Endangered and Threatened Wildlife and Plants; Final Rule to List the Columbia Basin Distinct Population Segment of the Pygmy Rabbit (Brachylagus idahoensis) as Endangered

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: March 5, 2003 (Volume 68, Number 43)]
[Rules and Regulations]
[Page 10388-10409]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05mr03-13]

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1080-AI17

Endangered and Threatened Wildlife and Plants; Final Rule to List
the Columbia Basin Distinct Population Segment of the Pygmy Rabbit
(Brachylagus idahoensis) as Endangered

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
endangered status for the Columbia Basin distinct population segment of
the pygmy rabbit (Brachylagus idahoensis) pursuant to the Endangered
Species Act of 1973, as amended (Act). This population consists of
fewer than 30 wild individuals in Douglas County, Washington, and a
small captive population.
The Columbia Basin pygmy rabbit is imminently threatened by recent
decreases in its population size and distribution that have caused it
to be susceptible to the combined influence of catastrophic
environmental events, habitat degradation and fragmentation, disease,
predation, demographic limitations, and loss of genetic heterogeneity.
We find that these threats constitute a significant risk to the well-
being of the Columbia Basin pygmy rabbit and, as such, make the
protective measures afforded by the Act immediately available with
publication of this final rule.

DATES: This rule becomes effective on March 5, 2003.

ADDRESSES: The complete file for this final rule is available for
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service, Upper Columbia Fish and Wildlife Office,
11103 East Montgomery Drive, Spokane, Washington 99206.

FOR FURTHER INFORMATION CONTACT: Christopher Warren, at the address
listed above (telephone 509/891-6839; facsimile 509/891-6748;
electronic mail: chris_warren@fws.gov).

SUPPLEMENTARY INFORMATION:

Background

The pygmy rabbit (Brachylagus idahoensis) is a member of the family
Leporidae, which includes hares and rabbits. The species has been
placed in a number of genera since it was first classified in 1891 as
Lepus idahoensis (Washington Department of Fish and Wildlife (WDFW)
1995a). In 1904, it was reclassified and placed in the genus
Brachylagus. In 1930, it was again reclassified and placed in the genus
Sylvilagus. More recent examination of dentition (Hibbard 1963) and
analysis of blood proteins (Johnson 1968) suggest that the pygmy rabbit
differs significantly from species within either the Lepus or
Sylvilagus genera. The pygmy rabbit is now generally considered to be
within the monotypic genus Brachylagus, and classified as B. idahoensis
(Green and Flinders 1980a; WDFW 1995a). There are no recognized
subspecies of the pygmy rabbit (Dalquest 1948; Green and Flinders
1980a).
The pygmy rabbit is the smallest Leporid in North America, with
mean adult weights from 375 to about 500 grams (0.83 to 1.1 pounds),
and lengths from 23.5 to 29.5 centimeters (cm) (9.3 to 11.6 inches
(in)) (Orr 1940; Janson 1946; Wilde 1978; Gahr 1993; WDFW 1995a; T.
Katzner, Arizona State University, pers. comm. 2002). Females tend to
be slightly larger than males. Pygmy rabbits undergo an annual molt.
During summer, their overall color is slate-gray tipped with brown.
Their legs, chest, and nape (back of neck) are tawny cinnamon-brown,
their bellies are whitish, and the entire edges of their ears are pale
buff. Their ears are short (3.5 to 5.2 cm (1.4 to 2.0 in)), rounded,
and thickly furred outside. Their tails are small (1.5 to 2.4 cm (0.6
to 0.9 in)), uniform in color, and nearly unnoticeable in the wild (Orr
1940; Janson 1946; WDFW 1995a). The pygmy rabbit is distinguishable
from other Leporids by its small size, short ears, gray color, small
hind legs, and lack of white on the tail.
Pygmy rabbits are typically found in areas of tall, dense sagebrush
(Artemisia spp.) cover, and are highly dependent on sagebrush to
provide both food and shelter throughout the year (Orr 1940; Green and
Flinders 1980a; WDFW 1995a). The winter diet of pygmy rabbits is
comprised of up to 99 percent sagebrush (Wilde 1978), which is unique
among Leporids (White et al. 1982). During spring and summer in Utah,
their diet consists of roughly 51 percent sagebrush, 39 percent grasses
(particularly native bunch-grasses, such as Agropyron spp. and Poa
spp.), and 10 percent forbs (an herb other than grass) (Green and
Flinders 1980b). There is evidence that pygmy rabbits preferentially
select native grasses as forage during this period in comparison to
other available foods. In addition, total grass cover relative to forbs
and shrubs may be reduced within the immediate areas occupied by pygmy
rabbits as a result of its use as a food source during spring and
summer (Green and Flinders 1980b). The specific diets of pygmy rabbit
populations likely change depending on the region occupied (T. Katzner,
pers. comm. 2002).
The pygmy rabbit is believed to be one of only two Leporids in
North America that digs its own burrows (Nelson 1909; Green and
Flinders 1980a; WDFW 1995a), the other being the volcano rabbit
(Romerolagus diazi) found in central Mexico (Durrell and Mallinson
1970). Pygmy rabbit burrows

[[Page 10389]]

are typically found in relatively deep, loose soils of wind-borne or
water-borne (e.g., alluvial fan) origin. Pygmy rabbits occasionally
make use of burrows abandoned by other species, such as the yellow-
bellied marmot (Marmota flaviventris) or badger (Taxidea taxus) (Wilde
1978; Green and Flinders 1980a; WDFW 1995a) and, as a result, may occur
in areas of shallower or more compact soils that support sufficient
shrub cover (Bradfield 1974). During winter, pygmy rabbits make
extensive use of snow burrows, possibly to access sagebrush forage
(Bradfield 1974), as travel corridors among their underground burrows,
and/or as thermal cover (Katzner and Parker 1997).
Pygmy rabbits, especially juveniles, likely use their burrows as
protection from predators and inclement weather (Bailey 1936; Bradfield
1974). The burrows frequently have multiple entrances, some of which
are concealed at the base of larger sagebrush plants (WDFW 1995a).
Burrows are relatively simple and shallow, often no more than 2 meters
(m) (6.6 feet (ft)) in length and usually less than 1 m (3.3 ft) deep
with no distinct chambers (Bradfield 1974; Green and Flinders 1980a;
Gahr 1993). Burrows are typically dug into gentle slopes or mound/
inter-mound areas of more level or dissected topography (Wilde 1978;
U.S. Department of Agriculture (USDA)1991; Gahr 1993). In general, the
number of active burrows in an area increases over the summer as the
number of juveniles increases. However, the number of active burrows
may not be directly related to the number of individuals in a given
area because some individual pygmy rabbits appear to maintain multiple
burrows, while some individual burrows are used by multiple individuals
(Gahr 1993; WDFW 1995a).
Pygmy rabbits begin breeding their second year and, in Washington,
breeding occurs from February through July (WDFW 1995a). In some parts
of the species' range, females may have up to three litters per year
and average six young per litter (Green 1978; Wilde 1978). Breeding
appears to be highly synchronous in a given area and juveniles are
often identifiable to cohorts (Wilde 1978). No evidence of nests,
nesting material, or lactating females with young has been found in
burrows (Bradfield 1974; Gahr 1993; WDFW 1995a). Individual juveniles
have been found under clumps of sagebrush, although it is not known
precisely where the young are born in the wild or if they may be
routinely hidden at the bases of scattered shrubs or within burrows
(Wilde 1978).
Current information on captive pygmy rabbits indicates that females
may excavate specialized ``natal'' burrows for their litters in the
vicinity of their regular burrows (P. Swenson, Oregon Zoo, pers. comm.
2001; L. Shipley, Washington State University (WSU), pers. comm. 2001).
Apparently, females begin to dig and supply nesting material (e.g.,
grass clippings) to these burrows several days prior to giving birth,
and may give birth and nurse their young at the ground surface in a
small depression near the burrow's entrance. After nursing, the young
return to the burrow and the female re-fills the burrow entrance with
loose soil and otherwise disguises the immediate area to avoid
detection. Other ``dead-end'' burrows that females construct nearby are
apparently associated with the natal burrows and may be important for
providing proper aeration. Females may also alter their defecation and
latrine habits while pregnant and nursing (P. Swenson, pers. comm.
2001). Further work with captive and wild pygmy rabbits should shed
additional light on the details of their reproductive strategy.
Pygmy rabbits may be active at any time of the day or night and
appear to be most active during mid-morning (Bradfield 1974; Green and
Flinders 1980a; Gahr 1993). Pygmy rabbits maintain a low stance, have a
deliberate gait, and are relatively slow and vulnerable in more open
areas. They can evade predators by maneuvering through the dense shrub
cover of their preferred habitats, often along established trails, or
by escaping into their burrows (Bailey 1936; Severaid 1950; Bradfield
1974).
Pygmy rabbits tend to have relatively small home ranges during
winter, remaining within roughly 30 m (98 ft) of their burrows (Orr
1940; Janson 1946; Gahr 1993; Katzner and Parker 1997), although some
snow burrows may extend outward up to 100 m (328 ft) (Bradfield 1974).
They have larger home ranges during spring and summer (Orr 1940; Janson
1946; Gahr 1993; Katzner and Parker 1997). During the breeding season
in Washington, females tend to make relatively short movements within a
small core area and have home ranges covering roughly 2.7 hectares (ha)
(6.7 acres (ac)); males tend to make longer movements, traveling among
a number of females, resulting in home ranges covering roughly 20.2 ha
(49.9 ac) (Gahr 1993). These home range estimates in Washington are
considerably larger than for pygmy rabbit populations in other areas of
their historic range (WDFW 1995a; Katzner and Parker 1997). Pygmy
rabbits may travel up to 1.2 kilometers (km) (0.75 miles (mi)) from
their burrows (Gahr 1993), and there are a few records of apparently
dispersing individuals moving up to 3.5 km (2.17 mi) (Green and
Flinders 1979; Katzner and Parker 1998).
The annual mortality rate of adult pygmy rabbits may be as high as
88 percent, and over 50 percent of juveniles can apparently die within
roughly 5 weeks of their emergence (Wilde 1978; WDFW 1995a). However,
the mortality rates of adult and juvenile pygmy rabbits can vary
considerably between years, and even between juvenile cohorts within
years (Wilde 1978). Predation was shown to be the main cause of pygmy
rabbit mortality in Idaho (Green 1979). Potential predators include
badgers, long-tailed weasels (Mustela frenata), coyotes (Canis
latrans), bobcats (Felis rufus), great horned owls (Bubo virginianus),
long-eared owls (Asio otus), ferruginous hawks (Buteo regalis),
northern harriers (Circus cyaneus), and common raven (Corvus corax)
(Janson 1946; Gashwiler et al. 1960; Green 1978; Wilde 1978; WDFW
1995a; D. Hays, WDFW, pers. comm. 2002; M. Hallet, WDFW, pers. comm.
2002).
Population cycles are not known in pygmy rabbits, although local,
relatively rapid population declines have been noted in several States
(Bradfield 1974; Weiss and Verts 1984; WDFW 1995a). After initial
declines, pygmy rabbit populations may not have the same capacity for
rapid increases in numbers as other Leporids due to their close
association with specific components of sagebrush ecosystems, and the
relatively limited availability of their preferred habitats (Wilde
1978; Green and Flinders 1980b; WDFW 1995a).

Distribution and Status

The historic distribution of the pygmy rabbit included much of the
semi-arid, shrub steppe region of the Great Basin and adjacent
intermountain zones of the conterminous western United States (Green
and Flinders 1980a), and included portions of Montana, Idaho, Wyoming,
Utah, Nevada, California, Oregon, and Washington (Figure 1).
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Currently, pygmy rabbits are not distributed continuously across
their range, nor were they in the past. Rather, they are found in areas
within their broader distribution where sagebrush cover is sufficiently
tall and dense, and soils are sufficiently deep and loose to allow
burrowing (Bailey 1936; Green and Flinders 1980a; Weiss and Verts 1984;
WDFW 1995a). The local distribution of these habitat patches, and thus
pygmy rabbits, likely shifts

[[Page 10391]]

across the landscape in response to various sources of disturbance
(e.g., fire, flooding, grazing, crop production) combined with long-
and short-term weather patterns. In the past, more dense vegetation
along permanent and intermittent stream channels, alluvial fans, and
sagebrush plains probably provided travel corridors and dispersal
habitat for pygmy rabbits between appropriate use areas (Green and
Flinders 1980a; Weiss and Verts 1984; WDFW 1995a). Since European
settlement of the western United States, more dense vegetation
associated with some human activities (e.g., fence rows, roadway
shoulders, crop margins, abandoned fields) may have also acted as
avenues of dispersal between local populations of pygmy rabbits (Green
and Flinders 1980a; Pritchett et al. 1987).

