix I; and on June 11, 1992, the

species was officially added to

Appendix I.

Summary of Factors Affecting the

Species

Section 4 of the Endangered Species

Act and regulations (50 CFR part 424)

promulgated to implement the listing

provisions of the Act set forth the

procedures for adding species to the

Federal lists. 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). These factors and their

application to the bog turtle (Clemmys

muhlebergii) are as follows:

A. The Present or Threatened

Destruction, Modification, or

Curtailment of Its Habitat or Range

Habitat loss is a major factor for the

past and present decline of bog turtles

throughout much of their range.

Wetland habitats have been drained and

filled for development, agriculture, road

construction, and impoundments. These

activities have also severely fragmented

the remaining habitat and have created

physical barriers to movement; thus

isolating existing bog turtle populations

from other such sites. Development and

agriculture continue to cause indirect

hydrological alterations of adjacent

wetland habitats by changing the

surface water flow into or out of

occupied wetlands habitats. Stormwater

retention basins in upland areas, if not

maintained, lose their ability to store

adequate stormwater for release into

adjacent bog turtle habitat (Larry Torok,

New Jersey Department of

Environmental Protection and Energy,

pers. comm. 1994). Development in the

vicinity of wetlands also pose a threat

when the water table is lowered due to

the sinking of wells or if roads act as

barriers to the normal flow of surface

water (Klemens 1988, 1989). Urban and

commercial development contribute to

increased traffic (leading to increased

bog turtle road kills), surface water

pollution, and the accelerated

succession of existing vegetation.

Untimely mowing or burning and the

use of herbicides and pesticides on

adjacent agricultural fields also degrade

bog turtle habitat (klemens 1988). Many

wetlands occupied by bog turtles are

located in agricultural areas that are

subject to frequent livestock grazing.

Light to moderate grazing functions to

impede plant succession by minimizing

the encroachment of invasive native and

exotic plant species. However, heavy

grazing destroys bog turtle habitat by

cropping and trampling vegetation that

is necessary for turtle nesting, basking,

foraging and cover.

Three of Connecticut’s eight known

bog turtle sites have already been

extirpated. A Fairfield County

population was obliterated by industrial

development, and two Litchfield County

populations were destroyed by pond

construction. In addition, residential

development and natural plant

succession are responsible for the

partial loss of two extant populations in

Litchfield and Fairfield counties

(Victoria, in litt. 1994).

Only a small fraction of Delaware’s

freshwater wetlands are potential bog

turtle habitat, and between 40 and 60

percent of the state’s freshwater

wetlands have already been lost (Tiner

1985). The four remaining bog turtle

populations are threatened by invasive

exotic plant species, collecting, and

development (Gelvin-Innvaer and

Stetzar 1992).

Of the 178 bog turtle occurrences

(Taylor et al. 1984) representing 90 sites

in Maryland, 25 have been lost in the

last 15 years (Smith, in litt. 1994). Plant

succession and exotic plant invasions

have caused the extirpation of turtles at

several sites, but most sites were lost

due to wetland destruction and

alteration, and stream channelization. In
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules 4233

addition, heavy grazing has been

implicated in the loss of at least six sites

(Smith, in litt. 1994).

Of the remaining 65 sites, 17 are

considered good, 23 fair and 25 poor.

Habitat at 31 of these sites has been

partially destroyed or degraded. Causes

of habitat loss include pond

construction (6 sites), filling of wetlands

(1 site), heavy grazing (4 sites), and the

ditching, draining, tiling and stream

channelization (13 sites) (Smith, in litt.

1994). In addition, flooding of turtle

habitat from beaver activity poses a

threat to many of the remaining

populations.

In Massachusetts, there are four

recorded sites for the state; three extant

and one historic. The historical

population was lost when the fen was

inundated after dam construction. Of

the three remaining extant populations,

one site is threatened by the

encroachment of giant reed and another

site is threatened both by residential

development and invasion of giant reed

and alder (Klemens 1988). Although

there are conservation agreements in

place to protect the above two sites, they

do not address the threats to habitat

quality. In 1986, the fen at the poor site

was ditched and the water was diverted

for cattle use. The water supply has

subsequently been restored to the fen

and the habitat partially restored.

However, much of the suitable bog

turtle habitat in the state continues to be

threatened by annual burning, severe

overgrazing and chemical pollution

from agricultural runoff (Klemens 1986,

1988).

Bog turtles have been extirpated from

10 of the 17 New Jersey counties in

which they occurred (Bergen, Camden,

Cape May, Gloucester, Mercer,

Middlesex, Passaic, Salem, Somerset

and Union counties). Surveys

conducted in 1988 and 1989 revealed

that 44 of the 68 known historic sites no

longer appear to support bog turtles

(Anon. 1991). By 1994, at least 53 sites

had been lost; 33 to urban and

commercial development and wetland

alteration, and the remainder to plant

community succession and the invasion

of exotic plants (Sciascia and Zappalorti

1989, Sciascia and Zappalorti, in litt.

1994). One bog turtle site was recently

destroyed when stormwater runoff from

a development cut a channel through

the wetland; thus draining the wetland

and changing its vegetative composition

(Torok, pers. comm. 1994). Many of the

remaining populations are close to

urban and suburban areas (the

Philadelphia, Camden, and Trenton

areas, and the New York City area) and

are imminently threatened by

development and collecting. Of the 35

remaining bog turtle sites in New Jersey

(Sciascia and Zappalorti, in litt. 1994),

10 are considered good, 10 fair and 15

poor.

