        DEPARTMENT OF TRANSPORTATION
        Federal Railroad Administration
        49 CFR Part 234
        [Docket No. FRA-2009-0032; Notice No. 3]
        RIN 2130-AC20
        State Highway-Rail Grade Crossing Action Plans

          AGENCY:
          Federal Railroad Administration (FRA), Department of Transportation (DOT).

          ACTION:
          Notice of proposed rulemaking (NPRM).

          SUMMARY:

          On September 2, 2009, FRA published a direct final rule in the Federal Register requiring the ten States with the most highway-rail grade crossing collisions, on average, over the past three years, to develop State highway-rail grade crossing action plans. FRA received one adverse comment regarding the direct final rule. Under FRA regulations, FRA must withdraw a direct final rule where an adverse comment is submitted. As a result, in a separate document elsewhere in this issue of the Federal Register, FRA is publishing a removal of the direct final rule provisions, which removes the changes effected by the direct final rule. FRA is also contemporaneously publishing this NPRM. The NPRM complies with a statutory mandate that the Secretary of Transportation (Secretary) issue a rule to require the ten States with the most highway-rail grade crossing collisions, on average, over the past three years, to develop State highway-rail grade crossing action plans. This proposed rule is not intended for general application; instead, it would only apply to the ten identified States with the most highway-rail grade crossing collisions over the specified period of time. The proposed rule addresses the contents of the highway-rail grade crossing action plans and certain time periods for plan implementation and coverage.

          DATES:

            Written Comments: Written comments on the proposed rule must be received by December 14, 2009. Comments received after that date will be considered to the extent possible without incurring additional expense or delay.

            Public Hearing: If any person desires an opportunity for oral comment, he or she should notify FRA in writing and specify the basis for the request. FRA will schedule a public hearing in connection with this proceeding if the agency received a written request for a hearing by December 14, 2009.

          ADDRESSES:

            Comments: Comments related to Docket Number FRA-2009-0032, may be submitted by any of the following methods:
          • Fax: 1-202-493-2251.
          • Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave., SE., W12-140, Washington, DC 20590.
          • Hand Delivery: Room W12-140 on the Ground level of the West Building, 1200 New Jersey Ave., SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal Holidays.
          • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

            Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information. Please see the Privacy Act heading later in this document for more Privacy Act information.

            Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time, or to Room W12-140 on the Ground level of the West Building, 1200 New Jersey Ave., SE., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal Holidays.

          FOR FURTHER INFORMATION CONTACT:
          Ron Ries, Office of Safety, FRA, 1200 New Jersey Ave., SE., RRS-23, Mail Stop 25, Washington, DC 20590 (Telephone 202-493-6299), or Zeb Schorr, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Ave., SE., Mail Stop 10, Washington, DC 20590 (Telephone 202-493-6072).

        SUPPLEMENTARY INFORMATION:
        I. Withdrawal of Direct Final Rule

        Pursuant to FRA's direct final rulemaking procedures set forth at 49 CFR 211.33, FRA published a direct final rule in the Federal Register on September 2, 2009 (74 FR 45336). FRA received one adverse comment regarding the direct final rule. Pursuant to 49 CFR 211.33(d), FRA must withdraw a direct final rule where an adverse comment is submitted. FRA issued and submitted a notice of withdrawal to the Federal Register; however, due to regulatory production schedules and time constraints, the direct final rule was not withdrawn before its effective date. As a result, FRA is publishing a removal of the direct final rule provisions in this issue of the Federal Register, which removes the changes effected by the direct final rule, while contemporaneously publishing this NPRM.
        II. Notice of Proposed Rulemaking
        A. Background
        The proposed rule is intended to reduce collisions at highway-rail grade crossings in the ten identified States, and to comply with section 202 of the Rail Safety Improvement Act of 2008 (RSIA), Public Law 110-432, Division A, which was signed into law on October 16, 2008. Section 202 requires the Secretary (delegated to the Federal Railroad Administrator by 49 CFR 1.49) to identify the ten States that have had the most highway-rail grade crossing collisions, on average, over the past three years, and to require those States to develop State highway-rail grade crossing action plans, within a reasonable period of time, as determined by the Secretary. Section 202 further provides that these plans must identify specific solutions for improving safety at crossings, including highway-rail grade crossing closures or grade separations, and must focus on crossings that have experienced multiple accidents or are at high risk for such accidents. FRA recommends that the action plans include a proposed implementation schedule, although FRA recognizes that any such schedule would be subject to many factors, including the availability of funds and personnel. In addition, any implementation schedule would only be for the purpose of providing quality planning for the timelines identified.
        Section 202 also provides the following: The Secretary will provide assistance to the States in developing and carrying out such plans, as appropriate; the plans may be coordinated with other State or Federal planning requirements; the plans will cover a period of time determined to be appropriate by the Secretary; and the Secretary may condition the awarding of any grants under 49 U.S.C. 20158, 20167, or 22501, to a State identified under this section, on the development of such State's plan.
        Lastly, section 202 provides a review and approval process under which, not later than 60 days after the Secretary receives such a State action plan, the Secretary must review and either approve or disapprove it. In the event that the proposed plan is disapproved, section 202 indicates that the Secretary shall notify the affected State as to the specific areas in which the proposed plan is deficient, and the State shall correct all deficiencies within 30 days following receipt of written notice from the Secretary.
        B. State Identification

