        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        Endangered and Threatened Wildlife and Plants; 90-Day Finding on a Petition to List the New England Cottontail as Threatened or Endangered

          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 (Service), announce a 90-day finding on a petition to list the New England cottontail rabbit (Sylvilagus transitionalis) under the Endangered Species Act of 1973, as amended (Act). We find that the petition presents substantial information indicating that the listing of the New England cottontail may be warranted. Therefore, we are initiating a status review to determine if listing the species is warranted. To ensure that the review is comprehensive, we are soliciting information and data regarding this species.

          DATES:
          The administrative finding announced in this document was made on June 2, 2004. To be considered in the 12-month finding for this petition, comments and information should be submitted to us by August 30, 2004.

          ADDRESSES:
          Data, information, comments, or questions concerning this petition and our finding should be submitted to the Field Supervisor (Attention: Endangered Species), New England Field Office, 70 Commercial Street, Suite 300, Concord, New Hampshire 03301. The petition, administrative finding, supporting data, and comments will be available for public inspection, by appointment, during normal business hours at the above address.

          FOR FURTHER INFORMATION CONTACT:

          Michael J. Amaral, Endangered Species Specialist, at the New England Field Office (see ADDRESSES above), or at 603-223-2541.

        SUPPLEMENTARY INFORMATION:

        Background

        Section 4 (b)(3)(A) of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq.), requires that we make a finding on whether a petition to list, delist, or reclassify a species, or to revise a critical habitat designation, presents substantial scientific or commercial information to demonstrate that the petitioned action may be warranted. We are to base this finding on all information available to us at the time the finding is made. To the maximum extent practicable, we are to make this finding within 90 days of the receipt of the petition, and to publish a notice of the finding promptly in the Federal Register. Our regulations at 50 CFR 424.14(b) state that for the purposes of petition findings, “'substantial information” is that amount of information that would lead a reasonable person to believe that the measure proposed in the petition may be warranted * * *.” If we find that substantial information was presented, we are required to promptly commence a review of the status of the involved species, if one has not already been initiated under our internal candidate assessment process. After completing the status review, we will issue an additional finding (the 12-month finding) determining whether listing is, in fact, warranted.
        Based on our regulations at 50 CFR 424.14(b)(2), in making a 90-day finding as to whether a petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, we are to consider whether such petition—
        (1) Clearly indicates the administrative measure recommended and gives the scientific and any common names of the species involved;
        (2) Contains detailed narrative justification for the recommended measure, describing, based on available information, past and present numbers and distribution of the species involved and any threats faced by the species;
        (3) Provides information regarding the status of the species over all or a significant portion of its range; and
        (4) Is accompanied by appropriate supporting documentation in the form of bibliographic references, reprints of pertinent publications, copies of reports or letters from authorities, and maps.

        On August 30, 2000, we received a petition dated August 29, 2000, requesting that we list the New England cottontail (Sylvilagus transitionalis) as a threatened or endangered species, and that critical habitat be designated “within a reasonable period of time following the listing.” The petition, submitted by the Biodiversity Legal Foundation, Conservation Action Project, Endangered Small Animals Conservation Fund, and Defenders of Wildlife, was clearly identified as a petition for a rule, and contained the names, signatures, and addresses of the requesting parties. Included in the petition was supporting information regarding the species' taxonomy and ecology, historic and current distribution, present status, and potential causes of decline. We acknowledged receipt of the petition in a letter to Mr. D. C. Jasper Carlton, dated September 14, 2000. In this letter, we also advised the petitioners that due to funding constraints in fiscal year (FY) 2000, we would not be able to begin processing the petition in a timely manner. Those constraints persisted into FY 2001.
        On December 19, 2000, Defenders of Wildlife sent a Notice of Intent to sue the Service for violating the Act by failing to make a timely 90-day finding on the petition to list the New England cottontail. On May 14, 2002, we advised the Defenders of Wildlife that we would begin action on the petition in FY 2002. This notice announces and summarizes our 90-day finding for the petition to list the New England cottontail.
        Biology and Distribution
        Sometimes called the gray rabbit, brush rabbit, wood hare, or coony, the New England cottontail is a medium-sized cottontail rabbit that may reach 1,000 grams (g) (2.2 pounds (lbs)) in weight. Dorsal portions of its body are buff to ocher in color, and the back is overlain with distinct black hair (Chapman and Ceballos 1990). The ears are short and rounded, and have a distinct black edge. There is a distinct black spot between the ears.

        A New England cottontail in the hand usually can be distinguished from two sympatric lagomorphs (lagomorphs are a suborder of mammals that includes rabbits, hares, and pikas), the eastern cottontail (Sylvilagus floridanus) and the snowshoe hare (Lepus americanus), by several features, including fur color, ear length, body mass, presence of the black spot between the ears, absence of a white spot on the forehead, and the black line on the anterior edge of the ears (Litvaitis et al. 1991). Pelage characteristics, however, are not 100 percent reliable in distinguishing between the visually similar New England and eastern cottontails (Chapman and Ceballos 1990), and the two species are difficult to tell apart in the field. Cranial differences, however, are a highly reliable means of distinguishing the two cottontail species (Chapman and Morgan 1973).

        The New England cottontail was formally described in 1894 (Bangs 1894 in Litvaitis and Johnson 2002). Until the early 1990s, the species was considered to occur in a mosaic pattern from southeastern New England, south along the Appalachian Mountains to Alabama (Hall 1981). However, Ruedas et al. (1989) and others questioned the taxonomic status of S. transitionalis because they found evidence of two distinct chromosomal races within its geographic range. Chapman et al. (1992) conducted a review of the systematics and biogeography of the species and reported finding clear evidence for two morphometrically distinct taxa within what had conventionally been regarded as a single species. Accordingly, Chapman et al. (1992) defined a new species, the Appalachian cottontail (S. obscurus), with a range from west of the Hudson River, New York south along the Appalachian Mountains through Pennsylvania, Maryland, West Virginia, Virginia, Tennessee, North Carolina, South Carolina, Georgia, and Alabama. Chapman et al. (1992) defined the New England cottontail (S. transitionalis) as that species east of the Hudson River, New York, north through Vermont, Connecticut, Rhode Island, Massachusetts, New Hampshire, and southern Maine.
        In addition to the morphometric and genetic differences reported by researchers, the two species also occupy somewhat different habitats. The Appalachian cottontail is generally an inhabitant of ericaceous vegetation zones (areas dominated by plants in the heath family) associated with higher elevations and mountain balds, while the New England cottontail occurs at lower elevations nearer the coastline, in forested or disturbed habitats with a dense understory.