Bog turtles were reported from 17

counties in New York, but have been

eliminated from 11 counties (Albany,

Genessee, Onondaga, Otsego, Rockland,

Sullivan, Tompkins, Ulster, Warren,

Wayne and Westchester) (Breisch et al.,

in litt. 1994). Of New York’s 24

remaining sites, only 19 populations are

extant; five are considered good, 7 fair

and 7 poor. This represents a significant

reduction in range and reflects the loss

of at least 33 of 57 bog turtle sites.

The bog turtle’s range in New York is

now limited to the Lower Hudson River

and Housatonic River drainages in the

southeastern corner of the state, and to

two sites in western New York. In

western New York, five of the seven

historic bog turtle sites have been lost.

Two sites were eliminated due to plant

community succession; one was

destroyed by a sand and gravel

operation; and two were eliminated due

to plant succession and hydrological

alteration associated with agricultural

practices and construction of the Erie

Canal (Breisch et al., in litt, 1994;

Collins 1990). Loss of the disjunct

population in the Lake George

watershed is attributed to plant

succession, while the loss of

Susquehanna River drainage population

was caused by the construction of an

interstate highway (Breisch et al., in litt.

1994).

At least twenty-six known bog turtle

sites have been lost in southeastern New

York due primarily to road construction,

impoundments, plant succession and

development. In addition, the historic

bog turtle sites on Staten Island were

eliminated by development (Nemuras

1967). In western New York, the

viability of the only two remaining sites

is questionable. In 1989, no turtles were

located during surveys conducted at the

Oswego County site. The Seneca County

site is threatened by over-collecting,

plant succession and construction of an

interstate highway through a wetland

within 200 feet of existing bog turtle

habitat (Breisch et al., in litt. 1994).

Of the remaining 24 bog turtle sites in

New York, most are of poor habitat

quality. The presence of bog turtles at 5

sites is highly questionable since turtles

have not been reported from these sites

for 15 to 25 years. Most of the existing

sites suffer from habitat degradation due

to residential and commercial

development, road construction and

vegetational succession. At least 99

percent of bog turtle habitat in New

York occurs on private lands and all but

two of the remaining populations are

found in areas of high human

population density.

In Pennsylvania, 28 of the 62 known

bog turtle sites have been extirpated,

especially in Mercer, Crawford,

Delaware and Philadelphia counties.

The reasons for the loss of a disjunct

population represented by 3 historic

locations in the northwestern counties,

are unknown. However, much of the

historic bog turtle habitat at Pymatuning

Swamp was destroyed by construction

of a dam.

Most bog turtle habitat is concentrated

in the southeastern corner of the state,

within portions of the Delaware and

Susquehanna river drainages.

Development and urbanization, road

construction, and agriculture are largely

responsible for the loss of bog turtle

habitat in southeastern Pennsylvania

and also several large cites are located

in this area (Philadelphia, Harrisburg,

Reading, Lancaster, and York). In the

early 1960s, Robotham (in Nemuras

1967) documented the destruction of

two bog turtle sites in Chester County

(in the West Chester-Downingtown

area). One site was destroyed after a

road was constructed through the center

of the marsh and the marsh was drained

for development. The other site was

destroyed by a road bypass, commercial

development, and excavation of a lake.

B. Overutilization for Commercial,

Recreational, Scientific, or Educational

Purposes

The bog turtle is a target for pet

collectors due to its rarity in the wild,

distinctive coloration, and small size.

Take (primarily illegal) both for the

national and international commercial

pet trade industry has occurred for

many years. Collecting is a significant

factor for the species decline and is an

ongoing threat to its continued existence

in the wild (Anon. 1991; Earley 1993;

David Flemming, U.S. Fish and Wildlife

Service, in litt. 1991; Herman 1990;

Klemens in press; Stearns et al. 1990;

Tryon 1990; Tryon and Herman 1990).

During the last 5 to 10 years, an

increasing number of bog turtles have

been advertised for sale, and prices have

increased substantially. This increase in

price most likely reflects the increase in

demand for the turtles; therefore,

increasing the threats to the wild

populations (Tryon and Herman 1990).

Atlanta Zoo personnel reported that

from 1989 to early 1991, over 100 bog

turtles were exported to Japan. These

figures differ significantly from CITES

data and represent a significant amount

of unreported illegal trade (Anon. 1991).

The World Wildlife Fund recently listed

bog turtles as among the world’s top 10
4234 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules

‘‘most wanted’’ endangered species

(Earley 1993).

Due to the threats facing bog turtle

populations, the Society for the Study of

Amphibians and Reptiles adopted a

resolution calling for the prohibition of

collection from wild populations

(Stearns et al. 1990). Due to the small

size of existing populations and the low

reproductive and recruitment potential

of this species, the removal of even a

few breeding adults can do irrevocable

damage to a population (Tryon 1990).

Over-collecting has caused the

reduction or extirpation of several bog

turtle populations in Delaware (Anon.