Prehistoric Distribution

There is very little information currently available regarding the
prehistoric distribution of the pygmy rabbit throughout the majority of
its range. However, the pygmy rabbit has been present within the
Columbia Basin, a geographic area that extends from northern Oregon
through eastern Washington (Quigley et al. 1997), for over 100,000
years (Lyman 1991). This population segment, which we refer to as the
Columbia Basin pygmy rabbit, is believed to have been disjunct from the
remainder of the species' range since at least the early Holocene
(10,000 to 7,000 years before present (BP)), as suggested by the fossil
record (Grayson 1987; Lyman 1991). This separation is in contrast to
the relatively short-term, local patterns of isolation, extirpation,
and recolonization that likely occur throughout pygmy rabbit range (see
above). The Columbia Basin pygmy rabbit probably had a broader
distribution during the mid-Holocene (roughly 7,000 to 3,000 years BP)
(Lyman 1991). Gradual climate change affecting the distribution and
composition of sagebrush communities is thought to have resulted in a
reduction of the Columbia Basin pygmy rabbit's range during the late
Holocene (3,000 years BP to present) (Grayson 1987; Lyman 1991).

Historic and Current Distribution

Columbia Basin pygmy rabbits have been considered rare with local
areas of occurrence within the Columbia Basin for many years (Dalquest
1948), although there is little comprehensive information available
regarding their historic distribution and abundance within this region
(WDFW 1995a). Museum specimens and reliable sight records indicate that
Columbia Basin pygmy rabbits probably occurred in portions of at least
five Washington counties during the first half of the 1900s, including
Douglas, Grant, Lincoln, Adams, and Benton (Figure 2).
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Once thought to be extirpated, Columbia Basin pygmy rabbits were
again located in Washington in 1979. Intensive surveys in 1987 and 1988
discovered five small subpopulations in southern Douglas County; three
occurred on State lands and two on private lands (WDFW 1995a). With the
exception of a single site record from Benton County in 1979, Columbia
Basin pygmy rabbits have been found only in southern Douglas and
northern Grant counties since 1956 (WDFW 2000a). The Washington
Wildlife Commission designated the pygmy rabbit as a State threatened
species in 1990, and reclassified it as endangered in 1993 (WDFW
1995a).
The number of Columbia Basin pygmy rabbit subpopulations and active
burrows in Washington has declined over the past decade (WDFW 2001a).
Four of the five subpopulations located in 1987 and 1988 were very
small, with fewer than 100 active burrows (WDFW 1995a); the largest
subpopulation (at the State-owned Sagebrush Flat site in

[[Page 10393]]

Douglas County) contained roughly 588 active burrows in 1993, when it
was estimated to support fewer than 150 rabbits (Gahr 1993). While an
additional subpopulation was discovered on private land in northern
Grant County in 1997, three of the small subpopulations originally
located were extirpated during the 1990s, leaving just three known
subpopulations in 1999 (WDFW 2001a).
One of the three remaining sites experienced a catastrophic fire in
1999 and declined to three active burrows, while the newly discovered
site in Grant County declined for unknown reasons to two active burrows
following the winter of 1999-2000 (WDFW 2001a). These two
subpopulations are now thought to be extirpated (WDFW 2001b). In
addition, during the winter of 1997-1998, the number of active Columbia
Basin pygmy rabbit burrows at the Sagebrush Flat site declined by
approximately 50 percent, and has continued to decline each year since
(WDFW 2001a). The entire, wild Columbia Basin pygmy rabbit population
is now considered to consist of fewer than 30 individuals from just one
known subpopulation at the Sagebrush Flat site in Douglas County (D.
Hays, pers. comm. 2002).
Although habitat loss and fragmentation have likely played a
primary role in the long-term decline of the Columbia Basin pygmy
rabbit, it is unlikely that these factors have directly influenced the
post-1995 declines at the Sagebrush Flat site and the extirpations of
some of the smaller populations (WDFW 2001a). Once populations decline
below a certain threshold, they are at risk of extirpation from a
number of influences including chance environmental events (e.g.,
extreme weather), catastrophic habitat or resource failure (e.g., due
to fire or insect infestations), predation, disease, demographic
limitations, and loss of genetic heterogeneity. The Columbia Basin
pygmy rabbit in the wild is currently at such risk and, without
intervention, is likely to become extirpated in the near future (WDFW
2001a).

Previous Federal Action

We added the pygmy rabbit to our candidate species list on November
21, 1991, as a category 2 species (56 FR 58804). A category 2 species
was one for which we possessed information indicating that a proposal
to list it as threatened or endangered under the Act was possibly
appropriate, but for which sufficient data on biological vulnerability
and threats were not available to support a proposed rule. In a
February 28, 1996, notice, we discontinued the designation of category
2 species as candidates for listing under the Act (61 FR 7596). The
Columbia Basin pygmy rabbit was not included as a candidate for listing
in this notice.
In FY 2001, the Service was nearly faced with a situation where it
could not comply with all its court orders. Early in calendar year
2001, it became apparent that the cost of compliance with existing
court orders exceeded our FY 2001 listing funding. After more than 6
months of negotiating, the Service was able to reach an agreement with
several plaintiffs that allowed us to postpone a few actions previously
scheduled for work in FY 2001. This agreement allowed us to reallocate
funding to complete court-ordered work as well as some listing actions.
On August 28, 2001, we reached an agreement with the Center for
Biological Diversity, Southern Appalachian Biodiversity Project, and
the California Native Plant Society to complete work on a number of
species proposed for listing. Under this agreement, we were required to
issue several final listing decisions, propose a number of other
species for listing, and review three species for emergency listing,
including the Columbia Basin DPS of the pygmy rabbit (Center for
Biological Diversity, et al. v. Norton, Civ. No. 01-2063 (JR) (D.D.C.),
entered by the court on October 2, 2001).
On November 30, 2001, we published an emergency rule to list the
Columbia Basin pygmy rabbit as endangered (66 FR 59734). We found that
emergency listing action was justified because immediate and
significant risks to the well-being of this DPS existed due to its
recent decreases in population size and distribution over the past
several years. Our November 30, 2001, emergency rule provided Federal
protection to the Columbia Basin pygmy rabbit pursuant to the Act for a
period of 240 days. Concurrently with the emergency rule, we also
published a proposed rule to list this DPS as endangered under our
normal listing procedures (66 FR 59769). On February 7, 2002, we
published a notice in the Federal Register extending the comment period
for the proposed rule through February 28, 2002 (67 FR 5780). The
comment period was reopened to accommodate requests by State resource
agencies and private interests for additional time to provide input. On
February 12, 2002, we held a public meeting in East Wenatchee,
Washington, to discuss the proposed rule with any interested parties.
On July 17, 2002, we published a notice in the Federal Register
extending the comment period for the proposed rule through August 1,
2002 (67 FR 46951).
In accordance with section 10(a)(1)(A) of the Act, on December 18,
2001, we issued a recovery permit to the WDFW (TE050644) for their
ongoing management actions to protect and conserve the Columbia Basin
pygmy rabbit (see Current Management Actions, below). We issued
revisions to this permit on January 10, 2002, and March 18, 2002. We
also published notices in the Federal Register on December 19, 2001,
and March 20 and April 3, 2002, describing the emergency circumstances,
announcing receipt of permit applications, and issuing public notice
exemptions concerning this permit and its revisions (66 FR 65508, 67 FR
15825, 67 FR 13004).

Current Management Actions

The WDFW has undertaken a variety of conservation actions for the
Columbia Basin pygmy rabbit since 1979 (WDFW 1995a, 2001a). These
actions have included population surveys, habitat inventories, land
acquisitions, habitat restoration, land management agreements,
initiation of studies on the effects of livestock grazing, and predator
control. These efforts have been funded by a variety of sources. As
funding sources and staffing levels allow, WDFW efforts to conserve the
Columbia Basin pygmy rabbit in the wild will continue (D. Hays, pers.
comm. 2002).
During the fall of 2000, the WDFW, in cooperation with the Oregon
Zoo, initiated a study of husbandry techniques for pygmy rabbits (WDFW
2001a). This study used five pygmy rabbits captured in Idaho and was
undertaken to improve the information base for proposed captive
propagation and release efforts for the Columbia Basin pygmy rabbit.
Due to the continuing decline of pygmy rabbit subpopulations and active
burrows in Washington, the WDFW, in cooperation with WSU, expedited
their captive propagation efforts for the Columbia Basin pygmy rabbit
during the spring of 2001 (WDFW 2001b; D. Hays, pers. comm. 2001).
The main goal of this effort is to capture up to 20 individuals to
establish a captive breeding stock. The actual number and type (gender,
age, family unit) of pygmy rabbits to be taken from the wild is based
partly on information from the ongoing husbandry study of Idaho pygmy
rabbits, partly on estimates of what is needed to allow for appropriate
manipulation of family lineages to better manage this population's
unique genetic profile, and partly on the availability of animals for
capture. Any Columbia Basin pygmy

[[Page 10394]]

rabbits that are not considered essential to the captive propagation
effort will be left in the wild, and ongoing management to protect the
wild portion of this population will continue.
Since the spring of 2001, 16 Columbia Basin pygmy rabbits (nine
females, seven males) have been captured as an initial source for
captive breeding efforts (D. Hays, pers. comm. 2002). In addition,
shortly after being captured, one female gave birth to a litter of five
offspring (two females, three males) that was conceived in the wild (D.
Hays, pers. comm. 2001; L. Shipley, pers. comm. 2001). Of the adult
rabbits, two males and one female captured from the wild subsequently
died (WDFW 2001c). Full necropsies were conducted on these three
specimens, with the following results: One male, which died shortly
after being captured, may have had reduced body condition while in the
wild; the other male died from unknown causes; and the female died due
to complications caused by a fall from a sagebrush plant placed in her
cage. Several procedures, developed in coordination with results from
the ongoing husbandry study, have been implemented to reduce the risk
of capture-related mortality of pygmy rabbits. In addition, in order to
reduce the risk of catastrophic loss of a single captive population, a
number of Columbia Basin pygmy rabbits have been placed at the Oregon
Zoo facility. Appropriate measures have been taken to ensure that the
Columbia Basin pygmy rabbits remain completely segregated from the
pygmy rabbits captured in Idaho that are being used for the husbandry
study.
The remaining 18 captive Columbia Basin pygmy rabbits appear to
have adjusted well to the two rearing facilities (WDFW 2001c). As
opportunities arise, the intent is to capture additional Columbia Basin
pygmy rabbits that will complement the genetic profiles and potential
breeding scenarios of those already in captivity (D. Hays, pers. comm.
2002; K. Warheit, WDFW, pers. comm. 2002).
The WDFW's captive propagation program affords an opportunity to
protect and maintain the Columbia Basin pygmy rabbit until conditions
can be made more favorable for its survival in the wild. Ultimately,
the goal of the captive propagation effort is to release captive-bred
Columbia Basin pygmy rabbits back into suitable habitats within their
historic range where viable subpopulations can become re-established
and self-sustained in the wild (WDFW 2001b; D. Hays, pers. comm. 2001).
The number and size of the wild subpopulations necessary for recovery
pursuant to the Act have not yet been determined. Columbia Basin pygmy
rabbits within captive rearing facilities will not be counted towards
recovery of the species. The timing and objectives for the release
phase of the program will be further developed as the captive
propagation effort becomes established. The WDFW will remain the lead
agency for these efforts, and has developed a Science Advisory Group to
provide recommendations and technical oversight for the conservation
program. The group is currently comprised of State and Federal agency
personnel, public zoo, and university experts, representatives from
non-governmental organizations, and private individuals with interests
in the conservation of the Columbia Basin pygmy rabbit.
The Nature Conservancy (TNC), a non-governmental natural resource
advocacy organization, has acquired, or obtained easements on, portions
of the remaining shrub steppe habitat in southern Douglas and northern
Grant counties, including the acquisition of approximately 6,900 ha
(17,000 ac) adjacent to the WDFW's Sagebrush Flat site. As appropriate,
TNC lands in central Washington will be managed to support the
conservation efforts undertaken for the Columbia Basin pygmy rabbit (C.
Warner, TNC, pers. comm. 2001).
Portions of the remaining shrub steppe habitat in southern Douglas
and northern Grant counties are under the jurisdiction of the U.S.
Bureau of Land Management (BLM) and State resource agencies.
Conservation measures for the Columbia Basin pygmy rabbit are
considered in the management of these agency lands (D. Hays, pers.
comm. 2001; N. Hedges, BLM, pers. comm. 2001). Many of the existing and
future land acquisitions and management actions of the TNC, BLM, and
State agencies in this area are targeted at sites recently occupied by
the Columbia Basin pygmy rabbit and at providing connectivity of
appropriate habitats between these sites.
Large areas of privately owned lands in Douglas County are
currently withdrawn from crop production and planted to native and non-
native cover under the Federal Conservation Reserve Program (CRP),
established in 1985 (USDA 1998). These lands, some of which have been
set aside since the late 1980s, provide grass and shrub cover that may
improve the habitat conditions of areas potentially occupied or used as
dispersal corridors by the Columbia Basin pygmy rabbit. New and re-
signed program contracts completed in 1998 increased the acreage of CRP
lands in Douglas County. However, contracts extend for just 10 years,
and new standards for CRP lands were implemented that required
replanting of significant acreage under existing contracts (USDA 1998;
M. Schroeder, WDFW, pers. comm. 2001). Presently, it is unclear what
effects the CRP lands and current changes to the program may have on
the Columbia Basin pygmy rabbit.
Currently, we are assisting private landowners and their
conservation districts with development of a county-wide habitat
conservation plan (HCP) for agricultural lands in Douglas County,
Washington. When completed, the Foster Creek HCP will likely include
measures to protect the Columbia Basin pygmy rabbit and may complement
other, ongoing conservation efforts in Douglas County.