        Not all biologists concur with the taxonomic separation proposed by Chapman et al. (1992); see, for example, Litvaitis et al. (1997). However, the change in taxonomy and nomenclature proposed by Chapman is included in the Smithsonian Institution's book on North American mammals (Chapman in Wilson and Ruff, eds., 1999). Jones et al. (1997), in the revised checklist of North American mammals, also recognizes both species as valid. The Service currently accepts the taxonomic separation of S. transitionalis and S. obscurus.

        Pursuant to the definitions in section 3 of the Act, “the term species includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” In order for a species to be considered as a listable entity under the Act, it must meet the above definition. The Service agrees with the petitioners that the New England cottontail qualifies as a listable entity under the Act based on the definition of species. We base this conclusion on two arguments. First, we believe there is general acceptance of the S. transitionalis / S. obscurus taxonomy put forth by Chapman et al. (1992) as noted above. Second, we believe that the New England cottontail within its range in the Northeast (east of the Hudson River, New York) would warrant listing consideration as a distinct vertebrate population segment in the event that the taxonomy of these species is further revised. Accordingly, and consistent with the species as described in the petition, in this finding we are considering only the New England cottontail (S. transitionalis), as defined and with the range as described by Chapman et al. (1992). Consistent with Chapman et al. (1992) and other references (Chapman and Ceballos 1990, Hall 1981), no subspecies of the New England cottontail are recognized.
        The New England cottontail is the only endemic cottontail in New England (Probert and Litvaitis 1996). Because the New England cottontail was not formally described until 1894 (Bangs 1894), there are few comprehensive reports on the historic range of the species (Litvaitis and Johnson 2002). However, it is believed that during early European settlement, New England cottontails occurred in a more or less continuous distribution from eastern New York (including Long Island) through Connecticut, statewide in Massachusetts (Cardoza in litt. 1999), Rhode Island, southern Vermont at least to Rutland, New Hampshire south of the White Mountains (Jackson 1922 in Jackson 1973), and four counties in southern Maine (Couse and Allen 1877 in Litvaitis and Johnson 2002).

        Presently, the range of the New England cottontail appears to be limited to relatively small patches of suitable habitat from eastern New York, to several counties in Connecticut, western and possibly northern Rhode Island, only a few locations in eastern Massachusetts and in the Berkshire Mountains, several southern counties in New Hampshire, and two southern coastal counties in Maine (Litvaitis and Johnson 2002). The species has not been reported from Vermont since 1990 and may be extirpated there (Litvaitis 1993a; Litvaitis et al. 2002). Litvaitis and Johnson (2002) report that, since 1960, the region occupied by the New England cottontail has declined by approximately 75 percent.
        The eastern cottontail has been introduced into much of the range of the New England cottontail. The historical range of the eastern cottontail extended northeast only as far as the lower Hudson Valley, and possibly extreme western Connecticut (Goodwin 1935 in Chapman and Stauffer 1981). Large-scale introductions of eastern cottontails to Connecticut (Dalke 1942, in Chapman and Stauffer 1981), Rhode Island (Johnston 1972), Massachusetts (Nelson 1909, in Johnston 1972) and possibly Vermont (C. M. Kilpatrick, in litt. 2002) have firmly established the eastern cottontail in all of New England, except Maine. Introductions usually have been conducted by States and private hunting clubs. The eastern cottontail is both larger (1,300 g (2.9 lb)) and more fecund than the New England cottontail.

        Fay and Chandler (1955) documented the extension of the range of introduced eastern cottontails in Massachusetts, and recorded that S. floridanus had replaced the native New England cottontail in many places. Linkkila (1971) reported the disappearance of S. transitionalis throughout much of the northeastern United States. Johnston (1972) described the replacement over a 40 to 50 year period of S. transitionalis by S. floridanus as the predominant cottontail in much of southern New England.
        Despite the widespread introductions of eastern cottontails into the range of the New England cottontail, the two species are not hybridizing. Wilson (1981) conducted a genetic study of the two species in five of the New England States and found that the New England cottontail has maintained its genetic identity in the face of eastern cottontail range expansion.

        The New England cottontail is considered an early successional forest species, where disturbance occurring as a result of timber harvest, hurricanes and other wind storms, or beaver activity maintains areas of suitable habitat. Historically, fires set by Native Americans, a practice continued by early European colonists, also set back forest succession and maintained areas of suitable habitat (Bromley 1935; Cronon 1983). Suitable habitat for the species can be found in both forest and shrub lands, provided there is dense understory growth where both food and cover are found in close proximity. New England cottontail habitats include native shrublands, beaver flowages, old fields, and early successional forests (Barbour and Litvaitis 1993). In southern New England, however, this cottontail may also occur in more stable forests where laurel (Kalmia sp.) provides a dense understory. Like other cottontails, the New England cottontail is an herbivore and feeds on a wide variety of woody and herbaceous plants.
        There is considerable overlap between habitats used by eastern and New England cottontails. In general, however, eastern cottontails are associated with plants indicative of open land such as old fields and meadows, whereas New England cottontails are associated with forest plant species (Eabry 1968).
        Status Concerns
        The status of the New England cottontail has been of concern to biologists and natural resource agencies for nearly five decades. Reductions in the range of the New England cottontail were first reported by Fay and Chandler (1955) and subsequently by Linkkila (1971) and Johnston (1972). In 1979, Chapman and Stauffer suggested to the International Union for the Conservation of Nature (IUCN) Lagomorph Specialist Group that the species be listed in the category “Special Concern” (Chapman and Stauffer 1981). In 1989, we placed the New England cottontail in category 2 of the Animal Notice of Review (54 FR 553). We no longer maintain a list of category 2 candidate species, but at the time, category 2 was defined as including species for which we had some information indicating that the taxa may be under threat, but not enough information was available to determine if they warranted Federal listing and the preparation of a proposed rule.

        On the basis of the research and other information noted above, concern for the status of the New England cottontail was well documented even prior to the revision of the taxon by Chapman et al. (1992). The separation of the taxon into two species with reduced and allopatric (separate) ranges resulted in increased concern for the New England cottontail, which was recognized as being restricted to east of the Hudson River, New York, and New England. In 1999, a committee composed of 13 State endangered species and wildlife diversity program coordinators included the New England cottontail among 26 declining species most in need of conservation attention in the northeast region (Therres 1999). This committee described the New England cottontail as warranting “federal endangered or threatened species listing consideration, including prelisting status reviews.”
        Conservation Status
        Under section 4(a) of the Act, we may list a species on the basis of any of five factors, as follows: “(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; (E) other natural or manmade factors affecting its continued existence.” The petitioners contend that four of the five factors (A, B, D, and E) are applicable to the New England cottontail (see below). A brief discussion of how each of the five listing factors applies to the New England cottontail follows.
        In regard to factor A, the petitioners cite loss of habitat to urban and suburban development as a major threat to the New England cottontail. Further, the petitioners note that this species requires thicket habitat frequently associated with early seral stages of forest regeneration after a disturbance such as timber harvest, fire, or beaver activity. They note that an increasingly urbanized landscape, with many small, partially-forested residential parcels is not conducive to timber harvesting, fire, or other disturbance regimes that would maintain and/or regenerate habitat for the species.