1991), Maryland (Anon. 1991; Smith, in

litt. 1994), Massachusetts (Anon. 1991),

New Jersey (Farrell and Zappalorti 1989;

Zappalorti, pers. comm. 1994), New

York (Breisch, in litt. 1993; Breisch et

al., in litt. 1994; Collins 1990), and

Pennsylvania (Ralph Pisapia, U.S. Fish

and Wildlife Service, in litt. 1992).

Many sites in these states have suitable

habitat; but have a much-reduced bog

turtle population, probably due to

overcollecting.

Throughout its entire range, states

regulate take through classification of

the species as endangered (in

Connecticut, Delaware, Massachusetts,

New Jersey, New York, Pennsylvania

and Virginia) or threatened (in Georgia,

Maryland, North Carolina, South

Carolina and Tennessee), yet trade in

specimens continues.

Illegal trade is difficult to detect due

to the questionable origin of turtles

being offered for sale. Bog turtles are

often ‘‘laundered’’ through states which

either do not have native populations

(e.g., West Virginia, Florida, California),

or through states which have inadequate

protection of their own bog turtle

populations (Charles Bepler, U.S. Fish

and Wildlife Service, in litt. 1993;

Breisch, in litt. 1993; Michael Klemens,

in litt. 1990). Hatchling and juvenile

turtles marketed as ‘‘captive-born’’ are

usually offspring from gravid adult

females illegally brought into captivity

and held until they deposit eggs. The

eggs are then hatched in captivity, and

the captive-born (but not captive-bred)

offspring are then marketed or retained

(Bepler, in litt. 1993).

A few specific instances of illegal bog

turtle collecting and trade are reported

below:

(1) An undercover office purchased

eight bog turtles from a person who had

collected them near Lancaster,

Pennsylvania. Also, two additional bog

turtles were recovered from persons

who had gotten them from friends

allegedly in the New York area (Bepler,

in litt. 1993);

(2) An individual from New Jersey

was arrested for bringing bog turtles

from New Jersey to Florida and selling

them as captive born. It is suspected

that he collected about six turtles per

year over a period of several years

(Bepler, in litt. 1993);

(3) A reliable source in New York

reported that over 2000 wild-caught bog

turtles were shipped to Japan in a 2-year

period (Murdock, in litt. 1990);

(4) Researchers found several turtle

traps and a much diminished bog turtle

population at an important bog turtle

site in Pennsylvania (Pisapia, in litt.

1992); and,

(5) In 1993, a New Jersey resident

purchased 47 bog turtles in Florida and

since 1984 had also bought 20

additional bog turtles. This individual

supposedly has an active breeding

program for bog turtles (Terry Tarr, U.S.

Fish and Wildlife Service, in litt. 1993).

The general consensus among bog

turtle researchers, nongame biologists

and law enforcement officials is that

illegal collecting is occurring at a much

greater rate than previously reported

(Anon. 1991; Breisch, in litt. 1993;

Flemming, in litt. 1991). Bog turtles are

already extremely low in numbers

throughout their range, and any

additional take could eliminate

marginal populations and hamper

survival and recovery efforts.

Protecting existing sites for bog turtles

can pose a threat when these specific

sites are revealed and publicized. In

addition to threats from the pet trade

industry, bog turtles have been collected

for exhibition at nature centers (Anon.

1991). Tryon and Herman (1990) report

that on more than one occasion,

landowners, fearing involvement from

state or federal authorities, have drained

(ditched) bog turtle habitat after

researchers visited the site.

C. Disease or Predation

Bog turtles (particularly the eggs and

young) are preyed upon by raccoons,

opossums, skunks, foxes, snapping

turtles, water snakes and large birds

(Herman and George 1986). Predation by

raccoons appears to increase in areas

with high human density, since

raccoons favor fragmented areas

consisting of farmland, forests and

residential development (Klemens

1989). In some cases, predation

contributes to population declines by

impairing reproductive recruitment so

that the population age structure is

skewed toward older individuals

(Zappalorti and Rocco 1993).

D. The Inadequacy of Existing

Regulatory Mechanisms

Bog turtles receive some degree of

protection through state listings as

endangered or threatened species and

take from the wild within all range

states requires a valid permit.

In Connecticut, the bog turtle is listed

as endangered and the take of an

endangered species is prohibited.

Regulations require that any person

owning or possessing a bog turtle, must

register with the Wildlife Bureau of the

Department of Environmental

Protection. There are no special

provisions for the protection of species

of special concern under Connecticut’s

wetland laws and regulations and only

about 10 percent of the permits issued

by townships are checked for species of

special concern (Doug Cooper,

Connecticut Department of

Environmental Protection, pers. comm.

1994).

The bog turtle is listed as endangered

in Delaware and except under permit, it

is unlawful to import, transport, possess

or sell this species. Currently, there is

no regulatory mechanism to protect

wetland habitat since Delaware’s

wetland laws only address tidal

wetlands.

In 1972, the bog turtle was listed as

endangered in Maryland when only 5 of

the 23 then known historic locations

were extant. However, it was removed

from the state endangered species list in

1982, after 173 new occurrences were

discovered during surveys conducted

between 1976 and 1978 (Smith 1994,

Taylor et al. 1984). In 1992–1993, the

Maryland Department of Natural

Resources conducted follow-up surveys

of the 178 locations documented to

support bog turtle (Taylor et al. 1984).