Distinct Vertebrate Population Segment

Pursuant to the Act (16 U.S.C. 1531 et seq.), we must consider for
listing any species, subspecies, or, for vertebrates, any distinct
population segment (DPS) of these taxa if there is sufficient
information to indicate that such action may be warranted. To implement
the measures prescribed by the Act and Congressional direction, the
Service and the National Marine Fisheries Service (NMFS) developed a
joint policy in 1996 that addresses the recognition of DPS for
potential listing actions (61 FR 4722). The policy allows for more
refined application of the Act that better reflects the biological
needs of the taxon being considered, and avoids the inclusion of
entities that do not require its protective measures.
Two elements are used to assess whether a population segment under
consideration for listing pursuant to the Act constitutes a DPS. The
two elements are: (1) The population segment's discreteness from the
remainder of the taxon; and (2) the population segment's significance
to the taxon to which it belongs. A systematic application of these
elements is appropriate, with discreteness criteria applied first,
followed by significance analysis. If we determine that a population
segment being considered for listing represents a DPS, then the status
of the population and level of threats to the population segment is
evaluated based on the five listing factors established by the Act to
determine if listing the DPS as either threatened or endangered is
warranted.

Discreteness

Discreteness may be demonstrated by either, or both, of the
following: (1) Physical, physiological, ecological, behavioral,
morphological, or genetic discontinuity between population

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segments; or (2) international governmental boundaries between which
differences in regulatory mechanisms exist that are significant with
regard to conservation of the taxon. The pygmy rabbit does not occur
outside of the lower 48 conterminous United States, so the
international boundary criterion does not apply.
The Columbia Basin pygmy rabbit has been physically discrete from
the remainder of the taxon for several millennia (see Distribution and
Status, above). In addition, there is current evidence that the
Columbia Basin pygmy rabbit is genetically and ecologically discrete
from the remainder of the taxon (see Significance, below). Based on
this information, we find that the Columbia Basin pygmy rabbit
population segment is discrete from the remainder of the taxon pursuant
to the Act. Physiological, behavioral, or morphological differences
between the Columbia Basin pygmy rabbit and populations throughout the
remainder of the species' range are not known at this time.

Significance

The types of information that may demonstrate the significance of a
discrete population segment to the remainder of its taxon include, but
are not limited to: (1) Persistence of the population segment in an
ecological setting unusual or unique for the taxon; (2) evidence that
loss of the population segment would result in a significant gap in the
range of the taxon; (3) evidence that the discrete population segment
represents the only surviving natural occurrence of the taxon that may
be more abundant elsewhere as an introduced population outside its
historic range; and (4) evidence that the population segment differs
markedly from other population segments in its genetic characteristics.
The following significance factors have bearing on the Columbia Basin
pygmy rabbit.
Markedly different genetic characteristics. Several studies have
been initiated to investigate the pygmy rabbit's genetic profile (WDFW
2000c; WDFW 2001a, c; Cegelski and Waits, undated). To date, the
genetic analyses include current (ca 1990s to present) samples from
Washington, Idaho, and Montana; and museum specimens (ca 1910s to
1980s) from Washington, Idaho, Montana, and Oregon, with a median date
of 1949 among these States (WDFW 2001c). Analyses have included both
mitochondrial DNA (from current samples only) and nuclear DNA markers
(WDFW 2001c; K. Warheit, pers. comm. 2001, 2002).
Results from recent genetic analyses indicate that the Columbia
Basin pygmy rabbit is markedly different from other pygmy rabbit
population segments (WDFW 2001c; K. Warheit, pers. comm. 2001, 2002).
These differences are consistent in both mitochondrial DNA and nuclear
DNA indices, and between current (Washington versus Idaho and Montana)
and museum (Washington versus Idaho, Montana, Oregon) samples. The
genetic results suggest that the Columbia Basin pygmy rabbit diverged
(i.e., was genetically isolated) from the remainder of the taxon at
least 10,000 to 25,000 years BP, and possibly as long as 40,000 to
115,000 years BP (WDFW 2001c; K. Warheit, pers. comm. 2001, 2002). The
genetic differences that have so far been identified between the
Columbia Basin pygmy rabbit and other pygmy rabbit populations are
similar in nature to subspecific differences recognized in other mammal
species. However, potential taxonomic reorganization of the pygmy
rabbit species will require additional study (WDFW 2001c).
In addition to the genetic differences that likely result from
long-term isolation described above, the Columbia Basin pygmy rabbit
also exhibits significantly less genetic diversity compared to other
pygmy rabbit populations. Furthermore, the level of genetic diversity
in this population segment has declined significantly and at an
accelerated rate since the mid-1900s (Washington current versus
Washington museum specimens). These results suggest a recent and rapid
decline in the effective population size (i.e., the number of
individuals contributing to reproduction) of the Columbia Basin pygmy
rabbit, and that this population segment may be experiencing a degree
of inbreeding depression (WDFW 2001c).
Two conclusions may be drawn from the recent results of the genetic
research on the pygmy rabbit--(1) the unique genetic characteristics of
the Columbia Basin pygmy rabbit represent an important component in the
evolutionary legacy of the species and, therefore, a genetic resource
worthy of conservation; and (2) efforts should be undertaken to address
the low level of genetic diversity within this population segment (K.
Warheit, pers. comm. 2001, 2002).
Persistence in an unusual or unique ecological setting. With regard
to the historic distribution of the pygmy rabbit, several studies have
defined and mapped landscape-level ecosystem components of Washington
and Oregon and, to varying degrees, address the management of natural
resources within these regional ecosystems (Daubenmire 1988; Franklin
and Dyrness 1988; Keane et al. 1996; Quigley et al. 1997; Wisdom et al.
1998). Although there are considerable differences between the studies,
the ecosystem mapping units that were developed as a result of these
studies are relatively consistent. These ecosystem mapping units are
important for determining if the Columbia Basin pygmy rabbit may occupy
an unusual or unique ecological setting. In addition, it is important
for delineating the boundaries of any potential DPS in the region, as
required by our DPS policy. Currently, there is insufficient
information available to address the other shrub steppe ecosystems
comprising historic pygmy rabbit range outside of Washington and
Oregon.
During the early 1900s, the pygmy rabbit populations in Washington
and Oregon (Figure 2) occurred in five ecosystems identified by the
above studies. For the purposes of this DPS analysis, we refer to these
ecosystems as the Columbia Basin, High Lava Plains, Northern Great
Basin, Owyhee Uplands, and Modoc Plateau (after Quigley et al. 1997).
The Columbia Basin occurs in Washington and northern Oregon; the other
four ecosystems occur in central and southern Oregon (Figure 3).
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These ecosystems are interspersed to varying degrees with forested
habitats of the Southern and Eastern Cascades ecosystems to the west,
Okanogan Highlands to the north, Bitterroot and Blue Mountains to the
east, and steppe (grassland) habitats of the Palouse Prairie to the
east.
The historic range of the Columbia Basin pygmy rabbit occurred
entirely within the Columbia Basin of central Washington, and this
population segment has been the only representation of the taxon within
this ecosystem for thousands of years. During the early 1900s, the
population segment of pygmy rabbits in central and southern Oregon was
apparently locally dispersed across the High Lava Plains, Northern
Great Basin, Owyhee Uplands, and Modoc Plateau (Figures 2 and 3). The
distribution of the pygmy rabbit in Oregon has likely declined during
the last century (Weiss and Verts 1984; WDFW 2000b) and, currently,
primarily

[[Page 10397]]

encompasses areas within the Northern Great Basin ecosystem.
A number of significant differences are found between the Columbia
Basin ecosystem and the balance of pygmy rabbit range in central and
southern Oregon. In general, the Columbia Basin is lower in elevation,
contains soils of varying origin, and has been influenced by different
geological processes. These structural differences, combined with
regional climatic conditions, significantly influence the broad plant
associations found within each ecosystem (Daubenmire 1988; Franklin and
Dyrness 1988). Historically, transitional steppe habitats were much
more prevalent in the Columbia Basin than in the ecosystems of central
and southern Oregon. In contrast, juniper (Juniperus spp) woodlands and
salt-desert shrub habitats were much more common in central and
southern Oregon. Finally, there are significant differences in the type
and distribution of sagebrush taxa among the ecosystems (Table 1).

Table 1. Differences in ecosystem elements between regions occupied by the extant population segments of the pygmy rabbit in Washington and Oregon (after Winward 1980; Daubenmire 1988;
Franklin and Dyrness 1988; McNab and Avers 1994; Dobler et al. 1996; Quigley et al. 1997).
Ecosystem Elements: Geologic, Edaphic, and Transitional Habitats
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Internally-drained
Population segment Elevations Soils Channeled scablands playas Steppe Juniper woodland Salt-desert scrub
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Columbia Basin................... <914m (<3,000 ft) Deep/Loamy Glacial/ Prominent (north)..... Rare/Absent......... Abundant (east)....... Rare/Absent......... Rare/Absent.
Eolian.
Central/Southern Oregon.......... £1,067 m Thin/Rocky Volcanic Rare/Absent........... Prominent (NGB, OU). Rare/Absent........... Abundant (HLP) Abundant
(<3,500 ft) (HLP \1\) Deep/ Present (NGB, OU). (NGB, OU).
Alluvial (NGB \1\,
OU \1\).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Ecosystem Elements: Sagebrush (Aretemesia) Taxa \2\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Population segement Basin ssp. Wyoming ssp. Mountain ssp. Low Three-tip Stiff Early Silver Black
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Columbia Basin................ Dominant........ Present (west).. Rare/Absent..... Rare/Absent..... Abundant (north) Abundant........ Rare/Absent..... Rare/Absent..... Rare/Absent.
Central/Southern Oregon....... Rare/Absent..... Dominant........ Abundant........ Abundant........ Present (OU).... Present......... Present (HLP)... Present (NGB, Present (NGB,
OU). OU).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Element primarily applies to the ecosystems noted: HLP--High Lava Plains; NGB--Northern Great Basin; OU--Owyhee Uplands.
\2\ Big Sagebrush (A. tridentata) Subspecies (ssp): Basin--A.t. tridentata, Wyoming--A.t. wyomingensis, Mountain--A.t. vaseyana; Low--A. arbuscula; Three-tip--A. tripartita; Stiff--A. rigida;
Early--A. longiloba; Silver--A. cana; Black--A. nova.

There are a number of broad habitat associations in common between
the Columbia Basin and the ecosystems of central and southern Oregon
(Daubenmire 1988; Franklin and Dyrness 1988). However, even within
these common habitat associations, notable differences exist. In
general, the composition of forb species differs considerably between
the Columbia Basin and the ecosystems in central and southern Oregon
(cf Daubenmire 1988; Franklin and Dyrness 1988). Even when the same
forb species may be present, the two regions typically support
different subspecies or varieties of these taxa (Hitchcock and
Cronquist 1973).
Currently, it is unclear if the Columbia Basin pygmy rabbit is
different in several respects (i.e., physiologically, behaviorally, or
morphologically) from other pygmy rabbit populations throughout the
remainder of the species' historic range. However, based on the above
ecological information, and the pygmy rabbit's close association with
sagebrush ecosystems, we conclude that the Columbia Basin represents a
unique ecological setting for the taxon due to its different geologic,
climatic, edaphic (soil), and plant community components. In addition,
the Columbia Basin ecosystem holds different management implications
for the Columbia Basin pygmy rabbit compared to the ecosystems of
southern Oregon and the population segment of pygmy rabbits occupying
that region (see above), and likely also compared to the other
sagebrush ecosystems and population segments found throughout the
remainder of the species' range (see Background, above, and Summary of
Factors Affecting the DPS, below).
Significant gap in the range of the taxon. The Columbia Basin pygmy
rabbit represents an isolated portion of the northern-most extent of
the historic distribution of the taxon (Figure 1). Paleontological
records indicate that the prehistoric distribution of this population
segment (ca 150 to 10,000 \+\ years BP) may have encompassed roughly 23
percent of the Columbia Basin (after Lyman 1991). As recently as the
early 1900s, this population segment was distributed across
approximately 10 percent of the Columbia Basin ecosystem (cf Figures 2
and 3). Currently, the Columbia Basin pygmy rabbit occurs in less than
1 percent of its overall historic distribution, and a small fraction of
its potential prehistoric distribution.
A number of studies address the characteristics of peripheral and/
or isolated populations and their influences on, and importance to, the
remainder of the taxon. These studies indicate that peripheral and
isolated populations may experience increased directional selection due
to marginal or varied habitats at range peripheries, exhibit
adaptations specific to these differing selective pressures,
demonstrate genetic consequences of reduced gene flow dependent on
varying levels of isolation, and/or have different responses to
anthropogenic influences (Levin 1970; MacArthur 1972; Morain 1984; Lacy
1987; Hengeveld 1990; Saunders et al. 1991; Hoffmann and Blows 1994;
Furlow and Armijo-Prewitt 1995; Garcia-Ramos and Kirkpatrick 1997).
The available information regarding the past distribution and
isolation of the Columbia Basin pygmy rabbit demonstrates that this
population segment is likely experiencing increased directional
selection due to marginal and varied habitats at the periphery of the
taxon's range. In addition, this population segment is exhibiting
genetic

[[Page 10398]]

consequences of long-term isolation from other population segments and
is responding, and will continue to respond, to the different
anthropogenic influences in the region.
Based on the above information, we conclude that the loss of the
Columbia Basin pygmy rabbit would represent a significant gap in the
range of the taxon, due to the loss of a conspicuous peripheral and
isolated extension of its current and historic range.

