[Federal Register: June 23, 2000 (Volume 65, Number 122)]
[Proposed Rules]               
[Page 39117-39119]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AF30

Endangered and Threatened Wildlife and Plants; Proposed Special 
Regulations for the Preble's Meadow Jumping Mouse; Availability for 
Comment of the Draft Record of Compliance and Reopening of Comment 

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability; reopening of comment 


SUMMARY: We, the Fish and Wildlife Service (Service), announce the 
availability of a draft Record of Compliance (ROC) for a previously 
proposed section 4(d) rule under the Endangered Species Act (ESA) for 
the Preble's meadow jumping mouse (Preble's). The proposed section 4(d) 
rule, published in the Federal Register on December 3, 1998 (63 FR 

[[Page 39118]]

prescribes the conditions under which take of the Preble's would or 
would not be a violation of section 9 of the ESA. This draft ROC 
describes how the proposed section 4(d) rule complies with various 
statutory, Executive Order, and Departmental Manual requirements 
applicable to rulemaking. We are entertaining comments on the draft 
ROC, and on the proposed section 4(d) rule as it relates to the ROC.

DATES: Send your comments on the draft ROC, and the section 4(d) rule 
as it relates to the ROC, to us (see ADDRESSES section) by July 24, 

ADDRESSES: To obtain a copy of the draft ROC, contact Leroy Carlson, 
Field Supervisor, Colorado Fish and Wildlife Office, U.S. Fish and 
Wildlife Service, 755 Parfet Street, Room 361, Lakewood, CO 80225. Send 
your comments to Leroy Carlson at the same address. You may examine the 
comments we receive by appointment during normal business hours in Room 
361 at the above address.

FOR FURTHER INFORMATION CONTACT: Leroy W. Carlson, Field Supervisor, 
Colorado Fish and Wildlife Office (see ADDRESSES section), telephone 



    The Preble's was designated as a threatened species under the ESA 
on May 13, 1998 (63 FR 26517). As a result, all of the section 9 
prohibitions of the ESA (16 U.S.C. 1538) against take of the species 
are applicable across the whole Preble's range. These prohibitions, in 
part, make it illegal for any person subject to the jurisdiction of the 
United States to ``take'' any listed wildlife species, that is, to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect any 
threatened or endangered species or to attempt to engage in any such 
conduct. However, on December 3, 1998 (63 FR 66777), we published a 
proposed ``special rule'' under section 4(d) of the ESA to replace the 
general prohibitions against take of the Preble's with special measures 
tailored to the conservation of the species. Under the special rule as 
we originally proposed it, all of the section 9 prohibitions against 
take of the Preble's would still be in effect, except as specifically 
exempted in the special rule. Since then, as a result of comments 
received on the proposed rule, we have decided that when we finalize 
the special rule, we will not include the elements of the proposed rule 
that would establish different standards for areas depending on whether 
or not they are included in Mouse Protection Areas or Potential Mouse 
Protection Areas. Those elements were included in Sec. 17.40(k)(3), 
(4), and (6) through (12) of the proposed rule. As a result, this ROC 
analyzes the effects of only the four rangewide exemptions contained in 
the remainder of the special rule.
    The rangewide exemptions in the special rule would exempt four 
types of activities from the take prohibitions--rodent control, ongoing 
agricultural activities, landscaping, and activities associated with 
water rights. These exemptions would provide affected landowners with 
economic benefits by allowing activities on their land that may have 
been prohibited or limited by section 9 as a result of the listing of 
the Preble's. As proposed, the rule would be in effect for 18 months, a 
period we then considered long enough to allow interested parties to 
develop Habitat Conservation Plans (HCP) to obtain authorization for 
take of the Preble's under section 10 of the ESA. However, as the 
result of comments received on the proposal, we now intend when we 
finalize the special rule for it to be in effect for 36 months, a 
period long enough not only for completion of county-wide HCP's now in 
process, but also for completion of a recovery plan and other 
conservation efforts for the Preble's.
    We have prepared an economic analysis and made other determinations 
about the potential effects of the four rangewide exemptions contained 
in the proposed special rule. These determinations are described in the 
ROC and are summarized below. We have determined that the economic 
effect of the rule would be a benefit to landowners and the economy. 
The rule would allow certain activities to continue, avoiding costs 
that may be associated with abstaining from conducting these activities 
in order to avoid take of the Prebles. The following paragraphs provide 
a summary of the contents of the ROC for each of the four exemptions 
provided by the proposed special rule:
    (1) Rodent control. The proposed rule provides that any take 
resulting from rodent control within 10 feet of, or inside, any 
structure would not be prohibited. Without the rule, those undertaking 
rodent control adjacent to structures within Preble's range may decide 
to have surveys done to determine whether the Preble's is present and 
whether the potential for unauthorized take exists. With the rule, the 
costs of surveys and measures to avoid take would not be incurred. 
Because Preble's are rarely found near or inside structures, the 
economic effect of this exemption will be insignificant and the effect 
on the species will be insignificant.
    (2) Ongoing agricultural activities. The proposed rule provides 
that established, ongoing agricultural activities would be exempted. 
Continuation of existing row crop activities within cultivated areas is 
not believed to impact the Preble's. However, activities associated 
with hay production and grazing in the habitat occupied by Preble's may 
have some effect. The primary benefit of the rule to landowners and 
businesses is in providing assurances that they will be able to 
continue existing agricultural practices.
    Hay Production--The proposed rule provides that any take resulting 
from established, ongoing haying would not be prohibited. The costs of 
surveys and modifications of timing or harvest methods or leaving areas 
unmowed to avoid take therefore would not be incurred. The yearly cost 
of surveys is difficult to quantify; the cost of leaving areas unmowed 
(the worst-case scenario) within the range of Preble's in Colorado and 
Wyoming would be about $3,441,000. Although Preble's may use hay fields 
(i.e., native grasses and alfalfa) to a limited degree if the hay field 
is adjacent to or in suitable riparian habitat, hay production in these 
areas is not expected to significantly affect the species.
    Grazing--The proposed rule provides that any take resulting from 
existing grazing regimes would not be prohibited. In many locations, 
populations of the Preble's have been maintained with the existing 
grazing regime. While some take of the Preble's, and possibly some 
limiting of local population size, may be associated with continued 
grazing, the overall effect to Preble's of ongoing grazing covered by 
this exemption is minimal. With the rule, the costs of surveys and 
modifications of grazing regimes to avoid take would not be incurred; 
however, these costs are expected to be minimal because costs to avoid 
take are insignificant.
    (3) Landscaping--The rule provides that any take resulting from 
activities undertaken to maintain existing landscaped areas is not 
prohibited. This exemption will avoid costs associated with surveys and 
modification of landscape maintenance to avoid take. Because the 
Preble's rarely uses landscaped areas, this exemption will have an 
insignificant economic effect and an insignificant effect on the 
    (4) Water rights. The proposed rule provides that diversion of 
water associated with existing water rights would be exempted. In 
Colorado, these diversions are defined through decrees