Of the 159 locations surveyed, bog turtle

were found at 91 locations; this

represents a 43 percent reduction of bog

turtle occurrences over a 15-year period

(Smith 1994). Based on the results of

these recent surveys, bog turtles are now

classified as threatened in Maryland.

They also receive additional protection

under the State’s Reptile and

Amphibian Possession and Permit

Regulations, which regulate the

possession, breeding, sale and trade of

certain native reptiles and amphibians.

Under these regulations, it is illegal to

take bog turtles from the wild or to

breed them in captivity. In addition, the

regulations prohibit the possession, sale,

offering for sale, trade or barter of any

turtle with a carapace length less than

4 inches (which applies to most bog

turtles due to their small size).

A portion of bog turtle habitat in

Maryland receives some degree of
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules 4235

protection under the Nontidal Wetlands

Protection Act. Habitat in agricultural

areas receives little or no protection due

to the Act’s exemption of agricultural

activities from permit requirements.

The species is classified as

endangered in Massachusetts and it is

unlawful to take or possess bog turtles

without a permit. Currently no person

in the state has a valid permit to possess

bog turtles (Tom French, Massachusetts

Department of Fisheries and Wildlife,

pers. comm. 1994). Its habitat receives

some degree of protection under the

Massachusetts Wetlands Protection Act,

which prohibits permitted projects from

having an adverse effect on wetland

habitat that support endangered and

threatened species, or species of special

concern. The Act also allows for a 100-

foot buffer zone around such wetlands

when activities in the buffer zone could

result in the alteration of adjacent

wetlands (Melvin and Roble 1990).

In New Jersey, the bog turtle is listed

as endangered. It is unlawful to take,

possess, transport, export, process, sell,

offer for sale, or ship bog turtles without

a permit. Bog turtle habitat receives

some protection under the Exceptional

Resource Value Wetland provision of

New Jersey’s Freshwater Wetland

Protection Act. This Act allows for a

150-foot buffer zone around wetlands, a

stringent permit review process, and

prohibits activities that would likely

jeopardize or destroy bog turtles habitat

(Torok, pers. comm., 1994). Most

agricultural activities are exempt from

these regulations.

In New York, the bog turtle is listed

as endangered and the animal and its

parts (including eggs) are protected from

unauthorized take, import, transport,

possession, or sale. Wetlands occupied

by an endangered or threatened species

are classified as Class 1 Wetlands and

they receive some protection from

filling and excavation. Certain activities

such as draining of wetlands for

agriculture, are exempted from

permitting requirements, as long as no

excavations are required to accomplish

the draining.

In Pennsylvania, the bog turtle is

listed as endangered. It is illegal to

catch, take, kill, possess, import, export,

sell, offer for sale, or purchase any

individual of this species, alive or dead,

or any part thereof, without a special

permit. Bog turtle habitat receives some

degree of protection under state wetland

regulations, which categorize wetlands

that serve as habitat for endangered or

threatened flora or fauna as

‘‘exceptional value wetlands.’’ Issuance

of permits to alter such wetlands is

contingent upon meeting specific

requirements.

The U.S. Army Corps of Engineers

(Corps) under section 404 of the Clean

Water Act regulates the discharge of all

fill into waters of the United States,

including navigable waters and

wetlands. The Clean Water Act requires

that project proponents obtain a permit

from the Corps before undertaking any

activity that would result in the fill of

waters under the Corps’ jurisdiction.

The Corps has promulgated

nationwide permits in order to provide

some measure of regulatory relief.

Nationwide permits pre-authorize

certain activities which meet special

regulatory conditions. A predetermination is made that certain

activities will have minimal cumulative

and environmental effects.

Massachusetts has revoked nationwide

permits and has adopted a State

Programmatic General Permit. This

general permit further refines the

criteria for which projects require

individual review.

The Corps promulgated nationwide

permit Number 26 (see 33 CFR

330.5(1)(26)) to address fill in isolated

or headwater wetlands totalling less

than 10 acres in size. Under this permit,

proposals that involve the fill of

wetlands less than one acre in size are

automatically authorized. When fills

adversely modify anywhere between 1

to 10 acres of wetland, the Corps

circulates a predischarge notification to

the Service and other interested parties

for comment in order to determine

whether a permit is required for a

proposed fill and its associated impacts.

The review process for the issuance of

individual permits is more rigorous than

for nationwide permits. Individual

permit applicants are require to undergo

a mitigation sequencing process that

includes avoidance, minimization and

compensation for any adverse

environmental impacts. Unlike

nationwide permits, an analysis of

cumulative wetland impacts is required.

However, standards have not been set

for cumulative effect thresholds beyond

those for which permitting activities are

already restricted.

For nationwide permits, the Corps has

discretionary authority to require an

applicant to seek an individual permit

if the Corps deems that the resources are

important, regardless of the wetland’s

size. The Corps rarely requires an

individual permit when a project

qualifies under a nationwide permit,

unless a threatened or endangered

species or other significant resources are

adversely affected by a proposed

activity.

The bog turtle could potentially be

affected by a project requiring a permit

from the Corps under section 404 of the

Clean Water Act. The bog turtle is

effected by agricultural practices which

are exempt from regulation under

section 404 of the statute. In addition to

a Federal exemption for maintenance of

existing agricultural drainage systems,

other exempted activities include

plowing, planting and harvesting in

existing cropped wetlands as long as the

activity is part of an on-going farming

operation.