        As discussed, Congress expressly directed the Secretary to identify the ten States that have had the most highway-rail grade crossing collisions, on average, over the past three years. FRA maintains a database of highway-rail grade crossing accidents/incidents occurring at public and private grade crossings, as such events must be reported to FRA pursuant to 49 CFR 225.19. From this database, FRA has identified the ten States with the most reported highway-rail grade crossing accidents/incidents at public and private grade crossings during 2006, 2007, and 2008, to be, as follows: Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Ohio, and Texas. FRA will issue letters to these identified States and copies of such letters will be placed in the public docket of this proceeding.
        C. Time Period To Develop State Action Plan and Duration of Plan
        Section 202 instructs the Secretary to determine the reasonable period of time within which the ten identified States must develop a State highway-rail grade crossing action plan and the period of time to be covered by such a plan. Based on previous experience working with States on highway-rail grade crossing action plans, FRA has determined that States can reasonably develop such plans within one year from the date this regulation goes into effect, and that such plans should cover a period of five years. A five-year period is appropriate because many of the remedial actions that may be included in these plans (e.g., closures and grade separations) may take up to five years to implement. In addition, any identified State that has already developed an action plan in conjunction with a recommendation from DOT's Office of Inspector General must ensure compliance with any final rule arising from this NPRM and must resubmit the plan as required.
        D. Assistance and Coordination

        FRA would be available, including FRA regional grade crossing managers and FRA experts from the grade crossing and trespasser prevention division, to provide assistance to States in developing and carrying out, as appropriate, the proposed State highway-rail grade crossing action plans. FRA's Safetydata Web site (http://www.safetydata.fra.dot.gov) also contains detailed data that may be of use in the development of the plans. In addition, the proposed State highway-rail grade crossing action plans may be coordinated with other State or Federal planning requirements. For example, States may want to coordinate such plans with their Strategic Highway Safety Plans that are required by SAFETEA-LU, as appropriate.
        E. Conditioning the Awarding of Grants
        Section 202 also empowers the Secretary to condition the awarding of any grants under 49 U.S.C. 20158, 20167, or 22501, to an identified State under this section on the development of such State's plan. Although FRA does not anticipate employing this authority, FRA reserves its right to pursue such a course of action in the event that an identified State fails to comply with a final rule that arises from this proposed rule.
        F. Section-by-Section Analysis

          Section 234.1. This paragraph discusses the scope of this part. The amendment proposed to this paragraph would include reference to § 234.11, State Highway-Rail Grade Crossing Action Plans, as being within this part's scope.

          Section 234.3. This paragraph discusses what entities are subject to this part. The amendment proposed to this paragraph would except § 234.11, State Highway-Rail Grade Crossing Action Plans, from discussion in this section.

          Section 234.4. This paragraph discusses the preemptive effect of this part. The amendment proposed to this paragraph would permit State tort actions, arising from events or activities occurring on or after January 18, 2002, that: Allege a violation of the Federal standard of care established by this part; allege a failure to comply with a party's own plan, rule, or standard created pursuant to this part; or allege a violation of a State law, regulation, or order that is necessary to eliminate or reduce an essentially local safety or security hazard, is not incompatible with a law, regulation, or order of the United States Government, and does not unreasonably burden interstate commerce.

          Section 234.6(a) and (b). These paragraphs discuss the civil and criminal penalties a person may be subject to when violating requirements of this part. The amendment proposed to these paragraphs would provide that a violation of § 234.11, State Highway-Rail Grade Crossing Action Plans, would not give rise to either a civil or criminal penalty.

          Section 234.11(a). This paragraph discusses that the purpose of this proposed rule is to reduce collisions at highway-rail grade crossings in the ten identified States that have had the most highway-rail grade crossing collisions, on average, over the past three years. This paragraph proposes to make clear that the regulation would not restrict any other State, or other entity, from adopting a highway-rail grade crossing action plan, nor would it restrict any of the identified States from adopting a plan with additional or more stringent requirements not inconsistent with this regulation.

          Section 234.11(b). This paragraph proposes that this section would apply to the ten States that have had the most highway-rail grade crossing collisions, on average, during the calendar years 2006, 2007, and 2008.

          Section 234.11(c). This paragraph proposes to require that each of the ten identified States develop a State highway-rail grade crossing action plan and submit such plans to FRA for review and approval not later than one year after the date this proposed regulation goes into effect. This paragraph also details the proposed requirements of the State highway-rail grade crossing action plans, including that the plans: Identify specific solutions for improving safety at crossings, including highway-rail grade crossing closures or grade separations; focus on crossings that have experienced multiple accidents or are at high risk for such accidents; and cover a five-year period.

