[Federal Register Volume 66, Number 231 (Friday, November 30, 2001)]
[Rules and Regulations]
[Pages 59734-59749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29615]



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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; Emergency Rule To 
List the Columbia Basin Distinct Population Segment of the Pygmy Rabbit 
(Brachylagus idahoensis) as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Emergency rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), exercise our 
authority under the Endangered Species Act of 1973, as amended (Act), 
to emergency list the Columbia Basin distinct population segment of the 
pygmy rabbit (Brachylagus idahoensis) as endangered. This population 
segment consists of a single, wild colony totaling fewer than 50 
individuals in Douglas County, central Washington, and a small captive 
population.
    The Columbia Basin pygmy rabbit is imminently threatened by a 
recent significant decrease in population that has caused it to be 
susceptible to the combined influence of catastrophic environmental 
events, habitat or resource failure, disease, predation, and loss of 
genetic heterogeneity. We find that these threats constitute an 
immediate and significant risk to the well-being of the Columbia Basin 
pygmy rabbit. Because of the need to make protective measures afforded 
by the Act immediately available to this species, we find that an 
emergency rule action is justified. This emergency rule provides 
Federal protection pursuant to the Act for a period of 240 days. A 
proposed rule to list the Columbia Basin pygmy rabbit as endangered is 
published concurrently with this emergency rule in the proposed rule 
section of this issue of the Federal Register.

DATES: This emergency rule becomes effective immediately on November 
30, 2001, and expires July 29, 2002.

ADDRESSES: The complete file for this emergency 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: [email protected]).

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 described in 1891 
(Washington Department of Fish and Wildlife (WDFW) 1995), when it was 
classified as Lepus idahoensis. In 1904, it was reclassified and placed 
in the genus Brachylagus, and in 1930, it was again reclassified and 
placed in the genus Sylvilagus (WDFW 1995). More recent examination of 
dentition (Hibbard 1963) and analysis of blood proteins (Johnson 1968) 
suggests 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 
again classified as B. idahoensis (Green and Flinders 1980a; WDFW 
1995). 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 462 grams (0.83 to 1.02 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 1995). Females tend 
to be slightly larger than males. The overall color of pygmy rabbits is 
slate-gray tipped with brown. Their legs, chest, and nape 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 inside and out. 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 1995). 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 typically are 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 1995). The winter diet of pygmy rabbits is 
composed of up to 99 percent sagebrush (Wilde 1978), which is unique 
among Leporids (White et al. 1982). During spring and summer, 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 (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 pygmy rabbit colonies as a result of its use as a food source 
during spring and summer (Green and Flinders 1980b).
    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 1995), the other being the volcano rabbit 
(Romerolagus diazi) found in central Mexico (Durrell and Mallinson 
1970). Pygmy rabbit burrows typically are found in relatively deep, 
loose soils of wind-borne (i.e., loess) 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 (Taxida taxus) (Wilde 1978; Green and Flinders 
1980a; WDFW 1995) and 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 to access 
sagebrush forage (Bradfield 1974; 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 1995). 
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 typically are dug into gentle slopes or mound/
inter-mound areas of more level or dissected topography (Wilde 1978; 
Kehne 1991; Gahr 1993). In general, the number of active burrows in a 
colony 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 colony because some individual 
pygmy rabbits appear to maintain multiple burrows, while some 
individual burrows are used by multiple individuals (Gahr 1993; WDFW 
1995).
    Pygmy rabbits begin breeding in their second year and, in 
Washington, breeding occurs from February through July (WDFW 1995). 
Females may have up to three litters per year and average six young per 
litter (Green 1978; Wilde

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1978). Breeding appears to be highly synchronous in a colony, 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 1995). 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).
    Recent 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 refills the burrow entrance with 
loose soil and otherwise disguises the immediate area to avoid 
detection. Other ``dead-end'' burrows that females construct nearby 
apparently are associated with the natal burrows. 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 
Flinders1980a; 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 1995; 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, while over 50 percent of juveniles apparently die within 
roughly 5 weeks of their emergence (Wilde 1978; WDFW 1995). 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 is the main cause of pygmy rabbit 
mortality (Green 1979). Potential predators include badgers (Taxidea 
taxus), 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), and northern 
harriers (Circus cyaneus) (Janson 1946; Gashwiler et al. 1960; Green 
1978; Wilde 1978; WDFW 1995).
    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 1995). 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 (Wilde 
1978; Green and Flinders 1980b; WDFW 1995).

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 likely 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 historically. Rather, they are found in 
areas within their broader distribution where sagebrush cover is 
sufficiently tall and dense, and where soils are sufficiently deep and 
loose to allow burrowing (Bailey 1936; Green and Flinders 1980a; Weiss 
and Verts 1984; WDFW 1995). The local distribution of these habitat 
patches, and thus pygmy rabbits, likely shifts across the landscape in 
response to various sources of disturbance (e.g., fire, flooding, 
grazing, and crop production) combined with long- and short-term 
weather patterns. Historically, more dense vegetation along permanent 
and intermittent stream corridors, alluvial fans, and sagebrush plains 
probably provided travel corridors or dispersal habitat for pygmy 
rabbits between appropriate use areas (Green and Flinders 1980a; Weiss 
and Verts 1984; WDFW 1995). Since European settlement of the western 
United States, more dense vegetation associated with human activities 
(e.g., fence rows, roadway shoulders, crop margins, and abandoned 
fields) also may have acted as avenues of dispersal between local 
populations of pygmy rabbits (Green and Flinders 1980a; Pritchett et 
al. 1987).