Finally, under section 401 of the

Clean Water Act, all Federal permit

actions, including section 404 activities,

must also meet individual State Water

Quality Standards. If a state views an

activity as inconsistent with their

Federally-approved standards, the state

can deny certification.

While all range states have legislation

protecting bog turtles from take, lack of

uniform protection throughout the

United States imperils the species by

creating loopholes for illegal take and

trade (Klemens, in litt. 1990). In

addition, destruction and alteration of

habitat are major factors for its decline,

yet state and Federal provisions for

protection of its habitat are non-existent.

Wetlands inhibited by bog turtles are

generally small, wet-vegetated, springfed bogs. These wetlands are often

considered of low value and are

drained, filled or converted into ponds,

despite Federal and state wetland

regulations. Due to provisions

(agricultural exemptions, Nationwide

Permits) in Federal and state wetland

regulations, these wetlands are often

given minimal regulatory protection.

On July 1, 1975, the bog turtle was

added to Appendix II of the Convention

on International Trade in Endangered

Species of Wild Fauna and Flora

(CITES) and on June 11, 1992 (57 FR

20443), it was transferred from

Appendix II to Appendix I. Both import

and export permits are required from

the importing and exporting countries

before an Appendix I species can be

transported, and an Appendix I species

can not be exported for primarily

commercial purposes. CITES permits

are not issued if the export will be

detrimental to the survival of the

species or if the specimens were not

legally acquired.

E. Other Natural or Manmade Factors

Affecting its Continued Existence

Plant community succession and the

invasion of wetland systems by exotic

plant species have also contributed to

the decline of the bog turtle. Wetland

habitats are in a state of transition;

unless set back by fire, beaver activity,

light to moderate grazing, or periodic

wet years. The habitat continues to

succeed into wooded swampland and
4236 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules

becomes unsuitable for bog turtles.

Various human activities, such as fire

suppression, beaver control, fertilizer

runoff, draining and ditching, and

filling of wetlands accelerate both

natural succession and the invasion of

exotic plants (Gelvin-Innvaer and

Stetzar 1992, Klemens 1984).

Development and agriculture adjacent

to bog turtle habitat can result in soil

disturbance and increases in the

nutrient and sediment load, thus

allowing for the invasion of exotic

species, such as multiflora rose, purple

loosestrife, giant reed and reed canary

grass, as well as native species such as

red maple and alder (Klemens 1984,

1989, and in press).

Beavers pose a threat to isolated bog

turtle populations by flooding the

remaining suitable habitat within a

watershed. Smith (in litt. 1994) reported

that flooding caused by beavers now

poses a threat to three bog turtle

populations in Maryland.

Thick deposits of iron bacteria,

suggesting possible contamination from

pollutants, have been found at three bog

turtle sites in Maryland. Reptile and

amphibian populations at these sites are

much lower in numbers than one would

expect based on the habitat

characteristics (Smith, in litt. 1994).

Wetland habitats are also vulnerable to

pollutants (oil and grease) carried by

stormwater runoff. Farrell and

Zappalorti (1989) reported that one New

Jersey wetland occupied by bog turtles

was degraded by trash and motor oil

that was carried through a storm drain.

The bog turtle is also vulnerable to

local extirpation and rangewide

reduction due to: (1) the small numbers

of individuals within many populations;

(2) the isolation of existing populations;

(3) the delay in reaching sexual

maturity; (4) low juvenile recruitment

rates; and (5) relatively low mobility

and small home ranges (Arndt 1977,

Chase et al. 1989). Isolation of

populations prevents gene flow which

can result in an inbred population with

low fecundity. Further, isolation/habitat

fragmentation prevents recolonization of

existing habitat or colonization/

expansion into newly created habitats

(Collins 1990).

Vehicles and livestock pose a direct

threat to bog turtles by killing and

injuring individuals. Roads near sites

contribute significantly to mortality as is

evidenced by the number of dead turtles

found along roadsides. Roads that are

adjacent to or within wetlands pose the

greatest threat to bog turtles (Arndt

1977). Large numbers of livestock

within a wetland can also pose a threat

by actually stepping on bog turtles (M.

Klemens, pers. comm., S. Smith, pers.

comm.).

In developing this proposed rule, the

Service has assessed the best available

scientific and commercial information

regarding the past, present and future

threats faced by the species. Based on

this evaluation, the preferred action is to

list the northern population of the bog

turtle as threatened and the southern

population as threatened due to

similarity of appearance. In spite of

existing state protective regulations, the

northern population has declined by

approximately 50 percent over the past

20 years, and has experienced a

significant decrease in its known range.

Presently, less than 200 active sites

remain in the north. Most of these

consist of small wetlands isolated from

one another and often in close

proximity to human habitation. Critical

habitat will not be proposed at this time

for the northern population of bog

turtles for the following reasons.

Critical Habitat

Critical habitat is defined in section 3

of the Act as: (1) the specific areas

within the geographical area occupied

by a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management considerations or

protection and; (ii) specific areas

outside the geographical area occupied

by a species at the time it is listed, upon

a determination that such areas are

essential for the conservation of the

species. Conservation means the use of

all methods and procedures need to

bring the species to the point at which

listing under the Act is no longer

required.