          Section 234.11(d). This paragraph identifies the FRA contact information to which the identified States must direct the proposed highway-rail grade crossing action plans for review and approval. This paragraph also proposes that FRA would review and approve or disapprove a State highway-rail grade crossing action plan within 60 days of receiving the plan. This paragraph further proposes that, if the proposed State highway-rail grade crossing action plan is disapproved, FRA would notify the affected State as to the specific areas in which the proposed plan is deficient, and the State would have to correct all deficiencies within 30 days following receipt of written notice from FRA. Lastly, this paragraph proposes that FRA may condition the awarding of any grants under 49 U.S.C. 20158, 20167, or 22501 to an identified State on the development of that State's highway-rail grade crossing action plan.
        G. Regulatory Impact and Notices
        Executive Order 12866 and DOT Regulatory Policies and Procedures

        This discussion represents the regulatory impact analysis (RIA). There is not a separate RIA for inclusion in the public docket. This NPRM has been evaluated in accordance with existing policies and procedures, and has been determined not to be significant under both Executive Order 12866 and DOT policies and procedures (44 FR 11034; Feb. 26, 1979). The ten States identified are Alabama, California, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Ohio, and Texas. These ten States would incur the full burden associated with implementation of this NPRM. The estimated quantified compliance cost for these ten States is approximately $259,000 over the next year. The benefits resulting from the prevention of collisions at highway-rail grade crossings are expected to exceed the burden. This analysis includes a quantitative burden measurement and a qualitative benefit discussion for this NPRM. FRA requests comments on this economic analysis and its underlying assumptions.
        The primary burden imposed would be for State labor resources spent to comply with development of the mandated action plans. FRA estimates that, on the average, each State would assign the plan development responsibilities to a team composed of a program manager, a project engineer, a budget analyst, a business specialist, and a legal expert. Listed in Table A are the aggregate salary estimates and man-year allocations for the entire mandated population.

          Table A—Aggregated Salary Summary of the 10 Identified States

            Position
            Salary
            Hourly rate
            Labor hours
            Estimate

            Program Manager, Transportation
            $83,000.00
            $39.90
            40
            $2,793.27

            Project Engineer
            69,000.00
            33.17
            80
            4,644.23

            Budget Analyst
            52,000.00
            25.00
            40
            1,750.00

            Business Specialist, Transportation
            43,000.00
            20.67
            400
            14,471.15

            Legal Expert
            68,000.00
            32.69
            40
            2,288.46

            25,947.12

        The estimated cost is found as the product of the hourly rate, the labor hours, and an estimated overhead rate. Overhead is considered at 75% of the hourly rate. Example Calculation: [($39.90 per hour) * (40 hours) * (1 + .75 (overhead rate))] = $2,793.27.
        The proposed submission process calls for FRA to review and approve each submitted plan according to the Federal mandate. FRA anticipates that the review time for each of the initial submissions would be 6 hours per plan. Listed in Table B is the aggregated federal burden for the initial and resubmitted plans.

          Table B—Federal Compliance Summary

            Tasking
            States
            Labor hours
            Rate
            Estimate

            Plan Submission Review
            10
            6
            $52.50
            $5,512.50

            5,512.50

        To summarize quantitatively, the State burden that would be imposed by this proposed rule was derived from the estimated sum of the original burden submission from the ten identified States and the burden resubmission from the quantum that may not comply during the initial submission. FRA considers $259,000 to represent the aggregated State burden for the one-year period of this proposed requirement. Listed in Table C is the aggregated burden summary.

          Table C—Aggregated Burden Summary

            Estimate
            Quantity
            Totalestimates

            State Submission Burden
            $25,947.12
            10
            $259,471.15

            259,471.15

        The development of State highway-rail grade crossing action plans would likely result in a reduction in highway-rail grade crossing  collisions. Development of such plans would enhance these States' ability to view their population of grade crossings, interpret historical accident information, evaluate the overall state of highway-rail grade crossing safety, and identify particular areas in need of attention. Any patterns of collisions or causal factors would become more readily apparent as a result of the detailed study, assessment, and status reporting involved in the development of the State action plan. In these plans, each State would identify specific solutions for improving safety at individual crossings, including crossing closures or grade separations, with special focus on those crossings that are found to have experienced multiple accidents or that show a heightened risk for accidents. Special emphasis corridors or high risk corridors may also be identified as a result of the analysis component of the State action plan. As each State's highway-rail grade crossing action plan may be coordinated with other State or Federal planning requirements, additional benefits may be obtained through closer integration of grade crossing safety issues into the overall State transportation safety planning efforts.