Prehistoric Distribution

    The population segment of the pygmy rabbit within the Columbia 
Basin, a geographic area that extends from northern Oregon through 
eastern Washington (Quigley et al. 1997), 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 fossil records (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 (above). The pygmy rabbit has been present in the 
Columbia Basin for at least 100,000 years and 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 pygmy rabbit range within the Columbia Basin during the 
late Holocene (3,000 years BP to present) (Grayson 1987; Lyman 1991).

Historic and Current Distribution

    Pygmy rabbits have been considered rare for many years, with local 
areas of occurrence in Washington (Dalquest 1948), although there is 
little comprehensive information available regarding their historic 
distribution and abundance in the State (WDFW 1995). Museum specimens 
and reliable sight records indicate that, during the first half of the 
1900s, pygmy rabbits probably occurred in at least five Washington 
counties, including Douglas, Grant, Lincoln, Adams, and Benton (Figure 
2). Once thought to be extirpated from the State, pygmy rabbits were 
again located in Washington in 1979. Intensive surveys in 1987 and 1988 
discovered five small colonies of pygmy rabbits in southern Douglas 
County; three occurred on State lands and two on private lands (WDFW 
1995). With the exception of a single site record from Benton County in 
1979, 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 1995).
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    The number of pygmy rabbit colonies and active burrows in 
Washington has declined over the past decade (WDFW 2001a). Four of the 
five colonies located in 1987 and 1988 were very small, with fewer than 
100 active burrows (WDFW 1995); the largest colony (at the State-owned 
Sagebrush Flat site in Douglas County) contained roughly 588 active 
burrows in 1993, when it was estimated to support fewer than 150 
rabbits (Gahr 1993). While an additional colony was discovered on 
private land in northern Grant County in 1997, three of the small 
colonies originally located became extirpated during the 1990s, leaving 
just three known colonies 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 declined for unknown reasons to two active burrows following the 
winter of 1999-2000 (WDFW 2001a). These two colonies are now thought to 
be extirpated (WDFW 2001b; D. Hays and T. McCall, WDFW, pers. comm., 
2001). In addition, during the winter of 1997-1998, the number of 
active pygmy rabbit burrows at Sagebrush Flat declined by approximately 
50 percent, and has continued to decline each year since (WDFW 2001a). 
The entire wild pygmy rabbit population in Washington is now considered 
to consist of fewer than 50 individuals, possibly from just one known 
colony at Sagebrush Flat in Douglas County (T. McCall, pers. comm., 
2001).
    Although habitat loss and fragmentation likely have played a 
primary role in the long-term prehistoric and historic decline of the 
pygmy rabbit in Washington, it is unlikely that these factors have 
directly influenced the post-1995 declines at Sagebrush Flat and the 
extirpations of some of the smaller populations (WDFW 2001a). Once 
populations decrease below a certain threshold, they become at risk of 
extirpation from a number of sources, including disease, predation, 
catastrophic event (e.g., fire), and random environmental events (e.g. 
extreme weather) (WDFW 2001a). The remaining wild population of pygmy 
rabbits in Washington is currently at such risk and without immediate 
intervention, it likely will become extirpated within the near future.

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 conclusive data on biological vulnerability 
and threats was not available to support a proposed rule. On February 
28, 1996, we discontinued the designation of category 2 species as 
candidates for listing under the Act (61 FR 7596). Species that were 
formerly category 2 candidates currently are watched, managed, and 
protected by the States they occupy and by the Service field offices in 
those States, but have no Federal regulatory status. We are currently 
planning a status review of the pygmy rabbit range-wide to determine if 
further Federal regulatory protection for the species is appropriate.
    The processing of this emergency rule conforms with our updated 
Listing Priority Guidance, published in the Federal Register on October 
22, 1999 (64 FR 57114). The guidance clarifies the order in which we 
process rule-makings. Highest priority is given to processing emergency 
listing rules for any species determined to face a significant risk to 
its well-being. Second priority is the processing of final 
determinations on proposed additions to the lists of endangered and 
threatened wildlife and plants. Third priority is processing new 
proposals to add species to the lists. The processing of administrative 
petition findings (petitions filed under section 4 of the Act) is the 
fourth priority.

Current Management Actions

    The WDFW has undertaken a variety of conservation actions for pygmy 
rabbits in Washington since 1979 (WDFW 1995; WDFW 2001a). These actions 
have included population surveys, habitat inventories, land 
acquisitions, habitat restoration, land management agreements, 
initiation of studies on the effects of grazing, and emergency predator 
control. Some of these efforts have been partially funded by the 
Bonneville Power Administration. As funding sources and staffing levels 
allow, WDFW efforts to conserve pygmy rabbits in the wild will continue 
(D. Hays, pers. comm., 2001).
    During the fall of 2000, in cooperation with the Oregon Zoo, the 
WDFW 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 rearing 
and release efforts for Washington's pygmy rabbits. Due to the 
continuing decline of pygmy rabbit colonies and active burrows in 
Washington, the WDFW, in cooperation with WSU, expedited their captive 
rearing efforts for pygmy rabbits in Washington during the spring of 
2001 (WDFW 2001b; D. Hays, pers. comm., 2001).
    The immediate goal of the effort for pygmy rabbits in Washington is 
to capture up to 20 animals to establish a captive breeding stock. The 
actual number and type (gender, age, family unit) of pygmy rabbits 
taken from the wild will be based partly on information from the 
ongoing husbandry study, and partly on estimates of what is needed to 
allow for appropriate manipulation of genetic lineages to better manage 
this population's unique genetic profile. Pygmy rabbits that are not 
considered essential to the captive rearing effort will be left in the 
wild, and ongoing management to protect this wild portion of the 
population will continue.
    During the spring and early summer of 2001, eleven pygmy rabbits 
(seven female, four male) were captured from the Washington population 
as an initial source for captive breeding efforts (D. Hays, pers. 
comm., 2001). One male subsequently died, and the cause of its death is 
being investigated. The ten remaining rabbits appear to have adjusted 
well to the captive-rearing facilities and reproductive behavior has 
been observed, including the birth of a litter of five offspring (two 
female, three male) that was conceived in the wild (L. Shipley, pers. 
comm., 2001; D. Hays, pers. comm., 2001). The intent is to capture 
additional animals this year that will complement the genetic profiles 
and potential breeding scenarios of those already in captivity (D. 
Hays, pers. comm., 2001).
    Ultimately, the goal of the captive rearing effort is to release 
Washington's pygmy rabbits back into wild habitats within the State 
where viable colonies can become re-established and the wild population 
can be recovered (WDFW 2001b; D. Hays, pers. comm., 2001). The number 
and size of the wild colonies necessary for recovery is yet to be 
determined. Pygmy rabbits within captive propagation facilities will 
not be counted toward recovery of the species; the captive propagation 
program affords an opportunity to protect and maintain the Columbia 
Basin pygmy rabbit until environmental conditions become more favorable 
to the survival of the species in the wild through natural cycles and 
as a result of habitat protection and enhancement. The timing and 
objectives for the release phase of the program will be further 
developed as the captive-rearing 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.

