[Federal Register Volume 68, Number 43 (Wednesday, March 5, 2003)]
[Rules and Regulations]
[Pages 10388-10409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5076]


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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: [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 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).
BILLING CODE 4310-55-P

[[Page 10396]]

[GRAPHIC] [TIFF OMITTED] TR05MR03.027

BILLING CODE 4310-55-C
    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