Conclusion of DPS Review

Based on the available information described above, we find that
the Columbia Basin pygmy rabbit is discrete from, and significant to,
the remainder of the taxon, and thus constitutes a DPS. The
discreteness of this population segment is demonstrated by its
physical, genetic, and ecological isolation from the remainder of the
taxon. The significance of this population segment is demonstrated by:
(1) Its genetic characteristics, which differ markedly from other
population segments; (2) its long-term persistence in the unique
ecological setting of the Columbia Basin; and (3) the significant gap
in the current and historic range of the taxon that the loss of this
population segment would represent. As required by our DPS policy, we
have determined that the bounds of this DPS are conterminous with the
historic distribution of the pygmy rabbit within the Columbia Basin
ecosystem (Figure 2).

Summary of Comments and Recommendations

In our November 30, 2001, proposed rule (66 FR 59769) and
associated notifications, we requested that all interested parties
submit comments, data, or other information that might contribute to
development of a final listing decision. The comment period for the
proposed rule was originally open from November 30, 2001, through
January 29, 2002. During this period, we received a number of requests
to extend the comment period and five requests to hold a public hearing
to address the proposed rule. On February 7, 2002, we extended the
comment period for the proposed rule through February 28, 2002. In
addition, after coordinating meeting details with the requesters, on
February 12, 2002, we held a public meeting in East Wenatchee,
Washington, to present the information we had available on the Columbia
Basin pygmy rabbit, to receive input, and to discuss the proposed rule
with any interested parties. On July 17, 2002, we extended the comment
period for the proposed rule through August 1, 2002.
On November 30, 2001, February 7, 2002, and July 17, 2002, we
contacted appropriate Federal, State, tribal, and local resource
agencies and governmental offices, scientific organizations,
agricultural organizations, outdoor user groups, environmental groups,
and other interested parties and requested that they comment on the
proposed rule. We established several methods for interested parties to
provide comments and other materials, including verbally or in writing
at the public meeting, by letter, facsimile, or, during the original
and final open comment periods, by electronic mail. Notices of the
extended comment period and public meeting announcement were also
published in local newspapers on February 7, 2002, including the
Wenatchee World, Columbia Basin Herald, and Spokesman Review.
We received a total of 34 letters, facsimiles, comment cards, and
electronic mailings from the public with comments and/or questions
concerning the proposed rule on the Columbia Basin pygmy rabbit during
the three comment periods. We also received 2 letters from the same
individual. Of the comments received, 9 were in support of the listing
action, 6 were opposed to the listing, and 19 were neutral.
We revised and updated the information contained in this final rule
to reflect the additional information we received during the open
comment period for the proposed rule. We address substantive comments
concerning various aspects of the proposed rule, below. General topics
are categorized and comments of a similar nature under each topic are
grouped together below, along with our response to each.

Impact of Listing Action

Issue 1: We received a number of requests to explain more fully
what the potential effects of listing the Columbia Basin pygmy rabbit
would be on private lands, or private management actions on public
lands, throughout the population's historic distribution.
Our Response: Once a species becomes listed, either through our
emergency or normal listing process, section 9 of the Act sets forth a
series of general prohibitions that apply to that species. Of primary
concern for Columbia Basin pygmy rabbits, the prohibitions make it
illegal for any person subject to the jurisdiction of the United States
to ``take'' them. The definition of ``take'' under the Act includes
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect,
or attempt to engage in any such conduct. ``Harm'' is further defined
to include significant habitat modification or degradation that results
in death or injury to the listed wildlife by significantly impairing
behavioral patterns such as breeding, feeding, or sheltering.
``Harass'' is further defined to include actions that create the
likelihood of injury to listed wildlife by annoying it to such an
extent as to significantly disrupt normal behavior patterns which
include, but are not limited to, breeding, feeding, or sheltering.
Other general prohibitions make it illegal to import or export listed
wildlife or its parts or products, transport it in interstate or
foreign commerce in the course of commercial activity, or sell it or
offer it for sale in interstate or foreign commerce. Section 11 of the
Act describes the civil and criminal penalties that may be imposed on
any individual or organization that violates these prohibitions.
Section 10 of the Act provides a number of exceptions to the
prohibitions against prescribed in section 9. In other words,
activities that could result in take of the Columbia Basin pygmy rabbit
may be permitted by the Service if certain conditions are met. Under
section 10(a)(1)(A), we may permit activities otherwise prohibited by
section 9 if they are conducted for scientific purposes or to enhance
the propagation or survival of the Columbia Basin pygmy rabbit
(recovery permits). Under section 10(a)(1)(B), we may permit activities
otherwise prohibited by section 9 if the resulting take is incidental
to, and not the purpose of, the otherwise lawful activities (incidental
take permits). In order for us to issue an incidental take permit, an
applicant must submit an HCP that specifies: (1) The impact that will
likely result from such taking; (2) what steps will be taken to
minimize and mitigate such impacts, and the funding that will be
available to implement such steps; (3) what alternative actions to such
taking were considered and the reasons why such alternatives are not
used; and (4) other such measures that the Secretary of Interior
(Secretary) may require.
With regard to non-Federal property, if pygmy rabbits are not
present on the property, the Act's taking prohibition would not apply
there. Where non-Federal property is occupied by the Columbia Basin
pygmy rabbit, if management activity would not result in take, section
9 would also not apply. Even if non-Federal property is occupied by the
pygmy rabbit and management activities are likely to result in take, an
incidental take permit may still be available under section

[[Page 10399]]

10(a). Service and technical assistance will be available to
landowner(s) and/or operator(s) to help them avoid, minimize, or
mitigate any adverse impacts to the Columbia Basin pygmy rabbit.
Proposed activities authorized, funded, or carried out by a Federal
agency are subject to the consultation requirements Congress prescribed
in section 7 of the Act. Circumstances under which a proposed Federal
action or Federal nexus may affect the Columbia Basin pygmy rabbit will
be handled through consultation with the involved Federal agency and
applicant(s), as necessary, on a case-by-case basis, in accordance with
section 7 of the Act.
Issue 2: Various commenters expressed concern regarding
circumstances where landowners or operators of currently unoccupied
habitat are adjacent to occupied sites or areas potentially used for
reintroduction efforts, and what the consequences of future occupation
of these lands by the Columbia Basin pygmy rabbit may be.
Our Response: Authorization of take of rabbits incidental to
otherwise lawful activities may be available through development of
HCPs and issuance of incidental take permits in accordance with section
10(a) of the Act. In addition, landowners or operators may enter into
Safe Harbor Agreements that provide regulatory assurances to landowners
who manage their properties in such a way as to attract Columbia Basin
pygmy rabbits. As with currently occupied habitats, we will continue to
work cooperatively with, and provide technical assistance to,
landowners and operators to help them avoid, minimize, or mitigate any
potential future impacts to the Columbia Basin pygmy rabbit.

Critical Habitat

Issue 3: We received a number of comments concerning critical
habitat and how it relates to the emergency, proposed, and final rules
for the Columbia Basin pygmy rabbit.
Our Response: Neither our emergency, proposed, nor this final rule
designates critical habitat for the Columbia Basin pygmy rabbit. We
find that designation of critical habitat for the Columbia Basin pygmy
rabbit is not determinable at this time because information sufficient
to perform the required analyses of the impacts of the designation is
lacking (see Critical Habitat, below). We will continue to protect the
Columbia Basin pygmy rabbit and its habitat through section 7
consultations on Federal actions that may affect this population
segment, through the recovery process, through HCPs under section 10,
and through enforcement of take prohibitions under section 9 of the
Act.

National Environmental Policy Act (NEPA)

Issue 4: Several comments suggested the need for NEPA analyses, or
requested an explanation of why the NEPA process is not necessary, for
this final rule.
Our Response: We have determined that environmental assessments
(EAs) and environmental impact statements (EISs) developed pursuant to
NEPA do not need to be prepared in connection with regulations adopted
pursuant to the listing process under section 4(a) of the Act. The
Federal Council on Environmental Quality has determined, based on court
decisions, that listing actions under the Act are exempt from NEPA
review as a matter of law. We published a notice that further describes
our reasons for this determination in the Federal Register on October
25, 1983 (48 FR 49244).

Determination of Status of Columbia Basin and Other Pygmy Rabbit
Populations

Issue 5: We received a number of comments and questions concerning
how new information about the presence of additional subpopulations of
Columbia Basin pygmy rabbits may affect the status of the population,
the listing process, or this final rule.
Our Response: If significant new information becomes available
regarding additional subpopulations of Columbia Basin pygmy rabbits,
the new information could affect the priority of the management actions
identified for the captive propagation program and/or the ongoing
conservation actions being implemented for the remaining wild portion
of the population. The information we currently have available
indicates that it is unlikely that a sufficiently large, well
distributed ``unknown'' subpopulation may still occur that would
completely remove the need for protection of the species under the Act.
No additional information on locations of other subpopulations of
Columbia Basin pygmy rabbits was provided during the comment period.
Issue 6: We received a number of comments and questions concerning
how we determined the historic range of the pygmy rabbit, what the
abundance and status of various pygmy rabbit populations are, how
abundance estimates are determined, and the causes behind the recent
declines in the Columbia Basin pygmy rabbit.
Our Response: Information concerning the current, historic, and
prehistoric distribution of the Columbia Basin pygmy rabbit population
primarily comes from scientific literature, including peer-reviewed
journal articles, doctoral dissertations, master's theses, and/or State
natural resource agency reports and data. These sources are referenced
within the body of the rule, as appropriate. As discussed above (see
Distribution and Status), there is very little information currently
available regarding the abundance of pygmy rabbits throughout the
majority of their current range. Due to the ongoing efforts of the WDFW
to monitor and study pygmy rabbits over the last several decades, there
is considerably more information available regarding the current
abundance and distribution of the Columbia Basin population.
With regard to the past distribution and abundance of the Columbia
Basin pygmy rabbit, we assume that this population was more broadly
distributed and had a greater abundance of individuals within this
region historically. This assumption is based on the available
information addressing other pygmy rabbit populations, the population
dynamics of other Leporid species, and the general concepts and theory
of minimum viable populations. Given this available information, it is
unlikely that the Columbia Basin pygmy rabbit would have persisted
within this region for thousands of years with such a limited
distribution and at such minimum abundance levels. Nevertheless, the
available information only indicates the occurrence of several small
subpopulations in portions of five counties in central Washington since
the early 1900s. As such, the historic distribution and abundance of
the Columbia Basin pygmy rabbit that we report in this final rule
represent minimum estimates.
Obtaining precise estimates of wildlife abundance levels is often
very difficult. This is because: (1) The abundance of many wildlife
populations naturally fluctuates between years, and even between
seasons within years; (2) individuals are often difficult to observe;
(3) individuals often move between observations or there is an unknown
amount of mixing of individuals between observed areas; and (4)
observation techniques can affect the behavior of the individuals being
observed. Because of these limitations, managers often use a
``surrogate'', or index, to estimate a probable range of values
concerning wildlife abundance levels. With regard to pygmy rabbits, the
occurrence of their burrows and estimates of the burrows' ages and/or

[[Page 10400]]

activity levels (e.g., active, fresh, old, very old) are typically used
to monitor the status of a given population.
We understand that there are limitations in the available
information addressing the current and historic distribution and
abundance of the Columbia Basin and other pygmy rabbit populations.
However, the available information provides several important
parameters with regard to our listing determination, including: (1) The
distribution of the Columbia Basin pygmy rabbit has declined
dramatically from historic levels; (2) five of six known subpopulations
remaining in the mid-1990s have been extirpated; and (3) the abundance
of active burrows and, by extension, individual pygmy rabbits within
the last known occupied site, has declined dramatically over this same
recent time period. The estimates of individual Columbia Basin pygmy
rabbits known to remain in the wild, as presented in the proposed rule
and this final rule, represent maximum estimates and are based on the
best professional judgement of recognized experts.
As discussed below (see Summary of Factors Affecting the DPS),
several factors and their interactions are implicated in the historic
and recent declines of the Columbia Basin pygmy rabbit, including
habitat conversion and fragmentation, wildfire, predation, livestock
grazing, and disease. However, addressing the extremely small size and
limited distribution of this population is our primary concern for the
immediate conservation and protection measures for the Columbia Basin
pygmy rabbit. Measures to address the more general and/or long-term
threat factors will be identified as our recovery program is further
developed (see Captive Propagation and Recovery, below).