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The group currently comprises State and Federal agency personnel, 
public zoo and university experts, representatives from non-
governmental organizations, and private individuals with interests in 
the conservation of Washington's pygmy rabbits.
    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 a recent 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 for pygmy rabbits (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 the Washington Department of 
Natural Resources. Conservation measures for pygmy rabbits are also 
considered in the management of these agency lands (N. Hedges, BLM, 
pers. comm., 2001; D. Hays, 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 used by 
pygmy rabbits 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, under the 1985 Federal 
Conservation Reserve Program (CRP) (U.S. Department of Agriculture 
1998), are planted to native and non-native vegetation. 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 pygmy rabbits. 
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 are being implemented 
that require replanting of significant acreage under existing contracts 
(USDA 1998; Schroeder, WDFW, pers. comm., 2001). Presently, it is 
unclear what effects the CRP lands and recent changes to the program 
may have on pygmy rabbits in Washington.
    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 include measures 
to protect pygmy rabbits and will complement other, ongoing 
conservation efforts in Douglas County.

Distinct Vertebrate Population Segment

    Pursuant to the Act, 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 guidance, the Service and National Marine 
Fisheries Service developed a joint policy in 1996 that addresses the 
recognition of DPSs 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.
    Under our DPS policy, three elements are considered in a decision 
regarding the status of a possible DPS as endangered or threatened 
under the Act. Two of these elements are used to assess whether a 
population segment under consideration for listing constitutes a DPS; 
these 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 the above 
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 third 
element, the status of the population in relation to the Act's 
standards for listing (i.e., is the population segment, when treated as 
if it were a species, endangered or threatened), is evaluated based on 
the five listing factors established by the Act.

Discreteness

    Discreteness may be demonstrated by either, or both, of the 
following: (1) Physical, physiological, ecological, behavioral, 
morphological, or genetic discontinuity between population 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 and, therefore, the 
international boundary criterion does not apply to this emergency rule.
    The population segment of the pygmy rabbit occupying the Columbia 
Basin has been physically discrete from the remainder of the taxon for 
several millennia (see Distribution and Status, above). In addition, 
there is recent evidence that the Columbia Basin population segment is 
ecologically and genetically discrete from the remainder of the taxon 
(see Significance, below). Based on this information, we find that the 
population segment of the pygmy rabbit within the Columbia Basin is 
discrete from the remainder of the taxon pursuant to the Act. Behavior, 
morphological, or physiological differences between pygmy rabbits of 
the Columbia Basin DPS and those from the remainder of the range are 
not known at this time, but given the genetic distinction and length of 
temporal separation, such differences would not be considered 
anomalous.

Significance

    Our DPS policy provides several examples of the types of 
information that may demonstrate the significance of a discrete 
population segment to the remainder of its taxon, including, but not 
limited to (1) persistence of the population segment in an ecological 
setting unusual or unique for the taxon; (2) evidence that the 
population segment differs markedly from other population segments in 
its genetic characteristics; and (3) evidence that loss of the 
population segment would result in a significant gap in the range of 
the taxon. The following significance factors, presented in order of 
their significance, have bearing on the population segment of the pygmy 
rabbit that remains in central Washington.
    Markedly different genetic characteristics. Several studies have 
been initiated to investigate the pygmy rabbit's genetic profile (WDFW 
2000c; WDFW 2001a; Cegelski and Waits, undated). To date, the genetics 
analyses include recent (c. 1990 to present) samples from Washington, 
Idaho, and Montana, and museum specimens (c. 1900s to 1970s) from 
Washington, Montana, Idaho, Oregon, with a median date of 1949 (K. 
Warheit, WDFW, pers. comm., 2001; WDFW 2001c). Analyses have included 
both mitochondrial DNA and nuclear DNA markers (WDFW 2001c).
    Results from recent genetic analyses indicate that the Washington 
population of the pygmy rabbit (the Columbia Basin population segment) 
is distinct and only distantly related to the other pygmy rabbit 
populations (WDFW 2001c; K. Warheit, pers. comm., 2001). In analyses of 
both mitochondrial and nuclear DNA indices, a single haplotype found to 
be