Section 4(a)(3) of the Act, as

amended, and implementing regulations

(50 CFR 424.12) require that, to the

maximum extent prudent and

determinable, the Secretary designate

critical habitat at the time the species is

determined to be endangered or

threatened. The Service finds that

designation of critical habitat is not

prudent for the bog turtle at this time.

Service regulations (50 CFR

424.12(a)(1)) state that designation of

critical habitat is not prudent when one

or both of the following situations exist:

(1) The species is threatened by taking

or other human activity, and

identification of critical habitat can be

expected to increase the degree of threat

to the species, or (2) such designation of

critical habitat would not be beneficial

to the species.

The publication of precise maps and

descriptions of critical habitat in the

Federal Register would increase the

vulnerability of the bog turtle to

collection. Listing of the bog turtle as

threatened also elevates the awareness

to the rarity of the species, thereby

increasing the likelihood of take by

private and commercial collectors. The

listing could lead to increased illegal

take and the risk of eggs being

accidentally destroyed by collectors

searching for adult turtles.

Designation of critical habitat could

also increase the vulnerability of bog

turtle habitat to intentional destruction

by landowners who do not want a

protected species on their property.

Based on past and continuing threats to

the bog turtle and its habitat from illegal

collecting and vandalism, the

designation of critical habitat at this

time would significantly increase these

threats. Therefore, the Service has

determined that designation of critical

habitat at this time is not prudent.

Protection of bog turtle habitat will be

addressed through the recovery and

section 7 consultation process.

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the Act include

recognition, recovery action,

requirements for Federal protection, and

prohibitions against certain practices.

Recognition through listing encourages

and results in conservation actions by

Federal, state, and private agencies,

groups, and individuals. The Act

provides for possible land acquisition

and cooperation with the states, and

requires that recovery actions be carried

out for all listed species. The protection

required of Federal agencies and the

prohibitions against taking and harm are

discussed, in part, below.

Section 7(a) of the Act, as amended,

requires Federal agencies to evaluate

their actions with respect to any species

that is proposed for listing or is listed

as endangered or threatened and with

respect to critical habitat, if any is being

designated. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR Part

402. Section 7(a)(4) requires Federal

agencies to confer with the Service on

any action that is likely to jeopardize

the continued existence of a species

proposed for listing or result in

destruction or adverse modification of

proposed critical habitat. If a species is

subsequently listed, section 7(a)(2)

requires Federal agencies to ensure that

activities they authorize, fund, or carry

out are not likely to jeopardize the

continued existence of the species or

destroy or adversely modify its critical

habitat. If a Federal action could affect
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules 4237

a listed species or its critical habitat, the

responsible Federal agency must enter

into consultation with the Service.

Federal agency actions that may

require conference and/or consultation

as described in the preceding paragraph

include Army Corps of Engineers

(Corps) involvement in projects such as

the construction of roads and bridges,

and the permitting of wetland filling

and dredging projects subject to section

404 of the Clean Water Act (33 U.S.C.

1344 et seq.) and section 10 of the

Rivers and Harbors Act of 1899 (33

U.S.C. 401 et seq.); National Resources

Conservation Service projects; U.S.

Environmental Protection Agency

authorized discharges under the

National Pollutant Discharge

Elimination System and U.S. Housing

and Urban Development projects. In

addition, Federal involvement under

section 7 would be expected for

management and other land use

activities on Federal lands with bog

turtle populations.

The Act and implementing

regulations set forth a series of general

prohibitions and exceptions that apply

to all threatened wildlife. The

prohibitions, codified at 50 CFR 17.21,

in part, make it illegal for any person

subject to the jurisdiction of the United

States to take (includes harass, harm,

pursue, hunt, shoot, wound, kill, trap,

capture, or collect; or to attempt any of

there), import or export, ship in

interstate commerce in the course of

commercial activity, or sell or offer for

sale in interstate or foreign commerce

any listed species. It is also illegal to

possess, sell, deliver, carry, transport, or

ship any such wildlife that has been

taken illegally. Certain exceptions apply

to agents of the Service and state

conservation agencies.

Permits may be issued to carry out

otherwise prohibited activities

involving threatened wildlife under

certain circumstances. Regulations

governing permits are codified at 50

CFR 17.22 and 17.23. Such permits are

available for scientific purposes, to

enhance the propagation or survival of

the species, and/or for incidental take in

the course of otherwise lawful activities.

For threatened species, permits also are

available for zoological exhibition,

educational purposes, or special

purposes consistent with the purposes

of the Act.

It is the policy of the Service (59 FR

34272; July 1, 1994) to identify to the

maximum extent practicable at the time

a species is listed those activities that

would or would not constitute a

violation of section 9 of the Act. The

intent of this policy is to increase public

awareness of the effect of the listing on

proposed and ongoing activities within

a species’ range. The Service believes,

based on the best available information,

that the following actions will not result

in a violation of section 9:

(1) Transferring individual turtles

from roads to immediately adjacent

habitat;

(2) Light to moderate livestock grazing

that prevents or minimizes the

encroachment of invasive native and

exotic plant species;

(3) Possession of legally acquired bog

turtles; and

(4) Actions that may affect bog turtles

and are authorized, funded or carried

out by a Federal agency when the action

is conducted in accordance with section

7 of the Act.