        Information currently available indicates that loss of habitat to these and other causes appears to be a significant threat to the status of this species. Litvaitis (1993b) considered habitat succession to be the most important cause of habitat loss for this species. As agricultural land in the Northeast was abandoned after the Civil War, forest succession led to a period where habitat conditions were highly favorable for early successional or thicket-dependent species such as the New England cottontail. However, as forests matured and forest canopy closed, the habitats entered a mid-successional stage and were no longer suitable for these early successional species (Brooks and Birch 1988). Further, Litvaitis et al. (1999) reported that remaining shrub-dominated and early successional habitats in the Northeast continue to decline in both coverage and suitability. U.S. Forest Service inventories reveal that in New Hampshire and New York, the extent of forest in the seedling/sapling stage (thickets favorable to the New England cottontail) has declined by about 50 percent in the past three decades (Askins 1998; Litvaitis et al. 1999). In Maine, young forest stands in the two southern counties that still support populations of the New England cottontail declined even more sharply, from about 38 percent in 1971 to 11 percent in 1995 (Litvaitis et al. 2002).

        In addition to habitat succession, development has also contributed to direct and more permanent loss and fragmentation of habitat for the species. The three southern New England states, Connecticut (>700 inhabitants per square mile), Rhode Island (>1,000 inhabitants per square mile), and Massachusetts (>800 inhabitants per square mile), which comprise the center of the New England cottontail's range, are among the most densely populated areas in the United States (U.S. Census Bureau 2000). Early successional habitats that once supported New England cottontails have been converted to a variety of uses which make them unsuitable for the species. Among shrub-dominated plant communities, which sometimes support New England cottontail populations, scrub oak and pitch pine barrens have been heavily degraded by development (Patterson 2002). These areas are rapidly being lost to uses such as airport development, roadways, sand and gravel mining, industrial parks, residential development, and retail development. Litvaitis et al. (1999) conclude that shrub-dominated and early successional habitats may be the most altered and among the most rapidly declining communities in the Northeast.

        The fragmentation of remaining suitable habitats into smaller patches separated by roads, residential, and other development can have profound effects on the occupancy and persistence of New England cottontail populations in relatively small patches. Barbour and Litvaitis (1993) found that New England cottontails occupying small patches of habitat (less than or equal to 2.5 hectares (ha) or about 6 acres) were predominantly males, had lower body mass, consumed lower quality forage, and had to feed farther from protective cover than rabbits in larger patches (greater than or equal to 5 ha or slightly more than 12 acres). This study also demonstrated that New England cottontails in the smaller patches had only half the survival rate of those in the larger patches due to increased mortality from predation. Barbour and Litvaitis (1993) concluded that local populations of New England cottontails may be vulnerable to extinction if large patches of habitat are not maintained.
        Although there are no reliable estimates for historic or current population numbers of New England cottontails, the reduction in the amount of suitable habitat and the range of the species, as well as the effects of competition and predation, are believed to have resulted in a concomitant reduction in numbers.
        In regard to factor B, the petitioners contend that while anecdotal evidence implies that hunting pressure on the New England cottontail (and rabbits in general) is not severe, “any hunting, in a population reduced to remnants as the NE cottontail is, is too much.”
        Our review of information for this 90-day finding indicates there is presently little hunting pressure on New England cottontails. All of the State wildlife agencies within the range of the New England cottontail regard it as a small game animal and allow hunting with specific season and bag restrictions. Most States report fewer rabbit and other small game hunters today than in earlier decades (U.S. DOI and U.S. DOC 1985, 1991, 1996, 2001), and the New England cottontail is not the rabbit species preferred by most small game hunters because of its smaller size and behavior. New England cottontails forage within or close to dense cover (Smith and Litvaitis 2000), and typically hold in safe areas when disturbed. They are therefore not as easily run by hounds and taken by hunters as eastern cottontails or snowshoe hares. Research shows that New England cottontails are more vulnerable to mortality from predation in smaller patches of habitat than in larger ones (Barbour and Litvaitis 1993). This may hold true for hunting mortality as well, because rabbits on small patches must venture farther from shelter to feed and have less escape cover in which to hide, but this has not been demonstrated.
        The petitioners also assert that rabbits may still be regarded as pests and killed indiscriminately by farmers, but provided no objective information to support that assertion. In our review of available information, we did not find evidence either to support or refute this claim. However, because of differences in habitat preference of the two cottontail species, most farmers and homeowners are more likely to encounter eastern cottontails, which occur in the more open habitats of farms and residential lawns, than New England cottontails. Whether either species is killed indiscriminately by farmers, however, is an assertion that lacks supporting information in the petition. Thus, on the basis of available information, current human hunting pressure does not appear to be a significant mortality factor for the New England cottontail.

        The petitioners speculate that hunting pressure on the New England cottontail earlier in the century (e.g., 1930s) led to declining numbers of rabbits, and in response to reduced hunting opportunity, States and hunting clubs then introduced large numbers of eastern cottontails, with “disastrous” results. The Service agrees that the introduction and establishment of eastern cottontail populations in the Northeast for the purpose of providing small game hunting opportunities has been deleterious to the New England cottontail. However, available evidence suggests that habitat loss, through forest maturation and other causes (Jackson 1973; Brooks and Birch 1988; Litvaitis et al. 1999), rather than hunting pressure, was the primary reason for the decline of New England cottontail populations in the mid-20th century.
        With regard to disease (factor C), the petitioners cited one reference that suggested disease could be a factor in the decline of the New England cottontail, but stated that no specifics were provided. In our review of available information, we found little evidence to suggest that disease is a limiting factor for this species. Cottontail rabbits are known to contract a number of different diseases, such as tularemia, and are afflicted with both ecto-parasites such as ticks, mites and fleas, and endo-parasites such as tapeworms, and nematodes (Eabry 1968). Chapman and Ceballos (1990) do not identify disease as an important factor in the dynamics of cottontail populations. Rather, they state that habitat is key to cottontail abundance and that populations are regulated through other causes of mortality and dispersal. Further, they note that escape cover is an essential habitat requirement, suggesting that mortality from predation is an important population regulation mechanism.