Livestock Grazing

Issue 7: We received a large number of comments concerning our
interpretation of the available information with regard to livestock
grazing and the potential effects it has on the Columbia Basin pygmy
rabbit. Some comments suggested that we were overly critical concerning
the negative effects of livestock grazing and did not adequately
address its potential benefits to the Columbia Basin pygmy rabbit. In
contrast, other comments suggested that we down-played the negative
effects of livestock grazing and implied that regulatory restrictions
should be placed on grazing activities in all areas currently or
potentially used by the Columbia Basin pygmy rabbit.
Our Response: As with the available information addressing
distribution and abundance (see above response), we understand that
there are limitations in the available information concerning the
effects of livestock grazing on the Columbia Basin pygmy rabbit.
However, with regard to adverse effects of livestock grazing, the one
study available found several important characteristics--(1) Male
Columbia Basin pygmy rabbits tend to make longer movements and require
larger home ranges during the breeding season in recently grazed areas
as opposed to areas that have not been grazed for several decades (Gahr
1993); (2) there tend to be fewer burrows available to, or constructed
by, Columbia Basin pygmy rabbits in recently grazed areas (L. Shipley,
pers. comm. 2001); (3) Columbia Basin pygmy rabbits occupying recently
grazed sites tend to have a greater proportion of their summer through
winter diets composed of sagebrush as opposed to grasses and forbs (L.
Shipley, pers. comm. 2001); (4) the nutritional quality of the
available grasses and shrubs tends to be less from fall through spring
in recently grazed areas (L. Shipley, pers. comm. 2002); and (5)
livestock can directly damage pygmy rabbit burrow systems through
trampling (Rauscher 1997; N. Siegel, WSU, pers. comm. 2001; M. Hallet,
pers. comm. 2002).
Other, more general, information also suggests the adverse effects
on the Columbia Basin pygmy rabbit associated with livestock management
activities. These other potential impacts include sagebrush control
efforts, effects on predator distribution and density through the use
of artificial watering or supplemental nutrition and feeding sources
for livestock, structural damage to dense stands of sagebrush by
livestock, removal of current herbaceous growth or residual cover of
native grasses and forbs by livestock for forage, and increases in the
density or distribution of various invasive weed species.
The available information described above suggests there is a
potential for take of the Columbia Basin pygmy rabbit to occur, as
defined by the Act, in association with some livestock grazing
operations. These potential impacts may be in the form of direct take
(e.g., injury or mortality due to trampling of occupied burrows or
sagebrush eradication efforts), or in the form of indirect take (e.g.,
harm or harassment due to habitat modification or degradation that
significantly impairs normal behavioral patterns associated with the
Columbia Basin pygmy rabbit's breeding, feeding, or sheltering
activities). Due to the extremely low number and restricted
distribution of Columbia Basin pygmy rabbits, additional mortality
resulting from livestock grazing practices currently represents a
potentially significant threat to their continued existence.
Pygmy rabbits have coexisted with various levels of livestock
grazing activities throughout their historic range for many years.
Currently, it is unclear if light or moderate levels of livestock
grazing may be compatible with, or even beneficial to, long-term
conservation efforts for otherwise secure populations of pygmy rabbits.
The effects of livestock grazing that have been identified to
potentially benefit the Columbia Basin pygmy rabbit include: (1)
Increasing the vigor of grass species through mechanical disturbance by
livestock; (2) increasing the abundance of sagebrush cover through
altered competitive advantage by removal or reduction of associated
shrub steppe vegetation; (3) increasing the biological diversity of
wildlife and vegetation species; and (4) creating more open habitats
that provide improved security through increased visual line-of-sight
for pygmy rabbits.
It is our intention, once the captive propagation program becomes
better established and appropriate protection measures are in place to
ensure the security of the remaining wild portion of the population, to
reinitiate or support future studies to address the potential effects
of livestock grazing (both positive and negative) on the Columbia Basin
and/or other pygmy rabbit populations. These efforts should attempt to
include the evaluation of pygmy rabbits in areas subject to various
intensities and timing of livestock grazing, areas where livestock
grazing has been discontinued for known periods of time, sites that
have historically remained free of livestock grazing, and areas of
varying soils and initial ecosystem conditions. These evaluations will
help fill the current information gaps regarding the effects of
livestock grazing on the Columbia Basin pygmy rabbit and provide a
basis for analyzing grazing activities under sections 7 and 10(a) of
the Act.
The specific conditions under which livestock grazing activities
will be addressed in habitats occupied by the Columbia Basin pygmy
rabbit will be further defined as our recovery program is developed
(see Captive Propagation and Recovery, below).
Issue 8: We received several comments concerning the effects of
current and historic grazing by native herbivores, such as white-tailed
deer (Odocoileus virginianus), mule deer (O. hemionus), elk (Cervus
elaphus), and American bison (Bison bison), on the Columbia Basin pygmy
rabbit. In

[[Page 10401]]

addition, some comments expressed concern regarding why this form of
grazing is treated differently than the effects of livestock grazing
and what management actions we may undertake to address these grazing
effects.
Our Response: The available information suggests that the shrub
steppe habitats of the Columbia Basin evolved in the absence of
substantial grazing pressure from large native herbivores since the
latest period of glaciation, roughly 12,000 years BP (Mack and Thompson
1982; Daubenmire 1988; Lyman and Wolverton 2002). Deer and elk are also
primarily browsing, as opposed to grazing, animals. In addition, the
ecological effects of grazing by various livestock (e.g., cattle,
horses, sheep) are not typically considered to be comparable to those
of native herbivores (Lyman and Wolverton 2002). In relatively large,
well distributed pygmy rabbit populations, we would not expect grazing
by native herbivores to represent a significant threat to their long-
term security.
Historically, central Washington supported extensive livestock
grazing operations throughout the shrub steppe habitats potentially
used by the Columbia Basin pygmy rabbit (Daubenmire 1988; WDFW 1995a).
Excessive livestock grazing pressure can have significant impacts on
the shrub steppe ecosystems found throughout the historic range of the
Columbia Basin pygmy rabbit (Fleischner 1994), and these impacts may be
exacerbated in the Columbia Basin (see above response). Contemporary
grazing levels are much reduced from historic levels; however, large
livestock operations continue within the shrub steppe habitats of the
Columbia Basin to the present. From 1986 to 1993, an average of roughly
280,000 cattle were being supported in the five central Washington
counties that historically harbored the Columbia Basin pygmy rabbit
(WDFW 1995b).
The available information suggests that the historic and seasonal
use patterns and concentrations of native herbivores and their
associated grazing effects within the Columbia Basin are considerably
different from those of livestock operations. In addition, the
available information does not indicate that natural levels of grazing
by native herbivores, or their grazing patterns as they may have been
altered by contemporary human activities, currently represent a risk to
the Columbia Basin pygmy rabbit.

Predation and Disease

Issue 9: We received a number of questions and comments concerning
our interpretation of the available information addressing predation
and disease and the potential effects they have on the Columbia Basin
pygmy rabbit. In addition, several commenters raised issues and
questions concerning our potential future management actions to address
these threat factors.
Our Response: Information concerning the potential current and
historic impacts from predation and disease on the Columbia Basin and
other pygmy rabbit populations primarily comes from scientific
literature, including peer-reviewed journal articles, doctoral
dissertations, master's theses, and/or State natural resource agency
reports and data. In addition, the past and current management efforts
that the WDFW has undertaken to address these threat factors are
presented in the preamble to the rule. The details of planned future
Federal management actions to address these threat factors will be
further defined as our recovery program is developed (see Captive
Propagation and Recovery, below).
The available information suggests that in relatively large, well
distributed pygmy rabbit populations, predation and disease are not
likely to represent a significant threat to their long-term security.
However, due to the extremely small size and localized occurrence of
the Columbia Basin pygmy rabbit, the available information suggests
that human-altered predation and/or disease patterns, and even natural
levels of predation and disease, may significantly impair conservation
efforts for the remaining wild and captive portions of this population
segment.

Captive Propagation and Recovery

Issue 10: We received a number of comments regarding the captive
propagation program established by the WDFW and our potential
management activities to address recovery of the Columbia Basin pygmy
rabbit. These comments addressed a wide variety of issues and
questions, including the health and breeding success of captive pygmy
rabbits, impacts to pygmy rabbit populations associated with research
or conservation efforts, other potential differences between the
various pygmy rabbit populations (e.g., physiological, behavioral,
morphological), the survival characteristics of captive bred versus
wild individuals, habitat enhancement or restoration standards for
mitigation efforts, Federal recovery policy for down-listing or
delisting the Columbia Basin pygmy rabbit, and reintroduction protocols
and potential release sites for the recovery program.
Our Response: The available information we have regarding the
biology and ecology of the Columbia Basin pygmy rabbit, impacts to the
populations, and mitigation efforts is referenced within the preamble
to this final rule.
The WDFW's captive propagation program affords an opportunity to
maintain a sufficient number of Columbia Basin pygmy rabbits in
captivity until appropriate recovery measures are developed and
implemented to ensure the population's survival in the wild.
Ultimately, the goal of the captive propagation effort is to release
captive-bred Columbia Basin pygmy rabbits back into suitable habitats
within their historic range so that viable subpopulations can become
re-established. However, the number and size of the wild subpopulations
necessary for recovery pursuant to the Act have not yet been
determined.
Listing the Columbia Basin pygmy rabbit as endangered will provide
for the development of a recovery plan. Such a plan would bring
together Federal, State, and local efforts for the conservation of the
species to form a recovery planning team. During the Federal recovery
planning process, a team develops a plan to establish a framework for
agencies to coordinate recovery efforts and cooperate with each other
in conservation efforts. A recovery plan will set recovery objectives
and priorities, such as habitat enhancement and/or restoration efforts,
reintroduction protocols, and potential release sites, assign
responsibilities to achieve those goals and objectives, and estimate
costs of various tasks necessary to achieve conservation and survival
of this species. A recovery plan will also identify goals and
objectives that need to be met in order to downlist or delist the
species. The following comments may provide further clarification.
Issue 11: Concern was expressed regarding possible mixing of
Columbia Basin pygmy rabbits being held in captivity with those from
the Idaho population being used for the husbandry studies.
Our Response: There have been no instances of intermixing between
the two source populations of captive pygmy rabbits. The WDFW, WSU, and
Oregon Zoo implemented a number of appropriate measures to avoid the
possibility of commingling of Columbia Basin and other pygmy rabbits
being held in captivity. These, and additional measures, were also made
conditions of the December 18, 2001, recovery permit we issued for the
captive propagation program (see Previous Federal Action, above). These
measures include

[[Page 10402]]

maintaining secure and appropriately marked cages, providing discrete
holding areas or separation fencing between cages, and developing and
adhering to strict transport and handling procedures to minimize any
potential for direct contact between the captive pygmy rabbit
populations. Furthermore, notification of any instances of commingling
of Columbia Basin and other pygmy rabbits will be provided to the
Service within 3 working days of the incident, and will include a
description of the circumstances under which the commingling occurred
and corrective measures to address that and any potential future
incidents.
Issue 12: Concerns were expressed regarding the potential impacts
to the Columbia Basin pygmy rabbit from various ongoing research and
conservation activities, and our potential actions to address these
concerns.
Our Response: We recognize that certain research and conservation
activities have the potential to directly and indirectly affect the
Columbia Basin pygmy rabbit. The available information addressing the
circumstances under which these impacts may be occurring, or have the
potential to occur in the future, are referenced in the preamble to the
rule, as appropriate.
Research and management activities for the Columbia Basin pygmy
rabbit will be regulated under the section 10 permitting process. The
WDFW has closely coordinated its management activities to conserve the
Columbia Basin pygmy rabbit with us. In addition, in cooperation with
the WDFW, WSU, and the Oregon Zoo, we have developed a number of
appropriate measures to avoid or reduce the risk of take of the
Columbia Basin pygmy rabbit. These measures were made conditions of the
December 18, 2001, recovery permit and its revisions that we issued for
the captive propagation program and ongoing management activities at
the Sagebrush Flat site (see Previous Federal Action, above). We will
continue to work cooperatively with interested parties on activities
conducted for scientific purposes or to enhance the propagation or
survival of the Columbia Basin pygmy rabbit under section 10 of the
Act.
Issue 13: Concern was expressed regarding our use and incorporation
of information from other pygmy rabbit populations in the background
biological discussions and other sections of the emergency and proposed
listing rules. In addition, questions were raised regarding whether
this information is appropriate or applicable to the Columbia Basin
pygmy rabbit.
Our Response: Wildlife investigations often use information
concerning closely related populations, subspecies, species, and even
genera when making biological inferences about a given population. It
is important that any inferences made from these comparisons recognize
the potential differences between the populations (or higher taxa), and
that any conclusions are limited to what the available information
supports. However, understanding the life history of a closely related
population (or higher taxa) is often beneficial, and at times even
essential, to a more complete understanding of the population of
interest. While the Columbia Basin pygmy rabbit is distinct from other
pygmy rabbit populations, we recognize that they share many
similarities in their life history characteristics. Recognizing these
similarities is critical to our understanding of the Columbia Basin
population.
Service policy concerning the consideration of a DPS for listing
under the Act requires us to evaluate the discreteness and significance
of a given population in comparison to the remainder of its taxon.
Considering all of the available information on a species helps
determine if significant differences may exist between its discrete
populations.
Issue 14: Several commenters expressed concern regarding the area
affected by the listing, and the potential extent of reintroduction
efforts that may be undertaken to address recovery of the Columbia
Basin pygmy rabbit.
Our Response: This final rule lists as endangered the pygmy rabbit
in the Columbia Basin of central Washington (Figure 2). Appropriate
sites within this region that could potentially be used for
reintroduction efforts will be identified as our recovery program is
further developed. Pygmy rabbit populations in other States throughout
the species' historic range are not included in this listing action,
nor will any areas outside of the historic range of the Columbia Basin
pygmy rabbit population be considered for any recovery actions.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR
34270), we sought independent expert review by seven specialists during
the comment period on the proposal to list the Columbia Basin pygmy
rabbit. The purpose of these reviews is to ensure that listing
decisions are based on scientifically sound data, assumptions, and
analyses. The seven independent reviewers would provide expertise on
pygmy rabbit biology, population genetics, Columbia Basin shrub steppe
ecology and rangeland management. Six of these reviewers submitted
comments on the proposed listing, and one did not respond. Experts that
provided comments include: Two pygmy rabbit researchers, one from
Arizona State University and one from Idaho State University; a
research wildlife biologist from the Biological Resources Division of
the U.S. Geological Survey; a population geneticist from the University
of Denver; a research biologist from the WDFW; and a senior scientist
from NMFS. All of the experts concurred that the proposed listing
action was justified and appropriate. We have incorporated their
comments into this final determination. We address substantive comments
raised by the peer reviewers concerning various aspects of the
emergency and proposed rules below, and issues of a similar nature are
grouped together, along with our response to each.
Issue 1: The role of habitat loss and fragmentation in the long-
term decline of the Columbia Basin pygmy rabbit should be further
emphasized in the final rule. In addition, measures to address habitat
protection and restoration, including identifying specific habitat
parameters and the control of exotic and/or invasive plant species,
should be further addressed in the final rule.
Our Response: We recognize that habitat loss and fragmentation have
likely played a primary role in the long-term decline of the Columbia
Basin pygmy rabbit. In addition, we recognize that habitat protection
and restoration will play a central role in future conservation efforts
for this population. We will review and further develop specific
habitat parameters and criteria, in cooperation with interested
parties, at such time as we undertake future Federal conservation or
recovery initiatives for the Columbia Basin pygmy rabbit.
Issue 2: The biophysical role of habitat (e.g., thermal cover
provided by native bunch grasses), and the potential impacts to this
role from livestock grazing, should be further emphasized in the final
rule.
Our Response: We recognize the potential for habitat to play an
important biophysical role for the Columbia Basin pygmy rabbit, and
that livestock grazing may affect these habitat parameters. However,
there is very little additional information available regarding this
potential relationship and, until it becomes available, clarification
of this issue needs further investigation.