[[Page 39119]]

for absolute water rights granted by any of the Colorado water courts. 
In Wyoming, these diversions are defined through permits that have been 
awarded a final certificate of appropriation by the Office of the State 
Engineer. This exemption also includes maintenance of existing wells 
that provide sources for water right usage. Without the rule, 
evaluation of the effects of diversions on occupied streams would be 
needed. This evaluation might require limited surveys in locations 
where Preble's presence is unknown. In areas where ongoing stream 
diversions are believed to be flooding habitat or reducing water flows 
within streams, some alterations in timing or quantity of diversion 
might be needed to prevent take. In Colorado, if water was needed for 
listed species, the effects of that allocation would be spread across 
all water rights holders. In Wyoming, there is no history of allocating 
water for listed species; however, water rights holders that would be 
affected by Preble's primarily would be those conducting haying 
operations, and the economic effects associated with these changes to 
haying operations have been discussed above; no additional effect would 
result from water rights issues. Therefore, this exemption would create 
no significant additional economic benefits.
    In conclusion, the ongoing agricultural activities exemption would 
be the only activity with a measurable economic effect. This exemption 
would create significant benefits to landowners producing hay. Without 
the rule, under a worst-case analysis, concerns about the effects of 
section 9 could lead to a cessation of all harvest of hay on the 
affected acres, and landowners would receive no income from those 
lands. With the rule, harvest could continue without restrictions, 
generating as much as an estimated $3,441,000 annual net income for the 
landowners, a beneficial effect of the rule.
    We are seeking comment from the public on the draft ROC, including 
our economic analysis of the potential effects of the proposed special 
rule. We are also reopening the comment period on our proposed special 
rule pertaining to the Preble's meadow jumping mouse with the changes 
we intend to make in it, as described here, as it pertains to the ROC. 
We will consider the comments as we proceed with completing the ROC and 
in any further rulemaking on this issue.


    Section 4(d) of the Endangered Species Act of 1973, as amended (16 
U.S.C. sections 1531 to 1544), states that whenever any species is 
listed as a threatened species pursuant to subsection (c), we must 
issue such regulations as is deemed necessary and advisable to provide 
for the conservation of such species.

    Dated: June 2, 2000.
Stephen C. Saunders,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 00-15782 Filed 6-22-00; 8:45 am]