        With regard to predation, the petitioners discussed its importance as a mortality factor in the section, “life history and ecology of the New England cottontail,” but did not refer to predation as a threat to the species in their review of the five listing factors (Carlton et al. 2000). Available information indicates that predation is likely a significant cause of mortality for New England cottontails and that both mammalian and avian predators are important. Because female New England cottontails are capable of producing 24 young annually (Chapman and Ceballos 1990), the species has the potential to be abundant were it not for mortality and other factors affecting population growth. Litvaitis et al. (1984) noted that New England cottontails were a major prey of bobcats (Felis rufus) in New Hampshire during the 1950s. Presently, coyotes (Canis latrans) and red foxes (Vulpes vulpes) are believed to be the major predators of the New England cottontail in New Hampshire (Barbour and Litvaitis 1993; Brown and Litvaitis 1995). Among avian predators known or suspected to take cottontails are several species of owls (Smith 1997, in Smith and Litvaitis 1999) and red-tailed hawks (Buteo jamaicensus) (Bent 1961). Lastly, anecdotal evidence and at least one study (Walter et al. 2001) indicate that cottontails are also killed by domestic dogs and cats.

        Available evidence suggests that habitat fragmentation has exacerbated predation rates and reduced New England cottontail survival in several ways. Populations of generalist carnivores have increased with forest fragmentation (Oehler and Litvaitis 1996), and supplemental food resources associated with human dwellings (e.g., trash, bird feeders, fruiting shrubs) may lead to “spillover” predation on cottontails (Oksanen et al. 1992, in Brown and Litvaitis 1995).

        Studies have shown that, as landscapes become fragmented, New England cottontails become increasingly vulnerable to predation, because habitat quantity and quality are reduced (less forage and escape cover) (Smith and Litvaitis 2000). A study by Villafuerte et al. (1997) demonstrated that the abundance of food and the risk of predation are very influential in determining the persistence of small- and medium-sized vertebrates such as the New England cottontail. As food in the most secure areas is depleted, rabbits are forced to utilize lower quality forage or feed farther from cover where the risk of predation is greater. This study found that rabbits on small patches were “on the lowest nutritional plane” and as a result, were killed at twice the rate (and were killed sooner) than rabbits on larger habitat patches. Villafuerte et al. (1997) concluded that forage limitations imposed by habitat fragmentation affect the viability of local populations of New England cottontails by influencing their vulnerability to predation. Rabbits on larger patches were less vulnerable; therefore, they concluded that large patches of habitat are essential for sustaining populations of this species in a human-altered landscape. Smith and Litvaitis (2000) report that because eastern cottontails appear to have the ability to forage farther from cover and detect predators sooner than New England cottontails, eastern cottontails will likely persist while populations of New England cottontails will continue to decline.

        In regard to factor D, the petitioners cite the inability of State wildlife agencies to adequately monitor the status of the New England cottontail within their respective jurisdictions as a threat to the species. We note that the lack of monitoring is not a threat to a species per se but agree that adequate monitoring is important in order to promptly detect and respond to a decline in a species' status.

        Conducting research on the status of this species is relatively difficult and expensive because New England cottontails are labor intensive to capture, and identifying them in the field is seldom possible due to their general similarity to the eastern cottontail. Also, because the habitat conditions that support New England cottontail populations change over time with plant succession (e.g., forest maturation), status surveys (even presence/absence surveys) need to be repeated periodically. Many States, such as Massachusetts, Rhode Island, and Connecticut, have attempted to monitor the status of the New England cottontail through voluntary hunter and public submittal of specimens. While these data fall short of providing a comprehensive review of the status of the species in a particular state, they are nonetheless useful in demonstrating abundance relative to eastern cottontails, locations of occupied habitats, and trends in frequency of occurrence over time.
        All seven State wildlife agencies within the northeastern area have the authority to control the hunting of New England cottontails through the setting of hunting and trapping seasons and bag limits. However, most northeastern States cannot presently restrict hunting of New England cottontails without also reducing hunting opportunities for eastern cottontails and, to a lesser extent, snowshoe hares. This is because these species are visually similar in the field and they co-occur on the landscape, sometimes within the same or adjacent habitat patches. In Maine, where the only cottontail is the New England cottontail, the state has limited hunters to one cottontail per day and two in possession (Maine Hunting and Trapping Laws and Rules 2003).

        While States have legal authority to address the mortality of New England cottontails from hunting and trapping, there are only limited regulatory mechanisms available to address the loss of habitat. New England cottontails occur on sites with dense understory vegetation, including native shrublands, beaver flowages, old fields, and early successional forests (Barbour and Litvaitis 1993). In Connecticut, Walter et al. (2001) reported that most current New England cottontail collection records are associated with sites that contain or are adjacent to riparian vegetation, such as borders of lakes, swamps, and rivers. However, the New England cottontail is primarily an upland, terrestrial species that occurs along the margins of these wetland types. This suggests that Federal and State laws that provide protection to shorelands and wetlands may offer some protection to a small portion of New England cottontail habitat (see also the discussion of factor A regarding habitat loss).
        Several areas that have persistent populations of New England cottontails are on lands protected by Federal or State ownership and some are being managed for early successional species. However, in our review of information available for this 90-day finding, we were unable to determine the number and location of large patches of occupied New England cottontail habitat which occur on State and Federal conservation lands. Quantifying this information will be an important component of the status review.

        In regard to factor E, the petitioners address the adverse effects of eastern cottontail introductions. On the basis of available information, we would agree that the introduction and spread of eastern cottontails has been a factor in reducing the occurrence of the New England cottontail within its historic range. Tens of thousands of individuals of four or five different subspecies of S. floridanus were introduced to the Northeast, beginning on Nantucket Island, Massachusetts, in 1899 (Johnston 1972), and continuing elsewhere in Massachusetts, Connecticut, New Hampshire, and Rhode Island until the 1960s. In States where researchers and State wildlife agencies reported the New England cottontail had been the predominant or the only cottontail encountered during the early- to mid-1900s, by the latter half of the century the eastern cottontail had become by far the most common rabbit (Johnston 1972; Tracy 1995; Cardoza, in litt. 1999). Maine, where the eastern cottontail is not known to occur, is the only exception to this pattern. In summary, Johnston (1972) reported that this occupation of new areas by S. floridanus seemed to be at the expense of S. transitionalis.

