[Federal Register Volume 69, Number 125 (Wednesday, June 30, 2004)]
[Proposed Rules]
[Pages 39395-39400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14610]


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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.

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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

[[Page 39396]]

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

[[Page 39397]]

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

[[Page 39398]]

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

[[Page 39399]]

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.

[[Page 39400]]

    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