With respect to both the northern and

southern populations of the bog turtle,

the following actions would be

considered a violation of section 9:

(1) Take of bog turtles without a

permit (this includes harassing,

harming, pursuing, hunting, shooting,

wounding, killing, trapping, capturing,

or collecting, or attempting any of these

actions). However, with respect solely to

the southern population, incidental take

(see special rule below) would not be

considered a violation of section 9;

(2) Possess, sell, deliver, carry,

transport, or ship illegally taken bog

turtles:

(3) Interstate and foreign commerce

(commerce across state and

international boundaries) and import/

export (as discussed earlier in this

section) without prior obtaining a

threatening species, similarity of

appearance, or CITES permit.

With respect solely to the northern

population, activities that the Service

believes could result in the take of bog

turtles include, but are not limited to:

(1) Destruction or alteration of the

species habitat: by draining, ditching,

discharging fill material, impoundment,

water diversion, or activities that result

in the destruction or severe degradation

of wetland vegetation used by the turtles

for nesting, basking, foraging or cover,

except as outlined in (4) above; and

(2) Discharging or dumping of toxic

chemicals or other pollutants into

wetlands occupied by the species.

Questions regarding whether specific

activities may constitute a violation of

section 9 should be directed to the Field

Supervisor of the appropriate Service

Field Office as follows: in Pennsylvania,

the Pennsylvania Field Office, 315 S.

Allen Street, Suite 322, State College,

PA 16801 (814/234–4090); in Maryland

and Delaware, the Chesapeake Bay Field

Office, 177 Admiral Cochrane Drive,

Annapolis, MD 21401 (410/224–2732);

in New York, the New York Field

Office, 3817 Luker Road, Cortland, NY

13045 (607/758–9334); in Massachusetts

and Connecticut, the New England Field

Office, 22 Bridge Street, Concord, NH

03301–4986 (603/225–1411); and, in

New Jersey, the New Jersey Field Office,

927 North Main Street, Building D1,

Pleasantville, NJ 08232 (609/747–0620).

Requests for copies of the regulations

regarding listed wildlife and inquiries

about prohibitions and permits may be

addressed to U.S. Fish and Wildlife

Service, 300 Westgate Center Drive,

Hadley, Massachusetts 01035 (telephone

413/253–8200; facsimile 413/253–8482).

Similarity of Appearance

Section 4(e) of the Act authorizes the

treatment of a species (subspecies or

population segment) as endangered or

threatened even though it is not

otherwise listed as endangered or

threatened if: (a) The species so closely

resembles in appearance an endangered

or threatened species that enforcement

personnel would have substantial

difficulty in differentiating between the

listed and unlisted species; (b) the effect

of this substantial difficulty is an

additional threat to an endangered or

threatened species; and (c) such

treatment of an unlisted species will

substantially facilitate the enforcement

and further the policy of the Act.

There are only slight morphological

differences in this species throughout its

range (Amato et al. 1993; Nemuras

1967), making it extremely difficult to

differentiate where bog turtles are taken

from. Presently, the origin and legality

of a specimen (specific wetland, locality

or state) cannot be determined. This

poses a problem for Federal and state

law enforcement agents trying to stem

illegal trade in the threatened northern

population. The listing of the southern

population as threatened due to

similarity of appearance eliminates the

ability of commercial collectors to

commingle northern bog turtles with

southern ones or to misrepresent them

as southern bog turtles for commercial

purposes. For these reasons, the Service

proposes to list the southern population

(occurring in the states of Georgia, North

Carolina, South Carolina, Tennessee and

Virginia) as threatened due to similarity

of appearance to the northern

population.

The special rule exempts incidental

take of the southern population of bog

turtles. Incidental take is take that

results from, but is not the purpose of,

carrying out an otherwise lawful

activity. For example, legal application

of pesticides and fertilizers, livestock

grazing and other farming activities,

mowing, burning, water diversion, and

any other legally undertaken actions
4238 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules

that result in the accidental take of a bog

turtle will not be considered a violation

of section 9 of the Endangered Species

Act in the Southern states of Georgia,

North Carolina, South Carolina,

Tennessee, and Virginia. The Service

does not consider the southern

population of bog turtles to be

biologically threatened or endangered

and believes that listing the southern

population under the similarity of

appearance provision of the Act,

coupled with the special rule,

minimizes enforcement problems and

helps to conserve the northern

population. It is the intent of the special

rule to treat bog turtles from the

southern population in the same way as

the threatened northern population with

regard to permit requirements for preAct wildlife (50 CFR 17.4) or captive

bred wildlife (50 CFR 17.21(g)).

Public Comments Solicited

The Service intends that any final

action resulting from this proposal will

be as accurate and as effective as

possible. Therefore, comments or

suggestions from the public, other

concerned governmental agencies, the

scientific community, industry, or any

other interested party concerning this

proposed rule are hereby solicited.

Comments particularly are sought

concerning:

(1) Biological, commercial trade (legal

and illegal), or other relevant data

concerning any threat (or lack thereof)

to this species;

(2) The location of any additional

populations or occurrences of this

species;

(3) Additional information concerning

the range, distribution, and population

size of this species;

(4) Current or planned activities in the

subject area and their possible impacts

on this species; and

(5) The number, origin, location and

legal disposition of bog turtles in

captivity and/or trade.