[[Page 10403]]

Issue 3: An expert comment was made that our use of the terms
``prehistoric'', ``historic'', and ``recent'' be further clarified in
the final rule.
Our Response: In general, use of the identified terms in the final
rule is as follows: prehistoric refers to information relating to
conditions greater than roughly 200 years BP (i.e., prior to extensive
European settlement of the western United States), and recorded largely
after the fact (e.g., paleontological records); historic refers to
information relating from roughly 200 to 50 years BP, and recorded
primarily in the written tradition and at the time of occurrence; and
recent refers to recorded information from the previous several
decades. We recognize that the use of these terms is not absolute and
some overlap between them is inevitable. As possible, we have added
clarity to the use of these terms in the final rule, including the use
of ``past'' when referring to all of these time periods combined, and
``current'' when referring to the contemporary time frame (i.e.,
roughly the previous decade).
Issue 4: It was emphasized that plague is exotic to North American
ecosystems and that native species are likely to be poorly adapted to
this potential threat factor. In addition, epizootics (an outbreak of
disease) in wild animals are often very difficult to detect, and
disease can not easily be ruled out as a significant possible risk
factor. Finally, the potential occurrence of plague in badgers from
Idaho was identified, and it was suggested that disease may be
implicated in other mammal declines in the Columbia Basin (e.g., jack
rabbits).
Our Response: We concur with these clarifications and continue to
consider disease a significant potential threat to the Columbia Basin
pygmy rabbit.
Issue 5: It was emphasized that a successful captive propagation
program should be considered extremely important for the conservation
and management of the Columbia Basin pygmy rabbit's unique genetic
profile.
Our Response: We concur with this clarification. We will continue
to support the development of an effective captive propagation program
for the Columbia Basin pygmy rabbit in order to release the species
into suitable habitats within their historic range so that viable
subpopulations can become established and self-sustained in the wild.
Issue 6: It was suggested that the reasoning behind identifying
threat factors B, C, and D for the Columbia Basin pygmy rabbit (see
below) was somewhat circular; that is, if the population was not
endangered from other, long-term causal factors (A and E), these other
factors (B, C, D) would not represent current threats to the
population. In addition, it was presumed that protection for the
Columbia Basin pygmy rabbit under the Act could have been considered
sooner to lessen the potential influences and complications of any such
``secondary'' threat factors.
Our Response: We are required to fully consider all five threat
factors identified by the Act, regardless of whether they may be
proximate or ultimate causal factors in the status of a given taxon. In
addition, with regard to potential conservation and recovery efforts,
identifying and controlling these more immediate threat factors is
often critical to the long term security of a taxon, and consideration
of longer-term conservation measures needed to ultimately achieve
recovery of the taxon is often of a less urgent nature.
It is appropriate to propose a species for listing at the time when
sufficient information is available. For the Columbia Basin pygmy
rabbit, when we had sufficient information we took the appropriate
action.
Issue 7: Concern was expressed regarding whether the emergency
listing process was needed, whether it was as thorough as the Service's
normal listing process, and whether there are significant differences
between the two listing pathways.
Our Response: Emergency listing is appropriate when there are
significant and imminent risks to the well-being of a taxon. We
determined that such risks existed for the Columbia Basin pygmy rabbit
primarily due to the population's extremely small size, ongoing loss
and significant decline of its identified subpopulations, genetic
indicators suggesting the likelihood of inbreeding depression within
the population, and the unproven nature of the proposed captive
breeding and subsequent reintroduction efforts for the species.
The principal differences between emergency and normal listing
processes are that, under emergency listing, the Secretary may make the
protective measures of the Act immediately available to the species,
upon a finding of a significant risk posed to its well-being, but the
listing is in force for only 240 days, and there are certain exemptions
regarding the requirements of public notification and input. The 240-
day expiration of an emergency listing is the primary reason we attempt
to concurrently, or shortly thereafter, publish a proposed rule to list
the species, as was done for the Columbia Basin pygmy rabbit, and
finalize the listing as soon as possible.
Issue 8: The suggestion was made that the status of the pygmy
rabbit as a monotypic genus could be a consideration regarding the
potential significance of its discrete populations.
Our Response: Currently, we do not consider the status of taxa
above the species level in our DPS analyses, nor is it specifically
identified in the joint Service/NMFS policy addressing the recognition
of DPS. However, we do consider taxonomic delineations above the
species level in our priority ranking system to address the status of
proposed and candidate species for potential listing actions under the
Act.
Issue 9: It was emphasized that, during our DPS analyses, careful
consideration should be given to the appropriateness of using the same
database to address both the discreteness and significance of a
population in comparison to the remainder of its taxon, especially with
regard to the available genetic data.
Our Response: We concur with this clarification and recognize that,
in various instances, it may be appropriate to consider the same
database to address both DPS criteria. As suggested by the genetic
information for the Columbia Basin pygmy rabbit presented above, we
recognize that it is important to note whether the available data can
be used primarily to address the isolation (i.e., discreteness) of a
taxon's populations, the potential differentiation of a taxon's
discrete populations from one another (i.e., significance), or as the
data may relate to both criteria. In addition to the genetic
information, we recognize that other sources of data, including
behavioral, physiological, morphological, genetic, and ecological, may
also apply to a taxon's discreteness and significance simultaneously.
We will continue to address these conservation issues with regard to
the pygmy rabbit throughout the species historic range as any
additional information may become available.

Additional Information and Evaluations

Comments and additional data received during the comment periods,
as well as further analysis on our part, raised several issues
addressed in this final rule. We address these issues more specifically
below.
Additional information became available as follows:
(1) The common raven is a significant potential predator of the
Columbia Basin pygmy rabbit, and we also discuss WDFW's past and
ongoing management efforts to address this threat factor.
(2) Vandalism has the potential to result in direct or indirect
take of

[[Page 10404]]

Columbia Basin pygmy rabbits held in captivity, and site security as an
important management consideration to address this potential threat.
See Summary of Factors Affecting the DPS and Available Conservation
Measures sections.
(3) Washington State legislation (HB 1309) provides measures with
regard to conservation of the Columbia Basin pygmy rabbit. See Summary
of Factors Affecting the DPS section.
(4) Regarding the status and results of ongoing conservation and
research efforts for the Columbia Basin pygmy rabbit, there is updated
information concerning the WDFW's captive propagation program and
research addressing the effects of livestock grazing. See Current
Management Actions, Distinct Population Segment Review, and Summary of
Factors Affecting the DPS sections.
(5) There is potential for a significant gap in the range of the
pygmy rabbit should the Columbia Basin population segment become
extirpated. This assessment helps further clarify the concept of
significance as it is defined in the Act and our policy addressing the
recognition of DPS. See Distinct Population Segment Review section.
(6) Control of exotic plant species is a habitat protection and
restoration measure for consideration during management actions and
scientific investigations. See Available Conservation Measures section.

Summary of Factors Affecting the DPS

After a thorough review and consideration of all available
information, we have determined that the Columbia Basin pygmy rabbit
warrants classification as an endangered DPS pursuant to the Act. We
followed procedures found in section 4 of the Act and regulations
promulgated to implement the listing provisions of the Act (50 CFR part
424). We may determine a DPS to be endangered or threatened due to one
or more of the five factors described in section 4(a)(1). These factors
and their application to the Columbia Basin pygmy rabbit (Brachylagus
idahoensis) follow.
A. Present or threatened destruction, modification, or curtailment
of habitat or range. During the first half of the 1900s, large portions
of more mesic (moist) shrub steppe habitats on deeper soils within the
Columbia Basin were converted for dryland crop production (Daubenmire
1988; Franklin and Dyrness 1988; WDFW 1995a). During the mid-1900s,
large-scale irrigation projects led to further conversion of more xeric
(dry) shrub steppe habitats on deeper soils within the Columbia Basin
for irrigated agriculture (WDFW 1995a; Franklin and Dyrness 1988; U.S.
Department of Interior (USDI) 1998). In addition, urban and rural
developments (e.g., housing, industrial facilities, transportation
corridors) in central Washington permanently remove native shrub steppe
habitats. In 1994, it was estimated that approximately 60 percent of
the original shrub steppe habitat in Washington had been converted for
human uses (Dobler 1994), and shrub steppe habitats within the Columbia
Basin continue to be converted for a variety of human uses. The
Columbia Basin pygmy rabbit can not occupy these converted sites. Due
to the small home ranges and relatively restricted movements of pygmy
rabbits, conversion of native habitats in the Columbia Basin also
removes or severely limits their dispersal corridors between suitable
habitats.
A number of other, often interacting, influences affect the
remaining native shrub steppe habitat within the Columbia Basin,
including altered fire frequencies, invasion by non-native species,
recreational activities, and livestock grazing. Sagebrush is easily
killed by fire and, when it occurs at increased frequencies, it can
remove sagebrush from the vegetation assemblage (Daubenmire 1988). In
the absence of a sufficient seed source, sagebrush cannot readily
reinvade sites where it has been removed, and it may be many years
before it can become reestablished (WDFW 1995a). Due to a variety of
factors (see below), the fire frequency has increased over portions of
the remaining shrub steppe habitat within the Columbia Basin. Because
of their close association with tall, dense stands of sagebrush, pygmy
rabbits are precluded from occupying frequently burned areas.
Various non-native, invasive plant species, such as cheatgrass
(Bromus tectorum) and knapweed (Centauria spp.), have become well
established throughout the Columbia Basin (Daubenmire 1988; Franklin
and Dyrness 1988). Areas with dense cover of cheatgrass are apparently
avoided by pygmy rabbits in Oregon (Weiss and Verts 1984), and these
newly established plant communities often provide fine fuels that can
carry a fire. Combined with widespread unimproved road access and
informal recreational activities that provide multiple sources of
ignition, the establishment of non-native species increases the risk of
fire and further reduces the security of areas that could potentially
support the Columbia Basin pygmy rabbit (WDFW 1995a).
Fire was implicated in the loss of the only pygmy rabbit
subpopulation ever recorded in Benton County, Washington, in 1979 (WDFW
1995a), and was directly associated with the loss of one of the few
remaining subpopulations in Douglas County in 1999 (WDFW 2001b). The
WDFW has taken measures to reduce the risk of fire at the Sagebrush
Flat site (e.g., constructing firebreaks). However, unimproved road
access and informal recreational activities provide a continuing source
for ignition of uncontrolled fires in the area (WDFW 1995a). Due to the
extremely low number of Columbia Basin pygmy rabbits in the wild, their
restriction to one known site, and their reliance on relatively tall,
dense stands of sagebrush, natural and human-caused fire represents a
significant threat to this portion of the population.
Land managed for livestock grazing is often cleared of sagebrush to
increase the production of grasses and forbs as forage for cattle (WDFW
1995a; Rauscher 1997), although this management practice in the
Columbia Basin has declined from past levels (L. Hardesty, WSU, pers.
comm. 2002). Clearing areas of sagebrush cover removes habitat patches
potentially used by the Columbia Basin pygmy rabbit. In addition, it
can reduce the value of more marginal stands of sagebrush that may act
as dispersal corridors for pygmy rabbits, further fragmenting the
remaining suitable habitats. Much of the remaining shrub steppe habitat
in the Columbia Basin is managed for livestock grazing (WDFW 1995a; N.
Hedges, pers. comm. 2001).
Excessive livestock grazing removes current herbaceous growth and
residual cover of native grasses and forbs and can increase the density
of various non-native, invasive species and--over several years--young
sagebrush stands (Daubenmire 1988; WDFW 1995a). In some instances, this
disturbance may eventually result in the growth of tall, dense stands
of sagebrush (Daubenmire 1988), potentially improving the shrub forage
and cover conditions for pygmy rabbits. However, livestock grazing at
these levels potentially reduces the forage base and cover
characteristics of grasses and forbs for Columbia Basin pygmy rabbits
(Green and Flinders 1980b; Rauscher 1997). Excessive livestock grazing
may also cause structural damage to dense stands of older sagebrush.
This acts to open the canopies of these sites and potentially makes
them less suitable as cover for Columbia Basin pygmy rabbits (Gahr
1993; Rauscher 1997). Currently, it is unclear if light or moderate
levels of

