[Federal Register Volume 74, Number 173 (Wednesday, September 9, 2009)]
[Proposed Rules]
[Pages 46401-46406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21481]


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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.

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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

[[Page 46402]]

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-

[[Page 46403]]

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

[[Page 46404]]

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)

[[Page 46405]]

and fire suppression in natural pine forests.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The petition states that harvesting of gopher tortoises is now 
prohibited by all States throughout its range; however, commercial 
hunters continue to illegally collect gopher tortoises for their meat 
(Puckett and Franz 2001, p. 6). The petitioners note that in Florida 
there has been a long history of human predation on tortoises, 
especially in the western Panhandle. For example, prior to the closure 
of tortoise harvest in the late 1980s, one community in Okaloosa County 
held an annual tortoise cookout (FWC 2006, p. 4). Auffenberg and Franz 
(1982, p. 103) found that tortoise populations in longleaf pine-turkey 
oak (Quercus laevis) habitat in the Florida Panhandle averaged only 20 
percent of the density of populations in similar habitat in the 
peninsula of Florida.
    Although the petition provides some information about human 
predation on tortoises in the Florida Panhandle, it does not present 
information on human predation in other areas of Florida or elsewhere 
in the eastern portion of the range. However, information in our files 
indicates that the tortoise was used for food throughout its range 
during the 1930s (``Great Depression'') and as late as the 1980s in 
some parts of the range. Although this activity may have abated, the 
taking of adult gopher tortoises can result in long-term negative 
effects on populations. Since tortoises already have high juvenile and 
hatchling mortality, require a long time to reach sexual maturity, and 
have a low reproductive rate, populations can show substantial effects 
from the loss of reproducing adults.
    The petition also provides information indicating that other human 
activities focused on other species negatively affect gopher tortoises. 
For example, although ``rattlesnake 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

[[Page 46406]]

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