2001 Federal Register, 66 FR 28125; Centralized Library: U.S. Fish & Wildlife Service

[Federal Register: May 22, 2001 (Volume 66, Number 99)]
[Rules and Regulations]               
[Page 28125-28131]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22my01-16]                         

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AF30

 
Endangered and Threatened Wildlife and Plants; Final Special 
Regulations for the Preble's Meadow Jumping Mouse

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Preble's meadow jumping mouse (Zapus hudsonius preblei) 
was listed as a threatened species under the Endangered Species Act 
(Act) of 1973, as amended, on May 13, 1998 (63 FR 26517). At the time 
the Preble's was listed, a special rule for the conservation of the 
Preble's was not promulgated; therefore, virtually all of the 
restrictions under section 9 of the Act became applicable to the 
species. A proposed special rule was published in the Federal Register 
on December 3, 1998 (63 FR 66777). This special rule is finalized in a 
modified form that includes some but not all of the provisions 
previously proposed. The rule establishes protective regulations 
pursuant to section 9 of the Act. Its duration is 36 months, during 
which time more comprehensive recovery approaches will be pursued.

DATES: This rule is effective May 22, 2001 through May 22, 2004.

ADDRESSES: The complete file for this rule is available for public 
inspection, by appointment, during normal business hours at the U.S. 
Fish and Wildlife Service's Colorado Field Office, 755 Parfet Street, 
Suite 361, Lakewood, Colorado 80215.

FOR FURTHER INFORMATION CONTACT: In Colorado--contact LeRoy Carlson, at 
the above address or telephone 303/275-2370. In Wyoming--contact Mike 
Long, Field Supervisor, Cheyenne, Wyoming, at telephone 307/772-2374.

SUPPLEMENTARY INFORMATION:

Background

    The Preble's meadow jumping mouse (Zapus hudsonius preblei), a 
subspecies of the meadow jumping mouse (Zapus hudsonius), occurs only 
along the Rocky Mountain-Great Plains Interface (the Front Range) of 
eastern Colorado and Southeastern Wyoming. The final rule listing the 
Preble's as a threatened species under the Act was published in the 
Federal Register on May 13, 1998 (63 FR 26517). Section 4(d) of the Act 
(16 U.S.C. 1533 (d)) provides that, whenever a species is listed as a 
threatened species, the Secretary of the Department of the Interior 
will issue regulations deemed necessary and advisable to provide for 
the conservation of the species. This is done in either of two ways.
    First, the Act authorizes imposition of take prohibitions to 
endangered species. We, the Fish and Wildlife Service, have issued 
regulations (50 CFR 17.31) that generally apply to threatened wildlife 
virtually all the prohibitions that section 9 of the Act (16 U.S.C. 
1538) establishes with respect to endangered wildlife. These universal 
prohibitions, in part, make it illegal for any person subject to the 
jurisdiction of the United States to ``take'' any listed wildlife 
species, i.e., 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 (16 U.S.C. 1532 (19)).
    Second, our regulations for threatened wildlife also provide that a 
``special rule'' under section 4(d) of the Act can be tailored for a 
particular threatened species. In that case the general regulations 
applying most section 9 prohibitions do not apply to that species, and 
the special rule contains the prohibitions (and exemptions) necessary 
and appropriate to conserve that species.
    At the time the Preble's was listed, we did not promulgate a 
special section 4(d) rule; therefore, the section 9 prohibitions, 
including the take prohibitions, became applicable to the species. On 
December 3, 1998, a proposed special rule identifying specific 
circumstances under which section 9 prohibitions would not apply to the 
Preble's was published in the Federal Register (63 FR 66777). This 
proposal initiated a 60-day public comment period, which closed 
February 1, 1999. The public comment period was extended for an 
additional 45 days through March 5, 1999 (64 FR 4607), and was reopened 
from March 16 through April 30, 1999 (64 FR 12924).
    Briefly, the proposed special rule provided exemptions from section 
9 prohibitions for--(1) all activities outside of specified Mouse 
Protection Areas (areas where Preble's had been documented) and 
Potential Mouse Protection Areas (areas judged to have high potential 
to support Preble's); (2) rodent control, ongoing agriculture, 
maintenance and replacement of existing landscaping, and existing uses 
of water anywhere within the Preble's range; and (3) under specified 
standards, alteration of up to 4 percent of Mouse Protection Areas and 
Potential Mouse Protection Areas as approved by State or local 
government. After review of comments received, this proposed special 
rule has been finalized in a modified form, adopting only the second 
exemption listed above for rodent control, ongoing agriculture, 
maintenance and replacement of existing landscaping, and existing uses 
of water anywhere within the Preble's range.
    We anticipate that this rule will prohibit actions that threaten 
the Preble's to the extent necessary to provide for the conservation of 
the