        During the three-year time period, 2006 through 2008, the ten States with the most grade crossing collisions, as currently reported, accounted for 51%, or almost 4,200 accidents, of all grade crossing collisions nationwide. Highway vehicle damage accounted for more than $28.5 million over this three-year time period, and a combined total of 546 lives were lost. Economic research indicates that $6.0 million per statistical life saved is a reasonable estimate of people's willingness to pay for transportation safety improvements. FRA therefore estimates an accumulated $3.28 billion to represent the statistical value of the lives lost as a result of grade crossing collisions in these ten States. Finally, there were 1,666 injuries over the three-year time period in these ten States. Assuming very conservatively, for purposes of this analysis, that these were all minor in nature (e.g., injuries that may not require professional medical treatment and where recovery is usually rapid and complete) and thus assigning a cost of $12,000 per injury (i.e., 0.2% of the value of a statistical life), injury costs for this period totaled close to $20 million. Thus, the cost to society of the average incident in the three-year time period was $796,000. Prevention of one such incident alone would more than exceed the cost of implementing this proposed rule. FRA believes that it is reasonable to expect that such an incident may be prevented by the implementation of this proposed rule. In addition to the safety benefits, other potential benefits would include: Increased train and highway traffic mobility by reducing collisions, fewer demands on emergency services to respond to crossing collisions, and some improvement in air quality by reducing emissions from vehicles that are unable to move due to crossing collisions.
        The findings of this analysis are sensitive to its assumptions. The burden estimates are largely driven by the composition of the State's team and the level of effort expended by each individual. Such factors may vary from team to team. FRA realizes that the level of expertise per State, per team, per member, would vary and, therefore, has applied a 20 percent sensitivity factor above and below the baseline as follows:

          Table D—Aggregated Sensitivity Analysis Summary

            Estimate
            Low
            High

            Aggregated Submission Burden
            $259,471.15
            $207,576.92
            $311,365.38

        Thus, when defining the projected cost burden to the individual States within the framework of team complexion and with regard to the estimated sensitivity of the individual expertise of the employee selected, FRA finds that it is reasonable to estimate that the burden could range from $20,800 to $31,100 per State. FRA finds that the total cost burden ranges from $208,000 to $311,000.
        Regulatory Flexibility Act
        The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires a review of proposed and final rules to assess their impact on small entities, unless the Secretary certifies that the rule would not have a significant economic impact on a substantial number of small entities. Pursuant to section 312 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has issued a final policy that formally establishes “small entities” as including railroads that meet the line-haulage revenue requirements of a Class III railroad. 49 CFR part 209, app. C. For other entities, the same dollar limit in revenues governs whether a railroad, contractor, or other respondent is a small entity. Id. Additionally, section 601(5) defines as “small entities” governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000. Such governments would not be directly impacted by this proposal.
        FRA certifies that this proposal would not have a significant economic impact on a substantial number of small entities, as this rule only affects ten identified States. To the extent that this proposal would have any impact on small entities, FRA believes the impact would not be significant. FRA requests comments regarding this analysis.
        Paperwork Reduction Act

        The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq. The section that contains the new information collection requirements is noted below, and the estimated burden times to fulfill each requirement are as follows:

            CFR section
            Respondent universe

            Total annualresponses

            Average time per response(hours)

            Total annual burden hours

            234.11—State Highway-Rail Grade Crossing Action Plans—Development and Submission of Plans
            10 States
            10 plans
            600
            6,000

            Disapproval of State Highway-Rail Grade Crossing Action Plan and Submission of Revised Plan
            10 States
            5 revised plans
            80
            400

        All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: Whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Clearance Officer, at 202-493-6292, or Ms. Nakia Jackson at 202-493-6073.

        Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr. Robert Brogan or Ms. Nakia Jackson, Federal Railroad Administration, 1200 New Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also be submitted via e-mail to Mr. Brogan or Ms. Jackson at the following address: robert.brogan@dot.gov; nakia.jackson@dot.gov.

        OMB is required to make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

        FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in the Federal Register.
        Environmental Impact