[[Page 59741]]

present in Washington pygmy rabbits was also found to be distinct from 
the three haplotypes shared by Oregon, Idaho, and Montana pygmy 
rabbits. These differences are consistent between recent (WA versus ID 
and MT) and museum (WA versus OR, ID, and MT) samples. The data also 
indicate that the Washington pygmy rabbit population diverged (i.e., 
was genetically isolated) from the Montana and Idaho populations 
approximately 40,000 to 115,000 years ago, although a more conservative 
estimate would indicate 10,000 to 25,000 years of isolation (WDFW 
2001c). These genetic differences more likely than not are similar to 
subspecific differences recognized in other mammals; exact taxonomic 
resolution will require additional study (WDFW 2001c).
    The Columbia Basin population segment also exhibits significantly 
less genetic diversity compared to the other pygmy rabbit populations--
a likely result of long-term isolation. Peripheral and isolated 
populations may experience increased directional selection due to 
marginal or varied habitats or species compositions at range 
peripheries, exhibit adaptations specific to these differing selective 
pressures, demonstrate genetic consequences of reduced gene flow 
dependent on varying levels of isolation, 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). In addition, the level of genetic diversity found in tissue 
samples collected in Washington in the 1990s showed a continued and 
accelerated reduction in genetic variability, which may be associated 
with a recent rapid decline in population size and health (WDFW 2001c). 
Data showing a reduced within-individual genetic diversity suggest that 
the Washington population segment also may be experiencing a small 
degree of inbreeding (WDFW 2001c).
    Based upon the above results of genetic analyses, it is clear that 
(1) the unique characteristics of the Columbia Basin population segment 
of pygmy rabbits 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 
recent decline in genetic diversity within this population segment (K. 
Warheit, pers. comm., 2001).
    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). There are a number of differences between these studies, 
however, the ecosystem mapping units that result are relatively 
consistent. This landscape level approach is important in determining 
if the population segment of the pygmy rabbit that remains in central 
Washington may occupy an unusual or unique ecological setting. In 
addition, its utility is valuable for determining the bounds of any 
potential DPS in the region, as required by our DPS policy.
    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). 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, and the Bitterroot and Blue Mountains to the 
east; and steppe (grassland) habitats of the Palouse Prairie to the 
east.
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    The population segment of the pygmy rabbit in central Washington 
occurs entirely within the Columbia Basin, and has been the only 
representation of the taxon within this ecosystem for thousands of 
years. During the early 1900s, the population segment of the pygmy 
rabbit in central and southern Oregon was apparently locally dispersed 
across the High Lava Plains, Northern Great Basin, Owyhee Uplands, and 
Modoc Plateau (cf. 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, occurs primarily within the 
Northern Great Basin ecosystem.
    A number of significant differences are found between the Columbia 
Basin and the balance of pygmy rabbit range in central and southern 
Oregon (Table 1). 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, and Quigley et al. 1997).

                                            Ecosystem Elements: Geologic, Edaphic, and Transitional Habitats
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Channeled        Internally-                         Juniper        Salt-desert
      Population segment          Elevations           Soils           scablands      drained playas        Steppe          woodland          shrub
--------------------------------------------------------------------------------------------------------------------------------------------------------
Columbia Basin...............  3,000 ft........  Deep/Loamy        Prominent         Rare/Absent.....  Abundant (east)  Rare/Absent....  Rare/Absent.
                                                  Glacial/Eolian.   (north).
Central/Southern Oregon......  >3,500 ft.......  Thin/Rocky        Rare/Absent.....  Prominent (NGB,   Rare/Absent....  Abundant (HLP)   Abundant (NGB,
                                                  Volcanic (HLP)                      OU).                               Present (NGB,    OU).
                                                  Deep/Alluvial                                                          OU).
                                                  (NGB, OU) \1\.
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                                        Ecosystem Elements: Sagebrush (Artemsia) Taxa \2\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
      Population segment            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 and 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 pygmy rabbits occupying the Columbia 
Basin are different behaviorally or morphologically from other pygmy 
rabbits throughout the remainder of their historic range. However, 
based on the above 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. The unique elements of the Columbia Basin respectively hold 
unique management implications for pygmy rabbits within this ecosystem 
(see Table 1).
    Conclusion of DPS Evaluation. Based on the above consideration of 
the Washington population of the pygmy rabbit's discreteness and 
significance to the remainder of the species, we find that the 
population segment does represent a DPS. The population's discreteness 
is due to both its spatial and temporal separation from the remainder 
of the species. These separations are translated into ecological, 
physical, and genetic differences that account for the population's 
discreteness. The population segment's significance to the remainder of 
the taxon is due to (1) The unique genetic characteristics it 
possesses, (2) the significant gap in the historic range of the taxon 
that its loss would represent, and (3) the unique ecological setting of 
the Columbia Basin in which it persists.
    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). We refer 
to this population segment as the Columbia Basin pygmy rabbit for the 
remainder of this emergency rule and the accompanying proposed rule.