[[Page 28126]]

Preble's. The rule also provides flexibility to private landowners for 
ongoing activities that will not impede the conservation of the 
species. We also believe that this rule will garner support of State 
and local governments, private landowners, and other interested parties 
and contribute to a lasting, cooperative approach for the long-term 
conservation of the species.
    This rule is best understood in the context of other regulations 
and actions, already in place or in development, to provide for 
conservation of the Preble's. First, it is important to understand that 
an activity prohibited under the general regulations might still be 
allowed under section 10 of the Act. That section provides for a person 
to obtain from us, in appropriate circumstances, a permit allowing the 
``incidental'' taking of Preble's. One of the purposes of this rule is 
to make, in advance, general decisions that certain types of activities 
are consistent with the conservation of the Preble's, without requiring 
people to seek additional section 10 permits authorizing those 
activities. Additional activities that result in take of Preble's that 
are not exempted by this special rule still can be permitted by the 
Service under section 10 of the Act.
    Currently, the State of Colorado, the Service, and various local 
governments in Colorado and Wyoming are working together to develop 
plans to conserve the Preble's and its habitat. This collaborative 
approach is expected to result in the development of Habitat 
Conservation Plans and applications to the Service for incidental take 
permits under section 10 of the Act. These Habitat Conservation Plans 
will provide an important component of a lasting, effective, and 
efficient conservation and recovery program for the Preble's.
    We are committed to development of a recovery plan for the Preble's 
that achieves long-term conservation and development solutions. We 
believe that a recovery program that integrates both biological as well 
as social factors will have the highest chance of success. One of the 
purposes of this special rule is to foster cooperation among the 
Service, the States, local governments, and the private sector in 
pursuing recovery of the Preble's.
    The second important component of the context for this special rule 
is that Federal agencies are required under section 7 of the Act to 
utilize their authorities to conserve listed species and to consult 
with the Service to ensure that their actions are not likely to 
jeopardize the Preble's. For consultations that involve the use of 
Federal land, we expect that those lands will be managed in furtherance 
of the conservation of the species to the maximum extent possible. 
Other types of section 7 consultations involve actions that are similar 
to those that are considered under the section 10 process. For example, 
many of the activities likely to affect Preble's undertaken outside of 
Federal land, but wholly or partly in wetlands, will be subject to 
permitting requirements of the Clean Water Act, such as section 404 
permits issued by the Army Corps of Engineers.
    Third, a variety of Federal, State, and local programs are 
available to help preserve the Preble's through the acquisition, 
preservation, and management of its habitat. These include the 
Service's Partners for Fish and Wildlife Program, the Natural Resource 
Conservation Service's wetland/riparian habitat protection programs, 
grant programs administered by Great Outdoors Colorado, city and county 
open space programs, and activities of local land trusts. In 
particular, our Partners for Fish and Wildlife Program has proven to be 
an especially effective approach for wildlife conservation on 
agricultural lands by providing funding for restoration of wetlands and 
riparian habitats.

Summary of Comments and Recommendations

    In the December 3, 1998, proposed 4(d) rule and associated 
notifications, and in subsequent notices to extend or reopen the public 
comment period, we asked all interested parties to submit comments on 
the proposed rule. We held two public meetings on December 16, 1998, in 
Lakewood, Colorado. The proposed rule was explained, followed by a 
question and answer session. Attendance at the afternoon session 
totaled 104 individuals, while attendance at the evening session 
totaled 24. We received 614 comment letters in response to the proposed 
4(d) rule, including comments from 23 municipal and county governments, 
14 environmental organizations, and 60 development, irrigation, and 
ranching-related organizations. Comments also were received from a 
member of the Wyoming congressional delegation and from the Governors 
of Wyoming and Colorado. Almost half of all letters received were 
associated with various letter-writing campaigns that reflected the 
same or very similar content.
    Written comments, and oral statements presented in the public 
meetings or received during the comment periods, that are specific to 
the proposed rule are addressed in the following summary. Comments of a 
similar nature are grouped under a number of general issues.