        FRA has evaluated this NPRM in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this document is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures. 64 FR 28545, 28547, May 26, 1999. In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this NPRM that might trigger the need for a more detailed environmental review. As a result, FRA finds that this NPRM is not a major Federal action significantly affecting the quality of the human environment.
        Federalism Implications
        Executive Order 13132, “Federalism” (64 FR 43255, Aug. 4, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.
        This NPRM amends FRA's regulations regarding grade crossing safety. Subject to a limited exception for essentially local safety or security hazards, the requirements of FRA's regulations regarding grade crossing safety are intended to establish a uniform Federal safety standard that must be met, and State requirements covering the same subject would be displaced, whether those standards are in the form of State statutes, regulations, local ordinances, or other forms of State law, including common law. Section 20106 of Title 49 of the United States Code provides that all regulations prescribed by the Secretary related to railroad safety preempt any State law, regulation, or order covering the same subject matter, except a provision necessary to eliminate or reduce an essentially local safety or security hazard that is not incompatible with a Federal law, regulation, or order, and that does not unreasonably burden interstate commerce. This is consistent with past practice at FRA, and within the Department of Transportation.
        FRA has analyzed this NPRM in accordance with the principles and criteria contained in Executive Order 13132. This NPRM complies with a statutory mandate. FRA has not consulted with State and local officials in regards to this rule. However, prior to enactment of the RSIA, FRA did consult with State officials in conjunction with a recommendation from DOT's Office of Inspector General that certain States develop highway-rail grade crossing action plans, similar to the plans required by the RSIA and this rule. Thus, FRA believes it is in compliance with Executive Order 13132.
        This NPRM will not have a substantial effect on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. In addition, this NPRM will not have any federalism implications that impose substantial direct compliance costs on State and local governments.
        FRA's regulations regarding grade crossing safety do not preempt actions under State law seeking damages for personal injury, death, or property damage alleging that a party has failed to comply with the Federal standard of care established by this part. Provisions of a railroad maintenance, inspection and testing program which exceed the requirements of this part are not included in the Federal standard of care. It is strongly in the interest of railroad safety for railroads to exceed the requirements of Federal law and FRA encourages railroads to do so. A railroad would be discouraged from setting a higher standard for itself if it would be held liable in tort for exceeding the requirements of Federal law, but failing to attain the higher standard set for itself. Section 20106 of Title 49 of the United States Code supports this distinction.

        It is a settled principle of statutory construction that, if the statute is clear and unambiguous, it must be applied according to its terms. Carcieri v. Salazar, 555 U.S.—(2009). Read by itself, Section 20106(a) of Title 49 of the United States Code provides for an FRA rule, order or regulation to preempt state standards of care, but does not expressly state whether anything replaces the preempted standards of care for purposes of tort suits. The focus of that provision is clearly on who regulates railroad safety: The Federal government or the states. It is about improving railroad safety, for which Congress deems nationally uniform standards to be necessary in the great majority of cases. That purpose has collateral consequences for tort law which new Section 20106 subsections (b) and (c) address. New subsection (b)(1) creates three exceptions to the possible consequences flowing from subsection (a). One of those exceptions ((b)(1)(B)) precisely addresses an issue presented in Lundeen v. Canadian Pacific Ry. Co., 507 F.Supp.2d 1006 (D. Minn., 2007) that Congress wished to rectify: It allows plaintiffs to sue a railroad in tort for violation of its own plan, rule, or standard that it created pursuant to a regulation or order issued by either of the Secretaries. None of those exceptions covers a plan, rule, or standard that a regulated entity creates for itself in order to produce a higher level of safety than Federal law requires, and such plans, rules, or standards were not at issue in Lundeen. The key concept of § 20106(b) is permitting actions under State law seeking damages for personal injury, death, or property damage to proceed using a Federal standard of care. A plan, rule, or standard that a regulated entity creates pursuant to a Federal regulation logically fits the paradigm of a Federal standard of care—Federal law requires it and determines its adequacy. A plan, rule, or standard, or portions of one, that a regulated entity creates on its own in order to exceed the requirements of Federal law does not fit the paradigm of a Federal standard of care—Federal law does not require it and, past the point at which the requirements of Federal law are satisfied, says nothing about its adequacy. That is why FRA believes section 20106(b)(1)(B) covers the former, but not the latter. The basic purpose of the statute—improving railroad safety—is best served by encouraging regulated entities to do more than the law requires and would be disserved by increasing the potential tort liability of regulated entities that choose to exceed Federal standards, which would discourage them from ever exceeding Federal standards again.

        In this manner, Congress adroitly preserved its policy of national uniformity of railroad safety regulation expressed in section 20106(a)(1) and assured plaintiffs in tort cases involving railroads, such as Lundeen, of their ability to pursue their cases by clarifying that federal railroad safety regulations preempt the standard of care, not the underlying causes of action in tort. Under this interpretation, all parts of the statute are given meanings that work together effectively and serve the safety purposes of the statute.
        Unfunded Mandates Reform Act of 1995
        Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $141,300,000 or more in any one year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. This NPRM will not result in the expenditure, in the aggregate, of $141,300,000 or more in any one year, and thus preparation of such a statement is not required.
        Energy Impact

        Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355 (May 22, 2001). Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking that: (1)(i) Is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this NPRM in accordance with Executive Order 13211. FRA has determined that this NPRM will not have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this regulatory action is not a “significant energy action” within the meaning of Executive Order 13211.
        Privacy Act Information

        Interested parties should be aware that anyone is able to search the electronic form of all comments received into any agency docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78), or you may visit http://www.regulations.gov.

          List of Subjects in 49 CFR Part 234
          Highway safety; Penalties; Railroad safety; and Reporting and recordkeeping requirements.