Status

    After a thorough review and consideration of all available 
information, we have determined that the Columbia Basin pygmy rabbit is 
a DPS. To determine if the DPS should be listed as threatened or 
endangered, we

[[Page 59744]]

evaluate on the five factors described in section 4(a)(1) of the Act. 
These factors and their application to the Columbia Basin pygmy rabbit 
follows.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all available 
information, we have determined that the Columbia Basin pygmy rabbit 
warrants classification as an endangered species. 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 species 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 follows.
    A. Present or threatened destruction, modification, or curtailment 
of habitat or range. Reduction of the shrub steppe habitat of the 
Columbia Basin that is required by the pygmy rabbit began in the 
historic past and currently threatens extant populations of the 
species. 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 1995). 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 1995; Franklin and Dyrness 1988; U.S. 
Department of Interior (USDI) 1998). While currently at reduced levels, 
conversion of shrub steppe habitats to both dryland and irrigated crop 
production within the Columbia Basin continues. 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). 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 grazing. Sagebrush is easily killed by 
fire and, when it occurs at increased frequencies, can remove sagebrush 
from the vegetation assemblage (Daubenmire 1988). In the absence of a 
sufficient seed source, sagebrush can not readily reinvade sites where 
it has been removed, and it may be many years before it can become 
reestablished (WDFW 1995). 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 sage brush, pygmy rabbits are 
precluded from occupying frequently burned areas.
    Various non-native, invasive plant species, such as cheatgrass 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 
(Weiss and Vert 1984). In addition, 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 1995).
    Land managed for grazing is often cleared of sagebrush to increase 
the production of grasses and forbs as forage for cattle (WDFW 1995; 
Rauscher 1997). Clearing large 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. Cattle may also damage 
pygmy rabbit burrow systems through trampling (Rauscher 1997; N. 
Siegel, WSU, pers. comm., 2001). Much of the remaining shrub steppe 
habitat in the Columbia Basin is managed for livestock grazing (WDFW 
1995; N. Hedges, pers. comm., 2001).
    Excessive 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 young sagebrush stands 
(Daubenmire 1988; WDFW 1995). In some instances, this disturbance may 
eventually result in the growth of the tall, dense stands of sagebrush 
(Ellison 1960), potentially improving cover conditions for pygmy 
rabbits. However, grazing at these levels potentially reduces the 
forage base of grasses and forbs for Columbia Basin pygmy rabbits 
during spring and summer (Green and Flinders 1980b; Rauscher 1997). 
Excessive grazing may also cause structural damage to dense stands of 
older sagebrush due to trampling. 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 grazing may be compatible 
with pygmy rabbit conservation efforts, or, due to the current threat 
of extirpation, if any grazing is appropriate at this time. However, 
there are several ongoing studies investigating the effects of 
different grazing strategies on Columbia Basin pygmy rabbits and their 
habitat (WDFW 1995; Sayler et al. 2001; L. Shipley, pers. comm., 2001).
    Due to the above combined influences, 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). Although many 
factors are affecting the decline of the Columbia Basin pygmy rabbit, 
the current population crisis is indirectly due to a lack of good, 
quality habitat that offers a balance of nutritional forage to maintain 
a healthy, disease-free, and growing population (see factor C) and 
cover for protection from predators and extreme weather conditions (see 
factors C and E).
    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 
1995). 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 visitors to the Sagebrush Flat site, the risk from 
incidental shooting of Columbia Basin pygmy rabbits is nominal (WDFW 
1995; D. Hays, pers. comm., 2001). However, in such reduced 
populations, this possible source of mortality could lead to 
extirpation, if it is not controlled.
    Investigations that require trapping, handling, and captivity of 
pygmy rabbits can result in mortality from several causes, including 
exposure (due to

[[Page 59745]]

excessively high or low temperatures), direct injury from entanglement 
in traps, trap predation, 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). 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 husbandry techniques may all affect the level 
of capture-related mortality incurred.
    Some pygmy rabbit burrows are relatively shallow and may collapse 
when walked on by humans or any similarly large animal (Wilde 1978). In 
addition, investigations of pygmy rabbits often entail the destruction 
of individual burrows, measuring of the vegetation community and other 
site characteristics immediately surrounding burrow systems, and/or 
disturbance to the general area occupied by colonies (Janson 1946; 
Bradfield 1974; Green 1978; Wilde 1978; Gahr 1993; Gabler 1997; 
Rauscher 1997).
    It is unlikely that any of the above activities alone have played a 
significant role in the long-term population decline and range 
reduction of the Columbia Basin pygmy rabbit. However, due to the 
vulnerability of the extant population, any source of mortality that 
does not contribute directly to efforts to conserve the remaining wild 
and captive portions of the Columbia Basin pygmy rabbit population may 
contribute to its extirpation.
    C. Disease or predation. Pygmy rabbits often harbor a high parasite 
load (Gahr 1993; WDFW 1995). 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 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 (Davis 1939; Gahr 1993). However, 
recent evidence of plague found in a coyote in Sagebrush Flat has 
raised concern (WDFW 2001a). The potential for disease outbreaks within 
the remaining wild and captive portions of the Columbia Basin pygmy 
rabbit population remain, particularly where the population is stressed 
by predation and lack of adequate nutrition. The level of risk from 
disease to the Columbia Basin population segment is currently being 
investigated (WDFW 2001a).
    Predation is thought to be a major cause of mortality among pygmy 
rabbits (Green 1979; Wilde 1978). While pygmy rabbits have adapted to 
the presence of a wide variety of predators that occur throughout their 
historic distribution (Janson 1946; Gashwiler et al. 1960; Green 1978; 
Wilde 1978; WDFW 1995), the threat of predation on the single extant 
population is great. Predation is not likely to represent a significant 
threat to relatively large, well-distributed pygmy rabbit populations. 
However, due to the extremely small size and localized occurrence of 
the Columbia Basin pygmy rabbit population, reducing or eliminating 
predation may play a significant role in conservation efforts for the 
remaining wild and captive portions of this population segment.
    D. Inadequacy of existing regulatory mechanisms. The 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 1995). However, illegal or 
incidental shooting of 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.
    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, and 
recovery of listed species may not be assured through management 
actions undertaken solely on private lands.
    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). 
However, these measures are not specifically promulgated for the 
protection of the Columbia Basin pygmy rabbit, and there are few other 
mechanisms that regulate grazing practices or the conversion of native 
habitats on privately owned lands.
    E. Other natural or human-caused factors affecting the species 
continued existence. Presently, the primary threats to the Columbia 
Basin pygmy rabbit population are associated with its extremely small 
size, limited distribution, and level of fragmentation (see Reasons for 
Emergency Determination). Small populations are susceptible to random 
weather events (e.g., severe storms, drought, and extended cold 
spells), changes in cover and food resources, disease outbreaks, 
altered predation or parasite populations, and fire. Small populations 
are also more susceptible to demographic and genetic problems (Caughly 
and Gunn 1996). These threat factors, which may act in concert, include 
natural variation in survival and reproductive success of individuals, 
chance imbalanced of sex ratios, changes in gene frequencies due to 
genetic drift, and lack of genetic diversity caused by inbreeding. Due 
to these combined influences, and its inability to be ``rescued'' by 
nearby populations should it become extirpated, the Columbia Basin 
pygmy rabbit population is currently believed to be below the level 
necessary to ensure its long-term viability (WDFW 1995).
    Conclusion of Status Evaluation. Based upon our evaluation of the 
above five factors that may threaten the Columbia Basin DPS of the 
pygmy rabbit, using the best scientific and commercial data available, 
we have determined the DPS to be in danger of extinction. The recent 
loss of populations within the DPS, the very small number of 
individuals within the remaining single wild population, and the 
threats to this population concerned us to the extent that we decided 
to further evaluate the status of this DPS and to consider an emergency 
listing, as an endangered species. This further evaluation of the DPS's 
status is discussed below.