Issues and Discussion

    Issue 1--The proposed duration of this temporary rule, 18 months, 
may not provide enough time to develop Habitat Conservation Plans and 
other long-term strategies to conserve the Preble's.
    Response--Based on the progress of ongoing efforts to develop 
Habitat Conservation Plans, we lengthened the duration of the rule to 
36 months. This should provide time not only for completion of Habitat 
Conservation Plans but for completion of a recovery plan and other 
conservation efforts for the Preble's. The level of take anticipated to 
occur from this rule within either an 18-month or 36-month period is 
not considered to be biologically significant to recovery of the 
Preble's.
    Issue 2--Refinement is needed in mapping Mouse Protection Areas and 
Potential Mouse Protection Areas that were developed in support of the 
proposed exemption for activities outside of likely Preble's habitat. 
Survey data that serve as a basis for the maps are scant, especially on 
private lands. Preble's use of habitat across its range has not been 
thoroughly studied. Proposed limits of the exemption as measured 
outward from occupied or potentially occupied streams and wetlands may 
be excessive or may be inadequate to include Preble's habitat. 
Designation of Mouse Protection Areas and Potential Mouse Protection 
Areas has been characterized by some as de facto designation of 
critical habitat.
    Response--Because of these and other issues, the proposed 
designation of Mouse Protection Areas and Potential Mouse Protection 
Areas and the proposed exemption for incidental take outside of such 
areas have been dropped from the final rule. We will continue to use 
the best science available to determine distribution, presence, and 
habitat requirements of the Preble's. We will make such information 
available through our Colorado and Wyoming Field Offices and our web 
page. Determinations of Preble's presence and potential for human 
activities to impact Preble's will continue to occur on a site-by-site 
basis. Detailed local information on Preble's may be further developed 
to support Habitat Conservation Plans.
    Issue 3--The proposed exemption to allow up to 4 percent of a Mouse 
Protection Area to be altered under a system of local review is 
considered by some as arbitrary and without firm scientific support. In 
addition, local government may not have the funds, expertise, or 
enforcement authority to

[[Page 28127]]