        Although the precise mechanism explaining how eastern cottontails displace New England cottontails is not known, it is well established that as the range of the eastern cottontail expanded, that of the indigenous New England cottontail declined. Probert and Litvaitis (1996) found that eastern cottontails, though larger, were not physically dominant over New England cottontails. Rather, they believe that eastern cottontails are able to exploit a broader set of ecological conditions and, through more efficient or rapid use of available resources, they have been able to replace New England cottontails in many habitats. Eastern cottontails appear capable of occupying a wider range of available habitat types and can occupy disturbance patches earlier than New England cottontails. Once established, the highly fecund eastern cottontails are not readily displaced by the New England cottontails.

        Our review of available information indicates there are other natural and man-made factors that may be affecting the status of the New England cottontail. Winter severity, measured by persistence of snow cover, is believed to affect New England cottontail survival. Villafuerte et al. (1997) found that snow cover reduces the availability of high-quality foods, and likely results in rabbits becoming weakened nutritionally. In a weakened state, rabbits are more vulnerable to predation. Brown and Litvaitis (1995) found that during winters with prolonged snow cover, a greater proportion of the cottontails in their study were killed by predators. Litvaitis and Johnston (2002) speculate that snow cover may explain the largely coastal distribution of this species in the Northeast (generally less snow falls and persists in coastal versus interior areas) and may be an important factor defining the northern limit of its range. The preceding studies suggest that during winters with heavy snowfall, New England cottontail numbers will be reduced, and the combined effects of snowfall and habitat fragmentation will affect the persistence of populations in smaller patches.

        State wildlife agencies report that road kills are an important source for obtaining specimens of rabbits, including the New England cottontail. Road-killed rabbits were second only to hunting mortality as a source for obtaining cottontail specimens in an ongoing distributional study of eastern and New England cottontails in Connecticut (Walter et al. 2001). The degree to which New England cottontail populations are affected by vehicular mortality is unknown, but roads may be an important limitation for dispersing individuals.

        Litvaitis and Johnson (2002) note that cottontails are often found in habitats that have invasive plant species, such as honeysuckle (Lonicera spp.). Whether exotic plant species have a positive or negative effect on the New England cottontail is presently unknown.
        Finding
        We have reviewed the petition, the literature cited in the petition, and other literature and information available in our files. On the basis of our review, we find that the petition presents substantial information indicating that listing the New England cottontail may be warranted. The main threat to the species appears to be loss of habitat through forest succession, fragmentation, and conversion to other uses. This loss of habitat has contributed to a reduction in the range of the species and a reduction in numbers. Ongoing competition with eastern cottontails that have been introduced into areas that are outside their native range also appears to be having a negative impact on the New England cottontail.
        We have reviewed the available information to determine if the existing and foreseeable threats pose an emergency. We have determined that an emergency listing is not warranted at this time, because many scattered occurrences of the New England cottontail are still known to occur across its range, and some are on protected lands. However, if at any time we determine that emergency listing of the New England cottontail is warranted, we will seek to initiate an emergency listing.
        The petitioners also requested that critical habitat be designated for this subspecies. We always consider the need for critical habitat designation when listing species. If we determine in our 12-month finding that listing the New England cottontail is warranted, we will address the designation of critical habitat in the subsequent proposed rule or as funding allows.
        Public Information Solicited
        When we make a finding that substantial information exists to indicate 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 on the New England cottontail. We request any additional information, comments, and suggestions from the public, other concerned governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning the status of the New England cottontail. We are seeking information regarding historic and current status and distribution, the species' biology and ecology, ongoing conservation measures for the species and its habitat, and threats to the species and its habitat.

        If you wish to comment or provide information, you may submit your comments and materials concerning this finding to the Field Supervisor (see ADDRESSES section). Our practice is to make comments and materials provided, including names and home addresses of respondents, available for public review during regular business hours. Respondents may request that we withhold a respondent's identity, to the extent allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your submission. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
        References Cited

        A complete list of all references cited herein is available upon request from the Field Supervisor (see ADDRESSES section).
        Author

        The primary author of this document is Michael J. Amaral, New England Field Office (see ADDRESSES section).
        Authority

        The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

          Dated: June 2, 2004.
          Marshall Jones,
          Acting Director, U.S. Fish and Wildlife Service.

      [FR Doc. 04-14610 Filed 6-29-04; 8:45 am]
      BILLING CODE 4310-55-P


        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Part 595
        [Docket No. NHTSA-2010-0133]
        RIN 2127-AK77
        Make Inoperative Exemptions; Vehicle Modifications To Accommodate People With Disabilities, Side Impact Protection

          AGENCY:
          National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

          ACTION:
          Notice of proposed rulemaking (NPRM).

          SUMMARY:
          This NPRM proposes to amend our regulations to correct and expand a reference in an exemption relating to the Federal motor vehicle safety standard for side impact protection. The expanded exemption would facilitate the mobility of physically disabled drivers and passengers. This document responds to a petition from Bruno Independent Living Aids.

          DATES:
          You should submit your comments early enough to ensure that the Docket receives them not later than October 28, 2010.

          ADDRESSES:
          You may submit comments to the docket number identified in the heading of this document by any of the following methods:
          • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.
          • Mail: Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.
          • Hand Delivery or Courier: 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
          • Fax: 202-493-2251.

            Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the SUPPLEMENTARY INFORMATION section of this document. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act heading below.

            Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets 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 (65 FR 19477-78).

          For access to the docket to read background documents or comments received, go to http://www.regulations.gov or the street address listed above. Follow the online instructions for accessing the dockets.

          FOR FURTHER INFORMATION CONTACT:
          Shelley Bolbrugge, NHTSA Office of Crash Avoidance Standards, NVS-123 (telephone 202-366-9146) (fax 202-493-2739), or Deirdre Fujita, NHTSA Office of Chief Counsel, NCC-112 (telephone 202-366-2992) (fax 202-366-3820). The mailing address for these officials is: National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.