        The Proposal
        In consideration of the foregoing, FRA proposes to amend part 234 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows:

          PART 234—GRADE CROSSING SIGNAL SYSTEM SAFETY AND STATE ACTION PLANS
          1. The authority citation for part 234 is revised to read as follows:

            Authority:
             49 U.S.C. 20103, 20107; 28 U.S.C. 2461, note; Public Law 110-432, Div. A, § 202; and 49 CFR 1.49.

          2. The heading for part 234 is revised to read as set forth above.
          3. Section 234.1 is revised to read as follows:

            § 234.1
            Scope.
            This part imposes minimum maintenance, inspection, and testing standards for highway-rail grade crossing warning systems. This part also prescribes standards for the reporting of failures of such systems and prescribes minimum actions railroads must take when such warning systems malfunction. This part also requires particular identified States to develop State highway-rail grade crossing action plans. This part does not restrict a railroad or a State from adopting and enforcing additional or more stringent requirements not inconsistent with this part.
            4. Section 234.3 is revised to read as follows:

            § 234.3
            Application.
            With the exception of § 234.11, this part applies to all railroads except:
            (a) A railroad that exclusively operates freight trains only on track which is not part of the general railroad system of transportation;
            (b) Rapid transit operations within an urban area that are not connected to the general railroad system of transportation; and
            (c) A railroad that operates passenger trains only on track inside an installation that is insular; i.e., its operations are limited to a separate enclave in such a way that there is no reasonable expectation that the safety of the public—except a business guest, a licensee of the railroad or an affiliated entity, or a trespasser—would be affected by the operation. An operation will not be considered insular if one or more of the following exists on its line:
            (1) A public highway-rail crossing that is in use;
            (2) An at-grade rail crossing that is in use;
            (3) A bridge over a public road or waters used for commercial navigation; or
            (4) A common corridor with a railroad, i.e., its operations are within 30 feet of those of any railroad.
            5. Section 234.4 is revised to read as follows:

            § 234.4
            Preemptive effect.
            (a) Under 49 U.S.C. 20106, issuance of these regulations preempts any State law, regulation, order covering the same subject matter, except an additional or more stringent law, regulation, or order that is necessary to eliminate or reduce an essentially local safety hazard; is not incompatible with a law, regulation, or order of the United States Government; and that does not impose an unreasonable burden on interstate commerce.
            (b) This part establishes a Federal standard of care for the maintenance, inspection and testing of grade crossing warning systems. This part does not preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party has failed to comply with the Federal standard of care established by this part. Provisions of a railroad maintenance, inspection and testing program which exceed the requirements of this part are not included in the Federal standard of care.
            6. Section 234.6 is revised to read as follows:

            § 234.6
            Penalties.
            (a) Civil Penalty. Any person (an entity of any type covered under 1 U.S.C. 1, including but not limited to the following: A railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor) who violates any requirement of this part, except for any violation of § 234.11 of this part, or causes the violation of any such requirement is subject to a civil penalty of at least $650, but not more than $25,000 per violation, except that: Penalties may be assessed against individuals only for willful violations, and where a grossly negligent violation or a pattern of repeated violations has created an imminent hazard of death or injury to persons, or has caused death or injury, a penalty not to exceed $100,000 per violation may be assessed. Each day a violation continues shall constitute a separate offense. Appendix A to this part contains a schedule of civil penalty amounts used in connection with this rule. The railroad is not responsible for compliance with respect to any condition inconsistent with the technical standards set forth in this part where such variance arises as a result of actions beyond the control of the railroad and the railroad could not have prevented the variance through the exercise of due diligence. The foregoing sentence does not excuse any instance of noncompliance resulting from the actions of the railroad's employees, agents, or contractors.
            (b) Criminal Penalty. Whoever knowingly and willfully makes, causes to be made, or participates in the making of a false entry in reports required to be filed by this part, or files a false report or other document required to be filed by this part, except for any document filed pursuant to § 234.11 of this part, is subject to a $5,000 fine and 2 years imprisonment as prescribed by 49 U.S.C. 522(a) and section 209(e) of the Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 438(e)).

            Subpart B—Reports and Plans

          7. The title to Subpart B—Reports is revised to read as set forth above.
          8. Section 234.11 is added to read as follows:

            § 234.11
            State highway-rail grade crossing action plans.
            (a) Purpose. The purpose of this section is to reduce collisions at highway-rail grade crossings in the ten States that have had the most highway-rail grade crossing collisions, on average, during the calendar years 2006, 2007, and 2008. This section does not restrict any other State, or other entity, from adopting a highway-rail grade crossing action plan. This section also does not restrict any of the States required to develop action plans under this section from adopting a highway-rail grade crossing action plan with additional or more stringent requirements not inconsistent with this section.
            (b) Application. This section applies to the ten States that have had the most highway-rail grade crossing collisions, on average, during the calendar years 2006, 2007, and 2008.
            (c) Action Plans. (1) The ten identified States shall each develop a State highway-rail grade crossing action plan and submit such a plan to FRA for review and approval not later than [DATE 1 YEAR FROM EFFECTIVE DATE OF FINAL RULE].
            (2) A State highway-rail grade crossing action plan shall:
            (i) Identify specific solutions for improving safety at crossings, including highway-rail grade crossing closures or grade separations;
            (ii) Focus on crossings that have experienced multiple accidents or are at high risk for such accidents; and
            (iii) Cover a five-year time period.
            (d) Review and Approval. (1) State highway-rail grade crossing action plans required under paragraph (c) of this section shall be submitted for FRA review and approval using at least one of the following methods: Mail to the Associate Administrator for Railroad Safety/Chief Safety Officer, U.S. Department of Transportation, Federal Railroad Administration, 1200 New Jersey Ave., SE., W12-140, Washington, DC 20590; or e-mail to rrs.correspondence@fra.dot.gov.

            (2) FRA will review and approve or disapprove a State highway-rail grade crossing action plan submitted pursuant to paragraph (d) of this section within 60 days of receipt.
            (3) If the proposed State highway-rail grade crossing action plan is disapproved, FRA will notify the affected State as to the specific areas in which the proposed plan is deficient. A State shall correct all deficiencies within 30 days following receipt of written notice from FRA.
            (4) FRA may condition the awarding of any grants under 49 U.S.C. 20158, 20167, or 22501 to an identified State on the development of such State's highway-rail grade crossing action plan.

            Issued in Washington, DC, on November 5, 2009.
            Joseph C. Szabo,
            Administrator, Federal Railroad Administration.

      [FR Doc. E9-27242 Filed 11-12-09; 8:45 am]
      BILLING CODE 4910-06-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        RIN 0648-BH02
        Fisheries of the Exclusive Economic Zone Off Alaska; Yellowfin Sole Management in the Groundfish Fisheries of the Bering Sea and Aleutian Islands

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notice of availability of fishery management plan amendment; request for comments.

          SUMMARY:
          The North Pacific Fishery Management Council submitted Amendment 116 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP) to the Secretary of Commerce (Secretary) for review. If approved, Amendment 116 would limit access to the Bering Sea and Aleutian Islands (BSAI) Trawl Limited Access Sector (TLAS) yellowfin sole directed fishery by vessels delivering to motherships. Amendment 116 would establish eligibility criteria based on historical participation in the fishery, issue endorsements to groundfish License Limitation Program (LLP) licenses that meet eligibility criteria, and authorize delivery of BSAI TLAS yellowfin sole to motherships by only those vessels with an assigned groundfish LLP license with a BSAI catcher vessel TLAS yellowfin sole directed fishery endorsement.
          This action is necessary to provide benefits to historic participants, mitigate the risk that a “race for fish” could develop, and help to maintain the consistently low rates of halibut bycatch in the BSAI TLAS yellowfin sole directed fishery. Amendment 116 is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act, the BSAI FMP, and other applicable law.

          DATES:
          Comments must be received no later than July 17, 2018.

          ADDRESSES:
          You may submit comments on this document, identified by NOAA-NMFS-2017-0083, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2017-0083, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.

            Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Electronic copies of Amendment 116 and the Draft Environmental Assessment/Regulatory Impact Review prepared for this action (collectively the “Analysis”) may be obtained from www.regulations.gov.

          FOR FURTHER INFORMATION CONTACT:
          Bridget Mansfield, (907) 586-7228.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment. This notice announces that proposed Amendment 116 to the FMP is available for public review and comment.

        NMFS manages the groundfish fisheries in the exclusive economic zone under the FMPs. The North Pacific Fishery Management Council (Council) prepared the FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMP appear at 50 CFR parts 600 and 679.