take on this responsibility. Local government also may assume increased 
liability under this exemption.
    Response--Because of these and other issues, this proposed 
exemption from take was dropped from the final rule.
    Issue 4--The proposed exemption for rodent control may be used as a 
means to eliminate Preble's from an area.
    Response--As with all exemptions in this rule, only incidental take 
of Preble's that meets the specific provisions of the rule is exempted. 
Purposeful take of Preble's would still be prohibited.
    Issue 5--Agriculture is often beneficial to the Preble's, and 
farmers and ranchers are good stewards of land. Flexibility to change 
agricultural practices within Preble's habitat is needed by farmers and 
ranchers, yet the proposed exemption would cover only established, 
ongoing activities.
    Response--The exemption for ongoing agriculture recognizes that 
certain agricultural practices have proven compatible with survival of 
Preble's. Changes in agricultural practices that are positive or 
neutral to the Preble's are unlikely to result in take. Recognizing 
that continuation of existing agricultural activities is likely to 
result in minimal levels of take, this rule exempts ongoing 
agricultural activities from take. New agricultural activities could 
significantly expand the area or degree of take, potentially having 
larger impacts to the species; therefore, take from new or expanded 
agricultural activities is not exempted in this rule. Under the 
appropriate circumstances, section 10 permits can be obtained to allow 
take of Preble's due to new or expanded agricultural activities.
    Issue 6--Exempted agricultural practices need to be better defined. 
A list of what is not exempted would be useful.
    Response--This rule exempts incidental take of Preble's that may 
result from ongoing agricultural activities. Ongoing agricultural 
activities would be considered those activities in place at the time of 
the 1998 listing of the Preble's. We provide this exemption because 
lands that are currently under agricultural production are believed to 
have minimal habitat for the Preble's, and because agricultural 
activities are being conducted in a manner that causes minimal take of 
Preble's. We are not providing exemption in situations where larger 
amounts of take may occur. Therefore, this exemption applies to 
practices customary and necessary for the continuation of existing 
agricultural production. It does not apply to new activities or to 
expansion of activities that change the existing activity footprint in 
size or location. New or expanded activities may remove or 
significantly alter habitat that is currently occupied by Preble's and, 
therefore, are not included in this exemption. Questions regarding 
application of this exemption to specific practices in Colorado may be 
addressed to our Colorado Field Office, and in Wyoming questions may be 
addressed to our Wyoming Field Office (see ADDRESSES and FOR FURTHER 
INFORMATION CONTACT sections).
    Issue 7--Practices such as crop rotation should be covered under 
the exemption for ongoing agriculture.
    Response--Actions that reflect regular past uses are considered 
ongoing. Crop rotation consistent with a past pattern would be exempted 
from take. The ability to document past use may be important if any 
changes result in take of Preble's.
    Issue 8--Exemptions from take should be provided when land enrolled 
in conservation reserve programs, that provides habitat for the 
subspecies, is later returned to agricultural production.
    Response--This rule does not exempt take when lands maintained for 
conservation under various government programs are returned to 
agricultural production. Returning lands to agricultural production 
after the period of time in which the lands were enrolled in a 
conservation reserve program represents a change in use. It would not 
be considered an ``existing'' agricultural activity and, therefore, 
would not qualify for the exemption for ``existing'' agricultural uses. 
However, take associated with the return of lands from conservation 
reserve programs to agricultural production may still be authorized 
under the Habitat Conservation Plan provisions of section 10(a)(1)(B) 
of the Act.
    Issue 9--The exemption from take for maintenance and replacement of 
existing landscaping also exempts maintenance and replacement of 
``related structures and improvements.'' The intent of this exemption 
should be explained.
    Response--Walkways, retaining walls, and other nonvegetative 
components of landscaping may be maintained and replaced as needed 
under this exemption. These structures do not normally provide habitat 
for the Preble's, and maintenance of such structures would likely 
result in minimal take, if any. ``Related structures and improvements'' 
should be viewed in the context of landscaping and not expanded to 
include houses, garages, or outbuildings. While maintenance or 
replacement of these larger structures would generally not result in 
take, on occasion such activity may entail a larger area and duration 
of disturbance, use of heavy machinery in the surrounding area, and 
staging of construction materials. In some circumstances, such activity 
could cause more than minimal take; therefore, while most of this type 
of activity would not result in any take, we have chosen not to exempt 
such activity due to those instances where take could be substantial.
    Issue 10--The rule does not specify an exemption from take for 
maintenance of roadsides through mowing, which may occur in or near 
Preble's habitat. Such activity could result in take of Preble's.
    Response--We agree that maintenance of roadsides could in some 
situations result in take, and if occupied habitat is removed as part 
of such activities, then the resulting take would probably be more than 
minimal. For this reason we have not included an exemption from take 
for roadside maintenance activities. As such activities are not usually 
undertaken by individuals, we encourage all jurisdictions that engage 
in maintenance mowing to modify such practices where Preble's may be 
present to avoid the likelihood of take, or to seek a section 10 permit 
when the potential for take cannot be avoided.
    Issue 11--Water utilization was identified as a factor leading to 
listing of the Preble's, but is being exempted under this rule.
    Response--Only take resulting from existing uses of water 
associated with perfected water rights is being exempted. Much as with 
agricultural activities, some existing patterns of water use appear 
compatible with maintenance of Preble's populations. In some locations, 
such as in water conveyance ditches, the Preble's exists only because 
of human manipulation of water flows. The relationship of water use and 
maintenance of the Preble's and its habitat is complex. During the 
period of this rule, existing patterns of water use will be exempted.
    Issue 12--Some respondents requested clarification on our 
interpretation of ``existing water uses'' and ``perfected water 
rights.''
    Response--An explanation has been added to the final rule which 
states that existing water uses refers to historical water use 
practices. In general, any change in water use practices that would 
require a change of water right or a change in a water use permit will 
not be exempted in the final rule.
    Issue 13--Several respondents requested a broader exemption for any 
water use permitted or decreed by State