[[Page 10405]]

livestock grazing may be compatible with pygmy rabbit conservation
efforts over the long-term.
There are several past and ongoing studies that have investigated
the effects of different livestock grazing strategies on Columbia Basin
pygmy rabbits and their habitat (Gahr 1993; WDFW 1995a; Sayler et al.
2001; L. Shipley, pers. comm. 2001). Gahr (1993) found that male pygmy
rabbits at the Sagebrush Flat site made longer movements during the
breeding season, resulting in larger home ranges, in recently grazed
areas as opposed to areas that had not been grazed for nearly 40 years.
In addition, relative to unit size, there are more pygmy rabbit burrows
in the ungrazed areas of Sagebrush Flat than the recently grazed areas
(L. Shipley, pers. comm. 2001). Further evaluation of the distribution
and availability of appropriate soils across the Sagebrush Flat site
will help clarify these results. Nevertheless, they suggest that
Columbia Basin pygmy rabbits may be more susceptible to predation in
areas used for livestock grazing due to longer movements away from
cover and fewer burrows available for escape.
Results of an ongoing study also indicate that Columbia Basin pygmy
rabbits occupying grazed sites tend to have a greater proportion of
their summer through winter diets composed of sagebrush as opposed to
grasses and forbs (L. Shipley, pers. comm. 2001). In addition, the
nutritional quality (e.g., less protein and greater fiber content) of
the available grasses and shrubs in recently grazed sites tends to be
less from fall through spring (L. Shipley, pers. comm. 2002). These
results provide support for the contention that livestock may compete
directly with pygmy rabbits for available forage during these periods
(Green and Flinders 1980b; Rauscher 1997). There is also evidence that
cattle can directly damage pygmy rabbit burrow systems through
trampling (Rauscher 1997; N. Siegel, WSU, pers. comm. 2001; M. Hallet,
pers. comm. 2002). These impacts may be especially critical during the
Columbia Basin pygmy rabbits' reproductive period.
Populations of pygmy rabbits have coexisted with various levels of
livestock grazing activities throughout their historic range for many
years (WDFW 1995a). However, due to the extremely low number and
restricted distribution of Columbia Basin pygmy rabbits, any additional
mortality or population stress associated with livestock grazing
practices represents a significant threat to the security of the wild
portion of this population segment.
Due to the combined influences described above, Washington's native
shrub steppe habitats, including those considered essential to the
long-term security of the Columbia Basin pygmy rabbit, are considered
among the least protected areas in the State (Cassidy 1997).
B. Over-utilization for commercial, recreational, scientific, or
educational purposes. Pygmy rabbits are often difficult to distinguish
from species of cottontail rabbits (Sylvilagus spp.) (Garber 1993; WDFW
1995a). Because of this, accidental shooting of Columbia Basin pygmy
rabbits may occur in association with hunting of other small game
species in Washington (WDFW 1979). Due to their extremely low numbers,
restricted distribution, and preference for dense habitats, combined
with relatively few small game hunters at the Sagebrush Flat site, the
risk from accidental shooting of Columbia Basin pygmy rabbits is
currently considered relatively low (WDFW 1995a; D. Hays, pers. comm.
2001). However, in such reduced populations, accidental shooting could
become a significant source of mortality if it is not carefully
controlled.
Investigations that require trapping, handling, and captivity of
pygmy rabbits can result in mortality from several causes, including
exposure (due to excessively high or low temperatures); direct injury
from entanglement in traps, trap predation, and intra-specific
fighting; and capture stress (Bailey 1936; Severaid 1950; Wilde 1978;
Gahr 1993; Rauscher 1997). Capture-related mortality rates (including
recaptures) reported for pygmy rabbits are roughly 3 percent (Gahr
1993), 5 percent (Wilde 1978), and 13 percent (Rauscher 1997). The
mortality rate for one study approached 20 percent when the total
number of captured animals was considered (11 deaths of 58
individuals), and all of the mortalities in this study occurred in just
one portion of the study area (Rauscher 1997). Trapping methods, daily
and seasonal timing, study location, holding facilities and site
security, and husbandry techniques may all affect the level of capture-
related mortality incurred. In addition, vandalism of captive rearing
facilities remains a threat following capture (L. Hardesty, pers. comm.
2002).
Currently, the WDFW is leading efforts to establish a captive
breeding population of Columbia Basin pygmy rabbits (see Current
Management Actions, above). To date, three capture-related deaths have
occurred in this program. These deaths represent roughly a 14 percent
mortality rate for the captured animals (3 of 21 individuals). While
the captive propagation program is necessary to help ensure the long-
term survival of the Columbia Basin pygmy rabbit, and we support these
efforts, the potential for capture-related mortality to significantly
affect the success of this program remains.
Some pygmy rabbit burrows are relatively shallow and may collapse
when walked on by humans (Wilde 1978). Investigations of pygmy rabbits
often entail the destruction of individual burrows, while measuring of
the vegetation community and other site characteristics immediately
surrounding burrow systems, and/or disturbance to the general area
occupied by the pygmy rabbits (Janson 1946; Bradfield 1974; Green 1978;
Wilde 1978; Gahr 1993; Gabler 1997; Rauscher 1997). Furthermore,
various ongoing management and maintenance activities of the WDFW at
the Sagebrush Flat site (e.g., establishment of firebreaks, species and
habitat surveys, fencing removal or construction) have the potential to
directly or indirectly affect the Columbia Basin pygmy rabbit.
It is unlikely that any of the above activities alone has played a
significant role in the long-term population decline and range
reduction of the Columbia Basin pygmy rabbit. However, due to the
current vulnerability of both the wild and captive portions of this
population segment, any additional source of mortality may now play a
significant role and could impair efforts to conserve the Columbia
Basin pygmy rabbit.
C. Disease or predation. Pygmy rabbits often harbor a high parasite
load (Gahr 1993; WDFW 1995a). Some of the parasites of pygmy rabbits,
including ticks, fleas, and lice, can be vectors of disease. Episodes
of plague and tularemia from these vectors have been reported in
populations of a number of other Leporid species and are often
fulminant (rapidly spreading) and fatal (Quan 1993). Severe disease
epidemics have not been reported in pygmy rabbits, and parasites have
not been viewed as a significant threat to the species (Green 1979;
Gahr 1993). However, evidence of plague was reported in a coyote taken
from the site of one of the recently extirpated subpopulations of
Columbia Basin pygmy rabbits (WDFW 2001a). The potential occurrence of
plague in this subpopulation is being investigated using blood samples
obtained prior to its extirpation (D. Hays, pers. comm. 2001).
Additional studies have been proposed to investigate the occurrence of
plague and other diseases, and their possible control, in wild and
captive

[[Page 10406]]

populations of pygmy rabbits (C. Brand, National Wildlife Health
Center, pers. comm. 2001). Because so few Columbia Basin pygmy rabbits
remain, the potential for disease outbreak represents a significant
threat to both the wild and captive portions of this population
segment.
Predation is thought to be a major cause of mortality among pygmy
rabbits (Green 1979; Wilde 1978). However, pygmy rabbits have adapted
to the presence of a wide variety of avian and terrestrial predators
that occur throughout their historic distribution (Janson 1946;
Gashwiler et al. 1960; Green 1978; Wilde 1978; WDFW 1995a). In
relatively large, well distributed pygmy rabbit populations, predation
is not likely to represent a significant threat to their long-term
security. In contrast, due to the extremely small size and localized
occurrence of the Columbia Basin pygmy rabbit population, altered
predation patterns, or even natural levels of predation, currently
represent a significant threat to both the wild and captive portions of
this population segment and could impair ongoing conservation efforts.
Due to confirmed evidence of coyote predation on the Columbia Basin
pygmy rabbit, the WDFW implemented a predator control program during
the fall-winter periods of 1998-1999 and 1999-2000 (WDFW 2000a).
Numerous coyotes and several long-tailed weasels were removed, by
shooting, traps, or snares, over roughly 52 square kilometers (20
square miles) around and including the Sagebrush Flat site. The level
of effort to control terrestrial predators varied among years and
areas, and the efficacy of this program to protect the Columbia Basin
pygmy rabbit is unknown. There are also a variety of avian predators
that may occur at the Sagebrush Flat site. In an effort to help control
the occurrence of common ravens and other predatory birds, the WDFW
recently removed two obsolete windmills from the area that could have
potentially been used as perching or nesting sites (M. Hallet, pers.
comm. 2002).
Because of the relatively restricted distribution of the Columbia
Basin pygmy rabbit, terrestrial and avian predators may also have a
reduced search area and/or increased success rate at the Sagebrush Flat
site. To further address the threat of predation on the Columbia Basin
pygmy rabbit, additional measures are being considered by the WDFW for
this area, such as controlling artificial food sources (e.g., spilled
grain, trash, carnivore baits), the removal of unnecessary fencing
potentially used as perch sites for avian species, and providing
appropriate predator exclusion fencing (M. Hallet, pers. comm. 2002; D.
Hays, pers. comm. 2002).
Several measures (e.g., double fencing, monitoring) have been taken
to reduce the risk of predation on the captive portion of the Columbia
Basin pygmy rabbit population (R. Sayler, WSU, pers. comm. 2001; L.
Shipley, pers. comm. 2001). In addition, captive animals are currently
being held at multiple facilities, which reduces the risk of
catastrophic loss at a single facility (D. Hays, pers. comm. 2002).
However, while the risk has been greatly reduced, the potential for
certain predators to access cages at the captive rearing facilities
remains.
Due to the extremely small size of the Columbia Basin pygmy rabbit
population, even low levels of predation represent a significant risk
to the immediate security of both the wild and captive portions of this
population segment.
D. Inadequacy of existing regulatory mechanisms. Washington State
classification of the Columbia Basin pygmy rabbit as endangered makes
it illegal to attempt to kill, injure, capture, harass, possess, or
control individuals of the species (WDFW 1995a). However, illegal or
accidental shooting of Columbia Basin pygmy rabbits may occur in
association with hunting seasons for other small game species (see
factor C above). In addition, State designation does not provide
regulatory protection of the habitats considered essential to the long-
term security of the Columbia Basin pygmy rabbit.
Pursuant to Washington State legislation passed in 1993 (HB 1309),
the Washington State Conservation Commission (WSCC) oversaw the
development and provided approval of ecosystem standards for State-
owned agricultural and grazing lands (WSCC 1995). HB 1309 called for
implementation of the ecosystem standards to maintain and restore fish
and wildlife habitat within the State by improving overall ecosystem
health. The standards developed under HB 1309 are mandated for lands
under the jurisdiction of the WDFW and Washington Department of Natural
Resources (WDNR). Application of the standards on lands managed by the
WDNR must be consistent with the agency's fiduciary obligations.
Currently, we are assisting private landowners with development of
a county-wide HCP to protect important plant and animal species on
agricultural lands in Douglas County. However, there are no regulatory
protections for unlisted species during development of HCPs.
Revegetation standards under the CRP promote the improvement of
habitats potentially used by the Columbia Basin pygmy rabbit, and the
CRP restricts livestock grazing on contract lands except under severe
drought conditions (M. Ruud, Farm Service Agency, pers. comm. 2001).
E. Other natural or human-caused factors affecting the species'
continued existence. The immediate concerns for the Columbia Basin
pygmy rabbit are associated with the population's extremely small size,
history of fragmentation and extirpation, and the recent, dramatic
decline in its distribution and abundance. Small populations are
susceptible to random environmental events (e.g., severe storms,
prolonged drought, extreme cold spells, volcanic fallout), abrupt
changes in cover and food resources, altered predator or parasite
populations, disease outbreaks, and fire. Small populations are also
more susceptible to demographic and genetic problems (Shaffer 1981).
These threat factors, which may act in concert, include natural
variation in survival and reproductive success of individuals, chance
disequilibrium of sex ratios, changes in gene frequencies due to
genetic drift, and lack of genetic diversity caused by inbreeding.
Genetic indices indicate that the Columbia Basin pygmy rabbit had
less genetic diversity historically than the remainder of the taxon. In
addition, this population segment has undergone further loss of genetic
diversity since roughly the mid-1900s. Severe loss of genetic diversity
may make the Columbia Basin pygmy rabbit more susceptible to extinction
due to inbreeding depression or, assuming inappropriate introduction of
other pygmy rabbit genes, swamping of their unique genetic profile.
Reduced genetic diversity, and the relatively few family lineages
remaining in the Columbia Basin pygmy rabbit population, may also
complicate captive breeding strategies conducted to reestablish a
minimum effective population size. Ultimately, an appropriate effective
population size will help ensure the maintenance and enhancement of the
genetic heterogeneity that is still present within this population
segment (K. Warheit, pers. comm. 2001, 2002).
In relatively large, well distributed pygmy rabbit populations, the
above threats are not likely to represent a significant risk to their
long-term security. However, due to the extremely small size and
localized occurrence of both the wild and captive portions of the
Columbia Basin pygmy rabbit

[[Page 10407]]

population, these threats represent a significant risk to the long-term
security of this DPS.