        Amendment 116 to the FMP would amend the species and gear endorsements on groundfish LLP licenses. The LLP was implemented under Amendments 39 and 41 to the FMP, and NMFS published the final rule to implement these amendments on October 1, 1998 (63 FR 52642). The LLP limits access to the groundfish, crab, and scallop fisheries in the BSAI and the Gulf of Alaska (GOA), by requiring that persons hold and assign a license to each vessel that is used to fish in federally managed fisheries, with some limited exemptions. The LLP is intended to prevent unlimited entry into Federally managed fisheries and to limit the ability of a person to assign an LLP license derived from the historic landing activity of a vessel in one area, using a specific fishing gear or operational type, to be used in other areas, with other gears, or for other operational types in a manner that could expand fishing capacity. Licenses issued under the LLP authorize, through individual endorsements, fishing activities in specific fishing areas, gear types, and vessel operations as catcher vessels (CVs) or catcher/processors (CPs). Once issued, the components of the LLP license cannot be transferred independently.
        Amendment 116 would implement a new groundfish LLP license endorsement to authorize a CV with trawl gear to deliver its catch to a mothership (a vessel that receives and processes catch from another vessel) in the BSAI TLAS yellowfin sole directed fishery. Vessels without this endorsement would not be authorized to deliver catch to motherships when participating in the BSAI TLAS yellowfin sole directed fishery. The Council determined, and NMFS agrees, that this action is an appropriate response to a sharp increase in CV participation delivering to motherships in the BSAI TLAS yellowfin sole directed fishery beginning in 2015. This increased effort has increased harvest pressure in this fully utilized fishery, such that the fishing season has been severely foreshortened over the past two years and has caused concern over the potential for increased halibut bycatch.
        In June 2017, the Council adopted Amendment 116, which would limit access to the offshore BSAI TLAS yellowfin sole fishery by CVs and CPs acting as CVs that deliver BSAI TLAS yellowfin sole to motherships. If approved, Amendment 116 would amend the FMP to require a vessel be designated on a groundfish LLP license with a BSAI TLAS yellowfin sole directed fishery endorsement in order to deliver its catch of yellowfin sole in the BSAI TLAS fishery to a mothership. A groundfish LLP license would receive the endorsement if it is credited with a qualifying landing. A groundfish LLP license would be eligible to be credited with a qualifying landing if a vessel designated on it was used to make at least one legal trip target landing of BSAI TLAS yellowfin sole to a mothership in any one year from 2008 through 2015. Under Amendment 116, “trip target” would mean an amount of retained aggregate groundfish species that is greater than the retained amount of any other groundfish species for that trip. The Council recognized this eligibility criteria may qualify more groundfish LLP licenses than vessels with a qualifying landing, because some vessels with a qualifying landing may have been designated on more than one groundfish LLP license during the qualifying period. Therefore, if a vessel designated on more than one groundfish LLP license made a qualifying landing during the qualifying period, only those groundfish LLP licenses on which the vessel was designated when it made a legal trip target landing in a BSAI TLAS fishery would be eligible to be credited with a qualifying landing. In such cases, Amendment 116 would require the vessel owner to specify only one groundfish LLP license that would be credited with the qualifying landing(s).
        Amendment 116 would amend four sections of the FMP. First, in Table ES-2 in the Executive Summary, row “License and Permits” would have a sentence added to read, “Trawl gear vessels engaged in directed fishing for BSAI TLAS yellowfin sole and delivering to a mothership must qualify for a BSAI TLAS yellowfin sole directed fishery endorsement.”
        Second, under section 3.3.1 “License Limitation Program,” Amendment 116 would add a new subsection entitled “3.3.1.3 Species and Gear Endorsements for Vessels Using Trawl Gear.” This new subsection would state that a vessel engaged in directed fishing for yellowfin sole in the trawl limited access sector in the BSAI management area using trawl gear and operating as a catcher vessel delivering catch to a mothership must hold an area endorsement and general license with a trawl limited access sector yellowfin sole directed fishery endorsement.
        Finally, a section would be added to Appendix A, summarizing the main provisions of Amendment 116, and the Table of Contents would be revised.
        The proposed rule to implement proposed Amendments 116 provides the details of the eligibility criteria for a BSAI TLAS yellowfin sole directed fishery endorsement to a groundfish LLP license, the process to establish eligibility of individual groundfish LLP licenses based on historical participation in the fishery, and issuance of the endorsements. The specific groundfish LLP licenses eligible for such an endorsement would be named in the proposed rule and in the regulations implementing the rule.
        The Council considered a range of dates and levels of participation, as well as conditions to increase participation when yellowfin TAC is high, before adopting its preferred alternative for Amendment 116. The Council determined and NMFS agrees that the eligibility requirements for a BSAI TLAS yellowfin sole directed fishery endorsement within Amendment 116 would balance the need to limit entry to the BSAI TLAS yellowfin sole directed fishery to control the pace of fishing and halibut bycatch with the needs of more recent participants by continuing to provide harvest opportunities in this fishery for AFA CPs and CVs, and non-AFA CVs.

        NMFS is soliciting public comments on proposed Amendment 116 through the end of the comment period (see DATES). NMFS intends to publish in the Federal Register and seek public comment on a proposed rule that would implement Amendments 116, following NMFS' evaluation of the proposed rule under the Magnuson-Stevens Act.

        Respondents do not need to submit the same comments on Amendment 116 and the proposed rule. All relevant written comments received by the end of the applicable comment period, whether specifically directed to the FMP amendments or the proposed rule will be considered by NMFS in the approval/disapproval decision for Amendment 116 and addressed in the response to comments in the final decision. Comments received after end of the applicable comment period will not be considered in the approval/disapproval decision on Amendment 116. To be considered, comments must be received, not just postmarked or otherwise transmitted, by the last day of the comment period (see DATES).

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

          Dated: May 14, 2018.
          Kathleen E. Barrett,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2018-10597 Filed 5-17-18; 8:45 am]
       BILLING CODE 3510-22-P


        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 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 hardwood-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 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 pine-oak) 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) 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 round-ups” 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 URTD-related 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 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 long-term 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