[[Page 28128]]

governments. Many Colorado municipalities and water suppliers requested 
exemption for transfers of perfected water rights and exercise of 
conditional water rights.
    Response--We are not granting a range-wide exemption for water 
rights transfers, conditional water rights, and other water uses that 
are not considered ``perfected.'' These actions have a much higher 
potential to take Preble's than the exercise of perfected water rights. 
For example, exercise of conditional water rights could result in new 
flooding of Preble's habitat, and transfer of a historical irrigation 
right may result in abandonment of a ditch that supports Preble's 
habitat. We anticipate that exercise of most conditional water rights 
and transfers will not result in take of Preble's; therefore, in these 
cases no exemptions from take are needed. If take is likely from such 
changes, a process exists for pursuing a take permit under section 10 
of the Act.
    Issue 14--Many commentors requested exemption from take for 
maintenance of water supply ditches. Ongoing agriculture and use of 
perfected water rights are exempted from take. Logically, ditches must 
be maintained to convey water to support these activities (for example, 
from reservoirs to the agricultural fields). If water supply ditches 
that currently support Preble's are not maintained, they will 
ultimately cease to function. If abandoned, they will not convey water 
or support habitat of value to Preble's.
    Response--We are considering proposing an amendment to this rule 
that provides an exemption from take for certain maintenance practices 
on water supply ditches.
    Issue 15--An exemption from take for the control of noxious weeds 
may be appropriate. Currently, weed control programs in occupied or 
potential Preble's habitat are being curtailed for fear that they will 
be in violation of the Act. Ultimately, this may result in spread of 
noxious weeds that will, in turn, result in degradation of Preble's 
habitat.
    Response--We are considering proposing an amendment to this rule to 
provide an exemption from take for certain activities relating to 
control of noxious weeds.
    Issue 16--We received suggestions for additional range-wide 
exemptions from take covering a number of activities. A partial list 
includes exemptions for construction of trails, actions to promote 
public health and safety, construction and maintenance of 
infrastructure including utility lines and wastewater facilities, 
maintenance of roads and parking lots, and maintenance activities 
within waterways.
    Response--These activities have the potential for more than minimal 
amounts of take; therefore, we believe that these additional exemptions 
are not appropriate or consistent with the conservation of the 
Preble's. Under appropriate circumstances, permits could be obtained to 
allow take that may result from these activities. Some of these 
activities may be addressed through future Habitat Conservation Plans 
or section 7 consultations.
    Issue 17--Voluntary conservation efforts are sufficient to protect 
the Preble's on private lands.
    Response--This rule does not require any conservation measures for 
the Preble's nor does it prevent individuals from undertaking voluntary 
conservation measures. We support any parties who wish to undertake 
voluntary conservation measures and welcome discussions with any party 
who wishes to consider developing a conservation agreement for the 
Preble's or its riparian habitat. If the species' status can be 
improved and threats reduced as a result of voluntary conservation 
measures, then we may be able to consider removing the Preble's from 
the list of endangered and threatened species under the Act.
    Issue 18--The Service should provide updated maps of known Preble's 
locations and locations of unsuccessful trapping efforts on a web site 
accessible to the public.
    Response--We are investigating various means to make this 
information more readily available to the public. In the meantime, the 
most recent information on known Preble's distribution is available 
from our Colorado and Wyoming Field Offices. (See ADDRESSES and FOR 
FURTHER INFORMATION CONTACT sections.)
    Issue 19--The relationship of this rule to a future recovery plan 
for the Preble's should be explained.
    Response--This temporary rule contributes to the conservation of 
the Preble's and does not compromise the development of a recovery 
plan. We anticipate developing a recovery plan prior to the termination 
of this rule.
    Issue 20--The Service should provide for an accounting of take 
occurring under this rule.
    Response--This rule provides exemptions from take for specific 
activities and under limited circumstances. In our best professional 
judgment, the exemptions provided are consistent with the conservation 
of the species. The proposed exemptions are not tied to a specific 
threshold of what would, without the rule, be considered take. We 
prepared a Biological Opinion under section 7 of the Act to address the 
likely effects of this rule on the Preble's.
    Issue 21--The relationship of this rule to future Habitat 
Conservation Plans should be explained.
    Response--Exemptions provided by this rule are independent of any 
Habitat Conservation Plan that may be submitted to us. Similar 
activities may or may not be addressed in a Habitat Conservation Plan 
at the discretion of the entity developing the plan. We anticipate that 
comprehensive Habitat Conservation Plans will be developed for the 
Preble's during the 36-month duration of this rule.
    Issue 22--The relationship of this rule to review of Federal 
activities under section 7 of the Act should be explained.
    Response--This rule does not alter Federal agency responsibilities 
under section 7 of the Act. Federal agencies would be exempt from 
section 9 prohibitions on take from the activities covered by this 
rule; however, Federal agencies would not be relieved of any section 7 
responsibilities, even for activities exempted by this rule. Any 
Federal agency that funds, permits, or authorizes an activity that may 
affect Preble's would still be required to undergo section 7 
consultation, even if take from that activity is covered by the 
exemption in this rule.