Conclusion

Due to the combined influence of the above threats, extirpation of
the Columbia Basin pygmy rabbit from the wild may occur at any time
(WDFW 2001b). In addition, the risks to the captive portion of the
population, and the potential for extinction of the Columbia Basin
pygmy rabbit, remain high. We have carefully assessed the best
scientific and commercial information available regarding the past,
present, and potential future threats faced by the Columbia Basin pygmy
rabbit. Based on our evaluation of the five threat factors discussed
above, we have determined that the Columbia Basin pygmy rabbit is in
danger of extinction. As such, we are listing the Columbia Basin pygmy
rabbit as endangered.

Critical Habitat

Critical habitat is defined in section 3 of the Act as: (i) The
specific area within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species, and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by the species at the time it is listed, in
accordance with the provisions of section 4 of the Act, upon a
determination by the Secretary that such areas are essential for the
conservation of the species. ``Conservation'' means the use of all
methods and procedures needed to bring the species to the point at
which listing under the Act is no longer necessary.
Section 4(a)(3) of the Act, as amended, and its implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, we designate critical habitat at the time the species
is determined to be endangered or threatened. Our implementing
regulations (50 CFR 424.12(a)) state that critical habitat is not
determinable if information sufficient to perform the required analyses
of impacts of the designation is lacking, or if the biological needs of
the species are not sufficiently well known to permit identification of
an area as critical habitat. Section 4(b)(2) of the Act requires us to
consider economic and other relevant impacts of designating a
particular area as critical habitat on the basis of the best scientific
data available. We may exclude any area from critical habitat if we
determine that the benefits of such exclusion outweigh the conservation
benefits, unless to do so would result in the extinction of the
species.
We find that designation of critical habitat for the Columbia Basin
pygmy rabbit is not determinable at this time because information
sufficient to perform the required analyses of the impacts of the
designation is lacking. We specifically solicited information on
potential critical habitat, biological information, and information
that would aid our prudency analysis in our proposed rule. We received
no comments regarding specific physical or biological features
essential to the Columbia Basin pygmy rabbit which provided information
that added to our ability to determine critical habitat. In addition,
the extent of habitat essential to the conservation of the species has
not been identified. When a ``not determinable'' finding is made, we
must, within 2 years of the publication date of the original proposed
rule, designate critical habitat, unless the designation is found to be
not prudent.
We will continue to protect the Columbia Basin pygmy rabbit and its
habitat through section 7 consultations to determine whether Federal
actions may affect this population segment, through the recovery
process, through HCPs and through enforcement of the Act's ``take''
prohibitions (see 16 U.S.C. 1538; 50 CFR 17.21).

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, requirements for Federal
protection, prohibitions against certain activities, and development of
recovery plans. Recognition through listing results in public awareness
and encourages conservation actions by Federal, State, and Tribal
agencies, non-governmental conservation groups, and private
individuals. The Act provides for possible land acquisition and
cooperation with the States, and requires that recovery actions be
carried out for listed species. The protection required of Federal
agencies, and the prohibitions against certain activities involving
listed species are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened, and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) requires Federal agencies to confer with us
on any action that is likely to jeopardize the continued existence of a
species proposed for listing, or result in destruction or adverse
modification of proposed critical habitat. If a species is listed
subsequently, section 7(a)(2) requires Federal agencies to ensure that
activities they authorize, fund, or carry out are not likely to
jeopardize the continued existence of the species or destroy or
adversely modify its critical habitat, if any has been designated. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into formal consultation with us.
Federal agencies, whose actions may require consultation for the
Columbia Basin pygmy rabbit include, but are not limited to, those
within the jurisdictions of the Service, BLM, Bureau of Reclamation,
Natural Resources Conservation Service, and Farm Service Agency. In
addition, activities that are authorized, funded, or administered by
Federal agencies on non-Federal lands will be subject to section 7
review.
We believe that protection and recovery of the Columbia Basin pygmy
rabbit will require reduction of the threats from uncontrolled fire,
altered predation patterns, excessive livestock grazing, disease
outbreaks, mortality associated with the captive propagation and
release programs, and loss of genetic viability. These threats should
be considered for management actions in habitats currently and
potentially occupied by the Columbia Basin pygmy rabbit, and those
deemed important for dispersal between their appropriate use areas.
Monitoring should also be undertaken for any management actions or
scientific investigations designed to address these threats or their
potential impacts.
Listing the Columbia Basin pygmy rabbit as endangered provides for
the development and implementation of a recovery plan for the
population. This plan will bring together Federal, State, tribal, and
local efforts for conservation of the species, and will establish a
framework for interested parties to coordinate recovery efforts. The
plan will set recovery priorities, assign responsibilities, and
estimate the costs of the various tasks necessary to achieve
conservation and survival of the species. Additionally, pursuant to
section 6 of the Act, we will be able to grant funds to the State of
Washington for management actions promoting the protection and recovery
of this species.
Considerations for management actions and scientific investigations
to

[[Page 10408]]

address the above threats to the Columbia Basin pygmy rabbit include,
but are not limited to:
(1) Fire--implementation of agreements between fire-fighting
districts and/or agency departments to provide adequate coverage,
construction of fire breaks, availability of fire-fighting equipment,
fire-fighting techniques, weed control, use of prescribed fire, and
removal or restriction of unimproved road access and informal
recreational activities;
(2) Livestock Grazing--season(s) of use, stocking rate(s) and
type(s), location of supplemental water and salt/minerals, loading and
transport facilities, exclusion fencing, and removal;
(3) Habitat Protection and Restoration--control of exotic and/or
invasive plant species, planting types and techniques, soils and
hydrologic analyses, land acquisition and connectivity, and control of
unauthorized access.
(4) Predation--identification of primary predators and predation
patterns, development of protocols for fence removal and/or new fence
construction, and predator deterrents and/or lethal control of
predators to protect the wild and captive portions of the population;
(5) Disease--identification and control of potential disease and
disease vectors in wild and captive portions of the population;
(6) Capture, husbandry, and reintroduction--development of
protocols for survey, capture, handling, and husbandry techniques;
maintenance and security of multiple holding facilities for captive
stock; inventory and evaluation of appropriate release sites; and
development of release and site maintenance protocols; and
(7) Genetics--identification of additional genetic markers,
implementation of appropriate breeding scenarios, and establishment of
a minimum effective population for captive breeding and reintroduction
efforts.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
wildlife. The prohibitions of section 9 of the Act, codified at 50 CFR
17.21, in part, make it illegal for any person subject to the
jurisdiction of the United States to take (including harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt
any such conduct), import or export, transport in interstate or foreign
commerce in the course of commercial activity, or sell or offer for
sale in interstate or foreign commerce any listed species. It is also
illegal to possess, sell, deliver, carry, transport, or ship any such
wildlife that has been taken illegally. Certain exceptions apply to our
agents and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving listed species under certain circumstances. Such permits are
available for scientific purposes, to enhance the propagation or
survival of the species, or for incidental take in connection with
otherwise lawful activities.
It is our policy, published in the Federal Register on July 1, 1994
(59 FR 34272), to identify, to the maximum extent practical, those
activities that would or would not constitute a violation of section 9
of the Act. The intent of this policy is to increase public awareness
of the effect of the listing on proposed and ongoing activities within
the species' range. For the Columbia Basin pygmy rabbit, based upon the
best available information, we believe the following actions are
unlikely to result in a violation of section 9, provided these
activities are carried out in accordance with existing regulations and
permit requirements:
(1) Possession, delivery, or movement, including interstate
transport and import into or export from the United States of dead
specimens of Columbia Basin pygmy rabbits that were collected prior to
the date of publication of the emergency listing rule in the Federal
Register;
(2) Any action authorized, funded, or carried out by a Federal
agency that may affect the Columbia Basin pygmy rabbit (e.g., land
exchanges, land clearing, prescribed burning, livestock grazing, pest
control, utility line or pipeline construction, mineral extraction or
processing, housing developments, off-road vehicle use, recreational
trail or campground development, road construction, shooting,
poisoning, habitat conversion, road construction, water development and
impoundment, unauthorized application of herbicides or pesticides in
violation of label restrictions) when the action is conducted in
accordance with an incidental take statement issued under section 7 of
the Act;
(3) Any action carried out for scientific research or to enhance
the propagation or survival of the Columbia Basin pygmy rabbit that is
conducted in accordance with the conditions of a section 10(a)(1)(A)
permit under the Act; and
(4) Any incidental take of the Columbia Basin pygmy rabbit
resulting from an otherwise lawful activity conducted in accordance
with the conditions of an incidental take permit issued under section
10(a)(1)(B) of the Act.
Activities that we believe could potentially result in a violation
of section 9 include, but are not limited to:
(1) Unauthorized possession, trapping, handling, collecting, or
release of pygmy rabbits within the historic range of the Columbia
Basin pygmy rabbit. Research efforts involving these activities will
require a permit under section 10(a)(1)(A) of the Act;
(2) Other activities that actually kill or injure a Columbia Basin
pygmy rabbit by significantly impairing essential behavioral patterns
(such as breeding, feeding or sheltering) through significant habitat
modification or degradation (e.g., via land clearing, prescribed
burning, habitat conversions, over-grazing or trampling by livestock,
pest control, minerals extraction or processing, housing developments,
off-road vehicle use, recreational trail or campground development,
shooting, intentional poisoning, road construction, water development
and impoundment, unauthorized application of herbicides or pesticides
in violation of label restrictions). Otherwise lawful activities that
incidentally take a Columbia Basin pygmy rabbit will require a permit
under section 10(a)(1)(B) of the Act.
Questions regarding whether specific activities risk violating
section 9 should be directed to our Upper Columbia Fish and Wildlife
Office (see ADDRESSES section). Requests for copies of the regulations
on listed wildlife, including general inquiries regarding prohibitions
and issuance of permits under the Act, may be addressed to the U.S.
Fish and Wildlife Service, Ecological Services, Endangered Species
Permits, 911 NE. 11th Avenue, Portland, Oregon 97232-4181 (telephone
503/231-2063; facsimile 503/231-6243).

Immediate Effective Date

The emergency listing that protected the Columbia Basin pygmy
rabbit for 240 days expired on July 29, 2002. The threats to the
species remain imminent and severe. Because of the extremely small size
of the only remaining wild population, and the expiration of its
interim protection, we find that good cause exists for this rule to
take effect immediately upon publication in accordance with 5 U.S.C.
553(d)(3).

National Environmental Policy Act

We have determined that environmental assessments and environmental
impact statements, as defined in the National Environmental

[[Page 10409]]

Policy Act of 1969, need not be prepared in connection with regulations
adopted pursuant to section 4(a) of the Endangered Species Act of 1973,
as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244).

Paperwork Reduction Act

This rule does not contain any new collections of information that
require approval by Office of Management and Budget (OMB) under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). This rule will not
impose record keeping or reporting requirements on State or local
governments, individuals, businesses, or organizations. An agency may
not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. The existing OMB control number is 1018-0094 and
expires July 31, 2004.

Executive Order 13211

On May 18, 2001, the President issued an Executive Order on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires Federal agencies to prepare
Statements of Energy Effects when undertaking certain actions. This
final rule is not expected to significantly affect energy supplies,
distribution, or use. Therefore, this action is not a significant
energy action and no Statement of Energy Effects is required.

References Cited

A complete list of references cited herein is available upon
request from the Upper Columbia Fish and Wildlife Office (see ADDRESSES
section).

Author

The primary author of this final rule is Christopher Warren of the
Upper Columbia Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 will continue to read as
follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. In Sec. 17.11(h), add the following to the List of Endangered
and Threatened Wildlife in alphabetical order under MAMMALS:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mammals

* * * * * * *
Rabbit, Columbia Basin pygmy..... Brachylagus U.S.A. (western U.S.A. (WA-- E ........... NA NA
idahoensis. conterminous U.S.). Douglas, Grant,
Lincoln, Adams,
Benton Counties).

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: February 20, 2003.
Steve Williams,
Director, Fish and Wildlife Service.
[FR Doc. 03-5076 Filed 3-4-03; 8:45 am]
BILLING CODE 4310-55-P

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Endangered and Threatened Wildlife and Plants; Final Rule to List the Columbia Basin Distinct Population Segment of the Pygmy Rabbit (Brachylagus idahoensis) as Endangered

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