Reasons for Emergency Determination

    Under section 4(b)(7) of the Act, we must consider development of 
an emergency rule to list a species if threats to the species 
constitute an emergency posing a significant risk to its well-being. 
Such an emergency listing expires 240 days following its publication in 
the Federal Register unless, during the 240-day period, we develop a 
final rule to list the species under our normal listing procedures. 
Below, we discuss the reasons why emergency listing of the Columbia 
Basin pygmy rabbit as endangered is necessary. In accordance with the 
Act, we will withdraw this emergency rule

[[Page 59746]]

if, at any time after its publication, we determine that substantial 
evidence does not exist to warrant such a rule.
    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. In addition to the relatively large-scale 
impacts to native shrub steppe habitats, various other human-caused and 
naturally occurring impacts of lesser magnitude now pose significant 
and imminent risks to this population segment. Due to the combined 
influence of the following threats-environmental stochasticity and 
catastrophe, predation, disease, and reduced genetic fitness-
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.

Environmental Stochasticity and Catastrophes

    Environmental stochasticities (random events) include the bad 
winters, resource failures, plagues of predators, and such that deliver 
shocks to populations. If a population is large enough, then such a 
shock can be withstood, although mortality within the population may be 
high. Often the population can rebound over time and recover its 
population numbers, either through birth or immigration from nearby 
populations. In the case of the Columbia pygmy rabbit, however, the 
size of the extant population is too small to withstand shock, even a 
small one, and be able to rebound; moreover, no neighboring population 
exists to ``rescue'' it through immigration.
    While there are numerous examples of possible stochastic events 
that could affect the Columbia pygmy rabbit, fire has already had a 
catastrophic effect on the species and remains a real threat to the 
last remaining population. Fire was implicated in the loss of the only 
pygmy rabbit colony ever recorded in Benton County, Washington, in 1979 
(WDFW 1995), and was directly associated with the recent loss of one of 
the few remaining colonies in Douglas County in 1999 (WDFW 2001b). The 
WDFW has taken measures to reduce the risk from fire at the Sagebrush 
Flat site (e.g., constructing firebreaks). However, unimproved road 
access and informal recreational activities provide continuing sources 
(e.g., people and vehicles) of uncontrolled fires at Sagebrush Flat 
(WDFW 1995). Due to the population's small size, restriction to one 
known site in the wild, and reliance on relatively tall, dense stands 
of sagebrush, natural and human-caused fire represents a significant 
threat to the Columbia Basin pygmy rabbit in the wild.
    While plague is common in other Leporid species, it is not known in 
pygmy rabbits. However, evidence of plague was reported in a coyote 
taken from the site of one of the recently extirpated pygmy rabbit 
colonies (WDFW 2001a). The potential occurrence of plague in this 
colony is currently 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 diseases 
and their possible control in wild and captive populations of pygmy 
rabbits (C. Brand, National Wildlife Health Center, pers. comm., 2001). 
Because so few Columbia Basin pygmy rabbits remain, disease epidemic 
remains a significant threat to both the wild and captive portions of 
this population segment.
    Emergency listing the Columbia Basin pygmy rabbit will increase 
regulatory efficiency in favor of protection for the species from 
stochasticity and the funding to support immediate recovery activities 
necessary for the species' survival. Protections could include 
increased population numbers and distribution in the wild to withstand 
catastrophe, and control of the sources of stochasticity and 
catastrophe where possible.