        SUPPLEMENTARY INFORMATION:

        Background

        The National Traffic and Motor Vehicle Safety Act (49 U.S.C. Chapter 301) (“Safety Act”) and NHTSA's regulations require vehicle manufacturers to certify that their vehicles comply with all applicable Federal motor vehicle safety standards (FMVSSs) (see 49 U.S.C. 30112; 49 CFR part 567). A vehicle manufacturer, distributor, dealer, or repair business generally may not knowingly make inoperative any part of a device or element of design installed in or on a motor vehicle in compliance with an applicable FMVSS (see 49 U.S.C. 30122). NHTSA has the authority to issue regulations that exempt regulated entities from the “make inoperative” provision (49 U.S.C. 30122(c)). The agency has used that authority to promulgate 49 CFR part 595, subpart C, “Make Inoperative Exemptions, Vehicle Modifications to Accommodate People with Disabilities.”
        49 CFR part 595 subpart C sets forth exemptions from the make inoperative provision to permit, under limited circumstances, vehicle modifications that take the vehicles out of compliance with certain FMVSSs when the vehicles are modified to be used by persons with disabilities after the first retail sale of the vehicle for purposes other than resale. The regulation was promulgated to facilitate the modification of motor vehicles so that persons with disabilities can drive or ride in them. The regulation involves information and disclosure requirements and limits the extent of modifications that may be made.
        Under the regulation, a motor vehicle repair business that modifies a vehicle to enable a person with a disability to operate or ride as a passenger in the motor vehicle and that avails itself of the exemption provided by 49 CFR part 595 subpart C must register itself with NHTSA. The modifier is exempted from the make inoperative provision of the Safety Act, but only to the extent that the modifications affect the vehicle's compliance with the FMVSSs specified in 49 CFR 595.7(c) and only to the extent specified in 595.7(c). Modifications that would take the vehicle out of compliance with any other FMVSS, or with an FMVSS listed in 595.7(c) but in a manner not specified in that paragraph are not exempted by the regulation. The modifier must affix a permanent label to the vehicle identifying itself as the modifier and the vehicle as no longer complying with all FMVSS in effect at original manufacture, and must provide and retain a document listing the FMVSSs with which the vehicle no longer complies and indicating any reduction in the load carrying capacity of the vehicle of more than 100 kilograms (220 pounds).
        Current Exemption in Part 595 Regarding Side Impact Protection
        Currently, 49 CFR part 595 subpart C sets forth an exemption from “S5 of 49 CFR 571.214 [FMVSS No. 214] for the designated seating position modified, in any cases in which the restraint system and/or seat at that position must be changed to accommodate a person with a disability.” 49 CFR 595.7(c)(15).
        The reference to S5 of FMVSS No. 214 is outdated. S5 had referred to the dynamic performance requirements that vehicles must meet when subjected to a moving deformable barrier (MDB) test. The MDB test simulates an intersection collision with one vehicle being struck in the side by another vehicle. In 2007, NHTSA upgraded FMVSS No. 214 and reorganized the standard.1
           The MDB test was redesignated as S7 and upgraded with the adoption of new technically-advanced test dummies representing a 5th percentile adult female and a 50th percentile adult male and enhanced injury criteria.

            1 72 FR 51908, September 11, 2007; response to petitions for reconsideration, 73 FR 32473, June 9, 2003; 75 FR 12123, March 15, 2010.

        In addition, the final rule added a new vehicle-to-pole test to the standard (see S9, 49 CFR 571.214). The pole test simulates a vehicle crashing sideways into narrow fixed objects, such as utility poles and trees. The pole test requires vehicle manufacturers to assure head and improved chest protection in side crashes for a wide range of occupant sizes and over a broad range of seating positions. Manufacturers will likely meet the upgraded requirements of the standard by vehicle modifications that include installing side air bags in vehicle seats and/or door panels and side roof rails. The phase-in of the upgraded MDB and pole test requirements began September 1, 2010.
        Petition for Rulemaking
        On February 12, 2009, Bruno Independent Living Aids (Bruno) submitted a petition for rulemaking to expand the specified requirements of FMVSS No. 214 referenced in § 595.7. Bruno manufactures a product line called “Turning Automotive Seating (TAS).” A TAS seat replaces the seat installed by the original equipment manufacturer (OEM). Bruno states that the purpose of the TAS is—

          to provide safe access to private motor vehicles for mobility-impaired drivers or passengers, semi-ambulatory or transferring from a wheelchair.
          The Bruno TAS replaces the OEM seat in a sedan, minivan, van, pickup, or SUV. In its various configurations the Bruno TAS seat pivots from the forward-facing driving position to the side-facing entry position, extends outward and lowers to a suitable transfer height, providing the driver and/or passengers a convenient and safe entry into the vehicle. The transfer into the seat takes place safely, while outside the vehicle, and the occupant remains in the seat during the entry process, using the OEM seatbelts while traveling in the vehicle. Exiting the vehicle is accomplished by reversing the process. A further TAS option is a mobility base, which converts the automotive seat into a wheelchair, that eliminates a need for transferring from the seat altogether.

        The petitioner believes that this method of vehicle entry and exit is safer than using a platform lift to enter a vehicle or entering and exiting unassisted. Bruno states in its petition that: “* * * torso side air bags are commonly installed in the outboard side of the OEM seat backrest” and would be removed when installing a TAS system requiring the exemption. Bruno seeks a part 595 exemption similar to the existing exemption from the MDB test. Additionally, Bruno seeks to expand part 595 to allow an exemption from the new S9 Vehicle-To-Pole test requirements.
        Response to Petition
        NHTSA has decided to grant Bruno's petition. We propose to amend § 595.7(c)(15) to reference the upgraded MDB requirements and to expand the exemption to include the pole test requirements.
        MDB Test Requirements
        The September 11, 2007 FMVSS No. 214 final rule redesignated the MDB requirements as S7. Because § 595.7(c)(15)'s reference to S5 is no longer valid, today's NPRM would change that paragraph's reference from S5 to S7.
        We believe that there is a continuing need for the exemption from the MDB requirements. The original make inoperative exemption for the MDB requirements was granted because NHTSA was aware of drivers or passengers who needed to have a modifier change the restraint system or vehicle seat to accommodate a disability (66 FR 12637). At the time of the final rule we allowed the exemption because we determined that a change in the restraint system or seat location could affect the measurement of the injury criteria specified in the standard. The upgraded FMVSS No. 214 incorporates enhanced MDB requirements that could likewise be affected by an alteration of the restraint system and/or seat at the designated seating position being modified.
        The enhanced MDB requirements will improve head, chest, and pelvic protection in side crashes. Data from tests conducted pursuant to the September 2007 FMVSS No. 214 final rule showed that many vehicles will depend on side impact air bag technology to meet all of the injury criteria of the standard when tested with the 5th percentile female and 50th percentile male dummies. If the side air bags in vehicles designed to the new requirements were removed, modifiers will take the vehicles out of compliance with the MDB test.