Provisions of the Rule

Term of the Rule

    This rule will be effective for a period not to exceed 36 months 
from May 22, 2001. We expect that, during this time period, 
comprehensive Habitat Conservation Plans for the Preble's will be 
developed. Anytime during this 36 months, we could propose to extend 
this rule. Any proposal to extend the rule would be published in the 
Federal Register and would be made available for public review and 
comment.

Take Prohibitions

    Virtually all of the prohibitions under section 9(a) of the Act 
that apply to endangered species continue to apply to the Preble's, to 
the same extent that they apply to other threatened species under our 
general regulations, except that certain activities would be exempted. 
Except for the exemptions below, it is illegal for any person subject 
to the jurisdiction of the United States to take any Preble's (i.e., to 
harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect a 
Preble's or to attempt any of those actions). It would still be illegal 
to import or export, ship in interstate commerce in the course of 
commercial

[[Page 28129]]

activity, or sell or offer for sale in interstate or foreign commerce 
any Preble's, or to possess, sell, deliver, carry, transport, or ship 
any Preble's that have been taken illegally.

Exempt Activities

    The following activities are exempt from the general take 
provisions listed above, provided that the activities resulting in such 
take are conducted in accordance with the requirements identified in 
this special rule. These four exemptions apply anywhere within the 
Preble's range.
    a. Rodent control within 10 feet of or inside of any structure--
Preble's are generally not found in association with structures such as 
barns, houses, or other buildings. We believe that any Preble's 
mortality associated with trapping near these structures would be 
insignificant and that this exemption will promote public support for 
Preble's conservation efforts.
    b. Ongoing agricultural activities--This exemption applies to 
ongoing agricultural practices but does not apply to new agricultural 
practices that increase impacts to, or further encroach upon, Preble's 
habitat. For example, a change from existing grazing practices that 
would adversely impact Preble's habitat, or a change in mowing 
practices such as mowing hay closer to a stream supporting Preble's, 
would not be exempted from take provisions by this rule.
    Situations where Preble's populations coexist with ongoing 
agriculture may provide valuable insight into habitat conditions 
required by the Preble's and the specific types of grazing and farming 
practices that are compatible with the Preble's. We believe that the 
exemption for ongoing agricultural practices will provide a positive 
incentive for agricultural interests to engage in voluntary 
conservation activities and will remove some of the existing reluctance 
by private agricultural landowners to allow Preble's surveys on their 
lands. Surveys lead to a more complete understanding of the status and 
distribution of the species, especially within areas largely composed 
of privately owned farms and ranches. With this knowledge, our ability 
to develop an effective long-term recovery program will be enhanced.
    c. Maintenance and replacement of existing landscaping and related 
structures and improvements--Some existing landscaping activities, such 
as lawn-mowing and gardening associated with residential or commercial 
development, golf courses, and parks, have disrupted Preble's habitat 
in certain areas. However, because take associated with continued 
landscaping of an area is expected to be minimal, exempting these 
activities from take provisions is not expected to adversely affect 
Preble's conservation and recovery efforts.
    d. Existing uses of water associated with the exercise of perfected 
water rights under State law and interstate compacts and decrees--In 
Colorado, perfected water rights refers to uses of water that have been 
decreed as absolute water rights by any of the Colorado water courts. 
In Wyoming, perfected water rights refers to water uses that have been 
granted a permit and a final certificate of appropriation by the Office 
of the State Engineer. The cumulative effect of the development and 
exercise of water rights has impacted riparian communities and Preble's 
in some areas; however, the exercise of certain water rights and water 
development may benefit riparian communities and Preble's. Take 
associated with new water development is not exempted.
    Existing uses of perfected water rights are exempt only to the 
extent that they do not exceed the historic amount of diversions and 
that they occur at the historic locations of use and at historic 
diversion points. For water rights or permits that have been exercised 
at less than the decreed or permitted diversion rate, only the historic 
water use practice will be considered exempt. Existing uses of water 
rights that are considered exempt include augmentation plans, 
replacement plans, and exchanges of water that have been recognized by 
decree or certificate of appropriation.
    New actions that are not considered exempt include--any expansion 
of the existing use of water; changes in time, place, or amount; new 
exercise of conditional water rights and undecreed exchanges in 
Colorado; and new exercise of water use permits in Wyoming that have 
not yet been awarded a final certificate of appropriation. Under 
appropriate circumstances, permits may be obtained for take from non-
exempted actions, including water uses that take Preble's.