Predation

    Populations of pygmy rabbits have coexisted with various levels of 
grazing throughout their historic range for many years (WDFW 1995). 
However, due to the extremely low number and restricted distribution of 
Columbia Basin pygmy rabbits, any additional mortality or population 
stress associated with grazing practices potentially represents a 
significant threat to the security of the wild portion of this 
population segment. The effects of different grazing strategies on 
Columbia Basin pygmy rabbits are not well understood (WDFW 1995). 
However, Gahr (1993) found that male pygmy rabbits at the Sagebrush 
Flat site made longer movements, resulting in larger home ranges, 
during the breeding season 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 and N. 
Siegel, pers. comm., 2001). These results suggest that Columbia Basin 
pygmy rabbits may be more susceptible to predation in areas used for 
livestock grazing due to the necessarily longer movements away from 
cover and fewer burrows available for escape.
    Due to recent, confirmed evidence of coyote predation on pygmy 
rabbits, the WDFW implemented an emergency coyote control program 
during the fall-winter periods of 1998-1999 and 1999-2000 (WDFW 2000a). 
Coyotes were removed, by shooting, traps, and snares, over roughly 20 
square miles around and including the Sagebrush Flat site. The level of 
effort to control coyotes varied in different years and areas, and the 
efficacy of this program to protect the Columbia Basin pygmy rabbit is 
unknown. A variety of other avian and terrestrial predators may occur 
on sites currently occupied by the Columbia Basin pygmy rabbit. Because 
of the relatively restricted distribution of this population segment, 
combined with potential impacts from livestock grazing (above), 
predators may have a reduced search area or increased success rate for 
pygmy rabbits at these sites.
    Within the captive breeding population sites of the Columbia Basin 
pygmy rabbit, several measures (e.g., double fencing and monitoring) 
have been taken to reduce the risk of predation (L. Shipley and R. 
Sayler, WSU, pers. comm., 2001). However, while the risk has been 
reduced, currently only a single captive-rearing facility is in 
operation and the potential for predators to access some of the outdoor 
cages at this facility remains.
    Even low levels of predation represent a significant risk to the 
immediate security of both the wild and captive portions of this 
species. Emergency listing of the Columbia Basin pygmy rabbit as 
endangered will increase the regulatory protections and resources for 
predator control and other forms of range management until this 
population can withstand ``normal'' predation pressure.

Viability, Fitness

    Genetic indices indicate that the Columbia Basin pygmy rabbit has 
significantly less genetic diversity than the remainder of the taxon. 
In addition, this population segment has undergone an accelerated loss 
of genetic diversity since the mid-1900s. Severe loss of genetic 
diversity may make the Columbia Basin pygmy rabbit more susceptible to 
extinction due to inbreeding depression. Reduced genetic diversity and 
the relatively few family lineages remaining in the Columbia Basin 
pygmy rabbit population also may complicate captive breeding strategies

[[Page 59747]]

conducted to reestablish a minimum effective population size (i.e., the 
number of individuals contributing to reproduction). Ultimately, an 
appropriate effective population size will help to ensure the 
maintenance and enhancement of the genetic heterogeneity still present 
within this population segment (K. Warheit, pers. comm., 2001).
    Reproductive fitness is not only a function of genetic health, 
however; nutritional stress also may have a devastating effect on 
reproductive fitness and the overall viability of a population, 
particularly in the defense of diseases and plagues; animal populations 
are ultimately limited by the capacity of the environment to support 
them. The preliminary results of an ongoing study indicate that pygmy 
rabbits occupying sites where cattle grazing occurs may have a greater 
proportion of their spring and summer diets composed of sagebrush as 
opposed to the grasses that they require at this time of year, which is 
usually as much as 40 percent (L. Shipley and N. Siegel, pers. comm., 
2001). This result provides support for the contention that livestock 
may compete directly with pygmy rabbits for available forage (Green and 
Flinders 1980b; Rauscher 1997), thus causing the rabbits to become 
nutritionally stressed at a time when they require grass in their diet 
or the population level to become lower than the land would support 
without the influence of livestock.

Summary of Emergency Determination

    Due to the extremely small size of the Columbia Basin pygmy rabbit 
population, even a low level of mortality due to stochastic events, 
disease, nutritional stress, and predation represents a significant 
risk to the immediate security of both the wild and captive portions of 
the species. Emergency listing of the Columbia Basin pygmy rabbit as 
endangered will increase the regulatory protections and resources 
available to the species in predator control and other forms of range 
management that are designed to improve the nutritional capacity of the 
habitat in favor of the pygmy rabbit. Recovery of the Columbia Basin 
pygmy rabbit is dependent upon a self-sustaining wild population that 
can withstand the threats that could lead to extinction. 
Reestablishment, therefore, of a wild population through the use of a 
rigorous captive propagation program is a necessary step towards 
recovery.

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 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 a species at the time it is listed, upon a determination 
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 and its implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
the Secretary of the Interior (Secretary) designate critical habitat at 
the time the species is determined to be endangered or threatened. The 
implementing regulations 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. The Secretary may exclude any area from critical 
habitat if she determines 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 solicit this information in the 
proposed rule (see Public Comments Solicited section), published in 
this same issue of the Federal Register. 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 protect the Columbia 
Basin pygmy rabbit and its habitat through section 7 consultations to 
determine whether Federal actions are likely to jeopardize the 
continued existence of the species, through the recovery process, 
through enforcement of take prohibitions under section 9 of the Act, 
and through the section 10 process for activities on non-Federal lands 
with no Federal nexus.