        The agency also tentatively believes that the compliance with the injury criteria for the MDB test could be affected even if vehicle seats with seat-mounted air bags are not removed but are instead changed in a less significant way to accommodate a person with a disability (e.g., an OEM seat is mounted on a 6-way power seat base). This is because there could be countermeasures that were designed to protect the occupant at the OEM seating position that may no longer be as protective at the position at which the seat is placed after the modification.
        Pole Test Requirements
        We propose to expand § 595.7(c)(15) to include an exemption for modifications that affect the vehicle's compliance with the pole test requirements of FMVSS No. 214 (set forth in S9 of the standard) in any case in which the restraint system and/or seat at that position must be changed to accommodate a person with a disability. The pole test applies to the driver and right front seat passenger seating positions. When NHTSA issued the final rule upgrading FMVSS No. 214, the agency believed that the upgraded requirements will “lead to the installation of new technologies, such as side curtain air bags and torso side air bags.” The countermeasure most likely to be used in the foreseeable future to meet the pole test requirements is side air bag technology incorporated in the vehicle's roof rail (side air bag curtain), door, and/or the vehicle seat.
        In our NPRM preceding the make inoperative exemption final rule (63 FR 51547, September 28, 1998), NHTSA stated the following when addressing frontal air bag technology. The agency explained that, when a vehicle is modified to accommodate a person with a disability, typically the nature of the work that is done requires the air bag or some part of the crash sensing system connected to it to be removed. The make inoperative exemption was needed when the OEM-supplied seat had to be removed or work done to disengage or possibly affect the performance of the air bag system.
        These same considerations apply to the side air bag systems. Removing an OEM seat that has a side air bag and replacing it with an aftermarket seat that does not would likely make inoperative the system installed in compliance with FMVSS No. 214. Making some other substantive modification of the OEM seat or restraint system to accommodate a person with a disability could also affect the measurement of the injury criteria specified in the standard. We tentatively believe that an exemption from the make inoperative provision with regard to the pole test in FMVSS No. 214 is needed to permit modification of the vehicle's seating system to accommodate a person with a disability. This is comparable to the position taken by NHTSA with regard to the make inoperative exemption for frontal air bags required by FMVSS No. 208. See 595.7(c)(14).
        However, we recognize that the petitioner's request presents a trade-off of substantial side impact protection in exchange for continued mobility for people with disabilities and some enhancement in easier and possibly safer vehicle entry and exit.2
           Comments are requested on the proposed exemption. To achieve the maximum safety benefit of the regulations, it is our desire to provide the narrowest exemption possible to accommodate the needs of disabled persons, without unreasonably expanding its use to situations where the benefits of the exemption may be outweighed by the drawbacks of nonconformance with the safety standard. We seek comment on whether an exemption is needed to make inoperative side curtain and torso air bags that are not located in the seat, i.e., side air bags that are found, for example, in door panels, pillars, or roof headliners. Could the vehicle seating system be removed or modified without negatively affecting the crash sensing system for door-mounted side air bags or roof-mounted window curtains? NHTSA would like to know if keeping air bags and activation systems that are not contained in the OEM seating systems would be compatible with adaptive seating currently in use. Would these modifications affect another designated seating position? What types of modifications would be necessary?

            2 NHTSA estimated in the FMVSS No. 214 rulemaking that side head and torso air bags result in a 24 percent reduction in fatality risk for nearside occupants and an estimated 14 percent reduction in fatality risk by torso bags alone. See Docket No. NHTSA-29134, NHTSA's Final Regulatory Impact Analysis.)

        Dates
        We are limiting the comment period to 30 days because the upgraded FMVSS No. 214 requirements have begun phasing in September 1, 2010. NHTSA would like to consider the comments and complete this response to the petition as quickly as possible.
        In view of the September 1, 2010 phase-in date for the FMVSS No. 214 amendments, and because this rulemaking would remove a restriction on the modification of vehicles for persons with disabilities, if a final rule is issued NHTSA anticipates making the amendment effective in less than 180 days following publication of the rule.
        Rulemaking Analyses and Notices
        Executive Order 12866 and DOT Regulatory Policies and Procedures

        NHTSA has considered the impact of this rulemaking action under E.O. 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” It is not considered to be significant under E.O. 12866 or the Department's Regulatory Policies and Procedures (44 FR 11034; February 26, 1979). NHTSA has determined that the effects are so minor that a regulatory evaluation is not needed to support the subject rulemaking. This rulemaking would impose no costs on the vehicle modification industry. If anything, there could be a cost savings due to the proposed exemptions.
        Modifying a vehicle in a way that makes inoperative the performance of side impact air bags could be detrimental for the occupants of the vehicle in a side crash. However, the number of vehicles potentially modified would be very few in number. This is essentially the trade-off that NHTSA is faced with when increasing mobility for persons with disabilities: When necessary vehicle modifications are made, some safety may unavoidably be lost to gain personal mobility. We have requested comments on how the agency may make the exemption as narrow as reasonably possible.
        Regulatory Flexibility Act
        Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of proposed rulemaking or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.
        NHTSA has considered the effects of this proposed rule under the Regulatory Flexibility Act. Most dealerships and repair businesses are considered small entities, and a substantial number of these businesses modify vehicles to accommodate individuals with disabilities. I certify that this proposed rule would not have a significant economic impact on a substantial number of small entities. While most dealers and repair businesses would be considered small entities, the proposed exemption would not impose any new requirements, but would instead provide additional flexibility. Therefore, the impacts on any small businesses affected by this rulemaking would not be substantial.
        Executive Order 13132 (Federalism)
        NHTSA has examined today's proposed rule pursuant to Executive Order 13132 (64 FR 43255; Aug. 10, 1999) and concluded that no additional consultation with States, local governments, or their representatives is mandated beyond the rulemaking process. The agency has concluded that the proposed rule does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The proposal does not 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.” This proposed rule would not impose any requirements on anyone. This proposal would lessen a burden on modifiers.
        NHTSA rules can have preemptive effect in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision:

          When a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under this chapter.

        49 U.S.C. 30103(b)(1). This provision is not relevant to this rulemaking as it does not involve the establishing, amending or revoking or a Federal motor vehicle safety standard.