Final promulgation of the regulations

on this species will take into

consideration the comments and any

additional information received by the

Service, and such communications may

lead to a final regulation that differs

from this proposal.

The Endangered Species Act provides

for one or more public hearings on this

proposal, if requested. Requests must be

received within 45 days of the date of

publication of the proposal in the

Federal Register. Such requests must be

made in writing and addressed to Field

Supervisor (see ADDRESSES section).

Required Determinations

The Service has examined this

proposed regulation under the

Paperwork Reduction Act of 1995 and

found it to contain no information

collection requirements. This

rulemaking is not subject to review by

the Office of Management and Budget

under Executive Order 12866.

National Environmental Policy Act

The Fish and Wildlife Service has

determined that Environmental

Assessments and Environmental Impact

Statements, as defined under the

authority of the National Environmental

Policy Act of 1969, need not be

prepared in connection with regulations

adopted pursuant to Section 4(a) of the

Endangered Species Act of 1973, as

amended. A notice outlining the

Service’s reasons for this determination

was published in the Federal Register

on October 25, 1983 (48 FR 49244).

References Cited

A complete list of all references cited

herein is available upon request from

the U.S. Fish and Wildlife Service,

Pennsylvania Field Office (see

ADDRESSES section).

Author

The primary author of this document

is Carole K. Copeyon (see ADDRESSES

section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements, and

Transportation.

Proposed Regulation Promulgation

Accordingly, the Service hereby

proposes to amend part 17, subchapter

B of chapter I, title 50 of the Code of

Federal Regulations, as set forth below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat 3500, unless otherwise noted.

2. Section 17.11(h) is amended by

adding the following, in alphabetical

order under ‘‘Reptiles,’’ to the List of

Endangered and Threatened Wildlife, to

read as follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

* * * * * * *

REPTILES

* * * * * * *

Turtle, bog

(=Muhlenberg).

Clemmys

muhlenbergii.

U.S.A. (CT, DE, GA,

MD, MA, NC, NJ,

NY, PA, SC, TN,

VA).

Entire, except GA,

NC, SC, TN, VA.

T .................... NA NA

Do ..................... ......do ..................... ......do ..................... U.S.A. (GA, NC,

SC, TN, VA).

T(S/A) .................... NA 17.42(f)

* * * * * * *

3. Amend § 17.42 by adding

paragraph (f) to read as follows:

§ 17.42 Special rules—reptiles.

* * * * *

(f) Bog turtle (Clemmys muhlenbergii),

southern population—(1) Definitions.

For the purpose of this paragraph (f):

bog turtle of the southern population

shall mean any member of the species

Clemmys muhlenbergii, within Georgia,

North Carolina, South Carolina,

Tennessee and Virginia, regardless of

whether in the wild or captivity, and
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules 4239

shall also apply to the progeny of any

such turtle.

(2) Except as provided in paragraph

(f)(3) of this section, the provisions of

§ 17.31 (a) and (b) of this part shall

apply to bog turtles of the southern

population (see also 50 CFR part 23).

(3) Take. Incidental take, that is, take

that results from, but is not the purpose

of, carrying out an otherwise lawful

activity, shall not apply to bog turtles of

the southern population.

Dated: January 17, 1997.

George T. Frampton, Jr.,

Assistant Secretary for Fish and Wildlife and

Parks.

[FR Doc. 97–2101 Filed 1–28–97; 8:45 am]

BILLING CODE 4310–55–M

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 678

[I.D. 092396B]

Atlantic Shark Fisheries; Extension of

Comment Period

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Extension of comment period.

SUMMARY: NMFS extends the comment

period for a proposed rule to adjust

quotas and bag limits in the Atlantic

Shark Fishery that was published in the

Federal Register on December 20, 1996.

The proposed rule would establish

quotas and bag limits and implement

prohibitions and requirements to reduce

effective fishing mortality, facilitate

enforcement, and improve management.

DATES: Written comments on the

proposed rule must be received on or

before February 7, 1997.

ADDRESSES: Written comments should

be sent to William T. Hogarth, Chief,

Highly Migratory Species Management

Division (F/SF1), Office of Sustainable

Fisheries, National Marine Fisheries

Service, 1315 East-West Highway, Room

14853, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: C.

Michael Bailey or John Kelly, 301-713-

2347; fax 301–713–1917.

SUPPLEMENTARY INFORMATION: Although

NMFS previously extended the

comment period from January 21, 1997,

to January 24, 1997 (62 FR 1872, January

14, 1997), NMFS has received requests

from the affected public that more time

is necessary to submit their comments

on the Atlantic shark fishery proposed

rule (61 FR 67295, December 20, 1996).

The proposed rule, as published, would

reduce commercial quotas and

recreational bag limits; establish a quota

for small coastal sharks; prohibit the

directed commercial fishing for, and

landing or sale of, five species of sharks;

establish a recreational tag-and-release

only fishery for white sharks; prohibit

filleting of sharks at sea; and restate the

requirement for species-specific

identification by all owners or

operators, dealers, and tournament

operators of all sharks landed.

Authority: 16 U.S.C. 1801 et seq.

Dated: 23 January 1997.

George H. Darcy,

Acting Director, Office of Sustainable

Fisheries, National Marine Fisheries Service.

[FR Doc. 97–2107 Filed 1–24–97; 10:00 am]

BILLING CODE 3510–22–F