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 encourages conservation 
actions by Federal, State, and tribal agencies, non-governmental 
conservation groups, and private individuals. The Act provides for 
potential land acquisition and cooperation with the States and requires 
that recovery actions be carried out for listed species. Below, we 
discuss the requirements of Federal agencies, considerations for 
protection and conservation actions, and the prohibitions against 
taking and harm for the Columbia Basin pygmy rabbit.
    Section 7(a) of the Act 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 when 
it is designated. Federal agencies are required to confer with us on 
any action that is likely to jeopardize the continued existence of a 
proposed species or result in destruction or adverse modification of 
proposed critical habitat. When a species is listed as threatened or 
endangered, Federal agencies must ensure that the activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species, or to destroy or adversely 
modify its critical habitat. If a Federal action may affect a listed 
species or its critical habitat, the responsible Federal agency must 
enter into consultation with us. Federal agency actions that may 
require consultation for the Columbia Basin pygmy rabbit include, but 
are not limited to, those within the jurisdictions of the U.S. Fish and 
Wildlife Service, Bureau of Land Management, Bureau of Reclamation, 
Natural Resources Conservation Service, and Farm Service Agency.
    We believe that protection and recovery of the Columbia Basin pygmy 
rabbit, in both wild and in captive breeding populations, will require 
reduction of the threats from uncontrolled fire, excessive livestock 
grazing, altered predation patterns, disease, 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

[[Page 59748]]

for any management actions or scientific investigations designed to 
address these threats or their potential impacts.
    Listing the Columbia Basin pygmy rabbit provides for the 
development and implementation of a recovery plan for the species. This 
plan will bring together Federal, State, and local efforts for 
conservation of the species. A recovery plan will establish a framework 
for agencies to coordinate their recovery efforts. The plan will set 
recovery priorities and estimate the costs of the tasks necessary to 
accomplish the priorities. It will also describe the site-specific 
management actions necessary to achieve conservation and survival of 
the species.
    Listing will require us to review and provide direction or guidance 
on any actions that may affect the Columbia Basin pygmy rabbit on lands 
or activities under Federal jurisdiction, State plans developed 
pursuant to section 6 of the Act, scientific investigations and efforts 
to enhance the propagation or survival of the population segment 
pursuant to section 10(a)(1)(A) of the Act, and Conservation Plans 
developed for non-Federal lands and activities pursuant to section 
10(a)(1)(B) of the Act.
    Considerations for management actions and scientific investigations 
to 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 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 watering and salting, loading and 
transport facilities, exclusion fencing, and removal;
    (3) 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;
    (4) Disease: Identification and control of potential disease and 
disease vectors in wild and captive portions of the population;
    (5) Capture, Husbandry, and Release: Development of protocols for 
capture and handling, establishment of multiple holding facilities for 
captive stock, inventory and evaluation of appropriate release sites, 
and development of release protocols;
    (6) Genetics: Identification of additional genetic markers, 
implementation of an appropriate breeding scenario, and establishment 
of a minimum effective population for captive breeding and release 
efforts.
    The Act sets forth a series of general prohibitions and exceptions 
that apply to all endangered wildlife species. The prohibitions 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 endangered wildlife 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. 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 at the time 
a species is listed, 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 a listing on 
proposed and ongoing activities within a species' range. For the 
Columbia Basin pygmy rabbit, activities that we believe are unlikely to 
result in a violation of section 9 include:
    (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 this 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 when the action 
is conducted in accordance with 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; and
    (4) Any indidental 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. Non-Federal applicants design a conservation 
plan (HCP) for the species and apply for an incidental take permit. 
These are developed for listed species and are designed to minimize and 
mitigate impacts to the species to the greatest extent practicable.
    Activities that we believe could potentially result in a violation 
of section 9 include, but are not limited to:
    (1) Activities authorized, funded, or carried out by Federal 
agencies (e.g., land exchanges, land clearing, prescribed burning, 
grazing, pest control, utility line or pipeline construction, mineral 
and housing development, off-road vehicle use, recreational trail and 
campground development, and road construction) that may affect the 
Columbia Basin pygmy rabbit or its critical habitat when such 
activities are not conducted in accordance with an incidental take 
statement issued under section 7 of the Act;
    (2) 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;
    (3) Activities that directly or indirectly result in the death or 
injury of Columbia Basin pygmy rabbits, or that modify occupied habitat 
and kill or injure them by significantly impairing their essential 
behavioral patterns (e.g., shooting, poisoning, habitat conversion, 
grazing, road and trail construction, water development and 
impoundment, mineral extraction or processing, off-road vehicle use, 
and unauthorized application of herbicides or pesticides in violation 
of label restrictions). Otherwise lawful activities that incidentally 
take Columbia Basin pygmy rabbits will require a permit under section 
10(a)(1)(B) of the Act.
    Questions regarding specific activities should be directed to our 
Upper Columbia Fish and Wildlife Office (see ADDRESSES section). 
Requests for copies of the regulations regarding listed wildlife, 
including 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 Northeast 11th Avenue, Portland, Oregon 
97232-4181 (telephone (503) 231-2063; facsimile (503) 231-6243).

[[Page 59749]]

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined in the National Environmental 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 other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance number 1018-0094. 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 control number. For additional 
information concerning permit and associated requirements for 
endangered species, see 50 CFR 17.21 and 17.22.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
This rule is not expected to significantly affect energy supplies, 
distribution, or use. Although this rule is a significant regulatory 
action under Executive Order 12866, it 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 emergency 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 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
----------------------------------------------------------     Historic Range      where endangered or       Status         When     Critical   Special
            Common name                Scientific name                                  threatened                         listed    habitat     rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
              Mammals
 
 
                  *                   *                  *                  *                  *                  *                  *
Rabbit, Columbia Basin pygmy......  Brachylagus            U.S.A. (Western        U.S.A. (WA--Douglas,   E               .........         NA         NA
                                     idahoensis.            conterminous States).  Grant, Lincoln,
                                                                                   Adams, Benton
                                                                                   Counties).
 
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    Dated: November 21, 2001.
Marshall P. Jones, Jr.,
Acting Director, Fish and Wildlife Service.
[FR Doc. 01-29615 Filed 11-29-01; 8:45 am]
BILLING CODE 4310-55-P