        Second, the Supreme Court has recognized the possibility, in some instances, of implied preemption of State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law. We are unaware of any State law or action that would prohibit the actions that this proposed rule would permit.
        Civil Justice Reform
        When promulgating a regulation, agencies are required under Executive Order 12988 to make every reasonable effort to ensure that the regulation, as appropriate: (1) Specifies in clear language the preemptive effect; (2) specifies in clear language the effect on existing Federal law or regulation, including all provisions repealed, circumscribed, displaced, impaired, or modified; (3) provides a clear legal standard for affected conduct rather than a general standard, while promoting simplification and burden reduction; (4) specifies in clear language the retroactive effect; (5) specifies whether administrative proceedings are to be required before parties may file suit in court; (6) explicitly or implicitly defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship of regulations.
        Pursuant to this Order, NHTSA notes as follows. The preemptive effect of this proposed rule is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.
        National Technology Transfer and Advancement Act
        Under the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113), “all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.” Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards. No voluntary standards exist regarding this proposed exemption for modification of vehicles to accommodate persons with disabilities.
        Unfunded Mandates Reform Act

        The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). This proposed exemption would not result in expenditures by State, local or tribal governments, in the aggregate, or by the private sector in excess of $100 million annually.
        National Environmental Policy Act
        NHTSA has analyzed this rulemaking action for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action would not have any significant impact on the quality of the human environment.
        Paperwork Reduction Act
        Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This proposal does not contain new reporting requirements or requests for information beyond what is already required by 49 CFR Part 595 Subpart C.
        Plain Language
        Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:
        • Have we organized the material to suit the public's needs?
        • Are the requirements in the rule clearly stated?
        • Does the rule contain technical language or jargon that isn't clear?
        • Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?
        • Would more (but shorter) sections be better?
        • Could we improve clarity by adding tables, lists, or diagrams?
        • What else could we do to make the rule easier to understand?
        If you have any responses to these questions, please include them in your comments on this proposal.
        Regulation Identifier Number (RIN)
        The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

          List of Subjects in 49 CFR Part 595
          Motor vehicle safety, Motor vehicles.

        In consideration of the foregoing, we propose to amend 49 CFR part 595 to read as follows:

          PART 595—MAKE INOPERATIVE EXEMPTIONS
          1. The authority citation for part 595 continues to read as follows:

            Authority:
             49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166; delegation of authority at 49 CFR 1.50.

          2. Amend § 595.7 by revising paragraph (c)(15) to read as follows:

            § 595.7
            Requirements for vehicle modifications to accommodate people with disabilities.

            (c)

            (15) S7 and S9 of 49 CFR 571.214, for the designated seating position modified, in any cases in which the restraint system and/or seat at that position must be changed to accommodate a person with a disability.

            Issued on: September 23, 2010.
            Joseph S. Carra,
            Acting Associate Administrator for Rulemaking.

      [FR Doc. 2010-24344 Filed 9-27-10; 8:45 am]
      BILLING CODE 4910-59-P


        DEPARTMENT OF TRANSPORTATION
        Federal Motor Carrier Safety Administration
        49 CFR Parts 350, 390, 394, 395 and 398
        [Docket No. FMCSA-97-2350; formerly FHWA-97-2350 and MC-96-28]
        RIN 2126-AA23
        Hours of Service of Drivers; Driver Rest and Sleep for Safe Operations

          AGENCY:
          Federal Motor Carrier Safety Administration (FMCSA), DOT.

          ACTION:
          Notice of proposed rulemaking (NPRM); extension of comment period.

          SUMMARY:
          The FMCSA is extending this rulemaking's comment period until October 30, 2000. This is in response to numerous petitions received by the FMCSA from motor carriers, drivers and trucking associations, and several members of Congress requesting an extension of the comment period closing date. The petitioners based their requests on the time required to review the vast body of research, assess the impact of the proposed rules, and provide meaningful comments.

          The FMCSA is also placing in the docket the pre-publication final report on “Effects of Sleep Schedules on Commercial Motor Vehicle Driver Performance,” prepared by the Division of Neuropsychiatry, Walter Reed Army Institute of Research.

          DATES:
          Comments to the NPRM should be received no later than October 30, 2000. Late comments will be considered to the extent practicable.

          ADDRESSES:
          Signed, written comments should refer to the docket number that appears at the top of this document and must be submitted to the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. All comments received will be available for examination at the above address between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped envelope or postcard.

          FOR FURTHER INFORMATION CONTACT:

            For information on the proposed rule: Mr. David Miller or Ms. Deborah Freund, Federal Motor Carrier Safety Administration, (202) 366-1790, and Mr. Charles Medalen, Office of the Chief Counsel, Federal Highway Administration, (202) 366-1354. For information about submitting comments and data electronically: DMS Web staff at: Mail. Dockets@tasc.dot.gov, Department of Transportation, 400 Seventh Street, SW.,Washington, DC 20590-0001.

        SUPPLEMENTARY INFORMATION:
        On May 2, 2000 (65 FR 25540), the FMCSA published an NPRM proposing to revise its hours-of-service (HOS) regulations to require motor carriers to provide drivers with better opportunities to obtain sleep, and thereby reduce the risk of drivers operating commercial motor vehicles (CMV) while drowsy, tired, or fatigued to reduce crashes involving these drivers. The FMCSA explained that this action is necessary because we estimate that 755 fatalities and 19,705 injuries occur each year on the nation's roads because of drowsy, tired, or fatigued CMV drivers. The proposed regulations would:
        1. Revert to a 24-hour daily cycle, and a 7-day weekly cycle.
        2. Adjust the work-rest requirements for various types of operations.
        3. Emphasize rest. Require, for long-haul and regional drivers, a period of 10 consecutive hours off duty within each 24-hour cycle, and two hours of additional time off in each 14-hour work period within each 24-hour cycle.
        4. Require weekends, or their functional equivalent, to include at a minimum a rest period that includes two consecutive periods from 11 p.m. to 7 a.m.
        5. Require the use of electronic on-board recorders in CMVs used by drivers in long-haul and regional operations.
        The FMCSA has received petitions from the American Trucking Associations, Commercial Vehicle Safety Alliance, Distribution and LTL Carriers Association, National Private Truck Council and numerous motor carriers, drivers, other industry associations, and members of Congress requesting that the comment period to be extended. The petitioners voiced concerns that the lengthy proposed rule was extremely complex and that 90 days was insufficient time to review the research, assess the impact of the proposed rules on CMV operations, and provide meaningful comments. We agree that more time for in-depth analysis of the NPRM, including the numerous studies involving fatigue, driver physiology, crash data, and operating characteristics of the various CMV operations, by the affected parties, would be beneficial to the FMCSA in this rulemaking. For the reasons above, the FMCSA finds good cause to extend this NPRM comment period closing date for 90 days.
        The FMCSA is also placing in the docket the pre-publication final report on “Effects of Sleep Schedules on Commercial Motor Vehicle Driver Performance,” prepared by the Division of Neuropsychiatry, Walter Reed Army Institute of Research.

          Authority:
          49 U.S.C. 322 and 49 CFR 1.73.

          Issued on: June 12, 2000.
          Clyde J. Hart, Jr.
          Acting Deputy Administrator.

      [FR Doc. 00-15416 Filed 6-16-00; 8:45 am]
      BILLING CODE 4910-22-P