Summary of Conservation Benefits

    The standard for issuing a 4(d) rule as described in the Act is 
``whenever any species is listed as a threatened species, the Secretary 
of the Interior will issue such regulations as he deems necessary and 
advisable to provide for the conservation of the species.'' This rule 
meets this standard, in that it is protective of the Preble's while 
providing flexibility in managing its conservation and recovery. The 
rule provides only those temporary exemptions to take provisions of the 
Act that neither jeopardize the Preble's nor detract from its future 
recovery.
    The exemptions to take prohibitions under section 9 of the Act 
incorporated into this rule will support the development of meaningful 
conservation efforts for the Preble's by State and local governments, 
agricultural interests, and the general public. Exemptions regarding 
rodent control and landscaping will elicit support from landowners. 
Exemptions for ongoing agricultural practices and for the exercise of 
perfected water rights will provide a positive incentive for 
agricultural interests to engage in voluntary conservation activities, 
such as participation in the Partners for Fish and Wildlife program. In 
addition, such exemptions increase the likelihood that members of the 
agricultural community will support surveys to determine the status of 
the Preble's on their lands, thus advancing our understanding of the 
status, distribution, and ecology of this species and facilitating the 
development of conservation and recovery plans. Any increased access to 
private lands will provide opportunities to better define existing 
Preble's populations and to devise appropriate conservation and 
recovery plans for the mouse.
    Prior to finalization, we have reviewed this rule pursuant to the 
requirements of section 7 of the Act and the National Environmental 
Policy Act and an Environmental Assessment has been prepared. We also 
have prepared a Record of Compliance with rule-making requirements, 
which has undergone public review. Because this rule is a Federal 
action that may adversely affect the Preble's, section 7 compliance is 
required and a biological opinion has been prepared. All documents are 
available from the Service's Colorado and Wyoming Field Offices.
    In accordance with 5 U.S.C. 553 (d)(1), we are making this rule 
effective upon publication. This rule grants exemptions to the take 
prohibitions that went into effect upon publication of the final rule 
listing the Preble's meadow jumping mouse as a threatened species on 
May 13, 1998.

Required Determinations

1. Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, we 
believe that this rule is not a significant regulatory action.
    (a) This rule reduces the regulatory burden of the listing of the 
Preble's, because it provides exemptions to the take prohibitions of 
section 9 of the Act

[[Page 28130]]

that currently apply throughout the range of the Preble's.
    The exemptions to the take prohibitions of the Act provided by this 
rule will reduce economic costs of the listing. The economic effect of 
the rule is a benefit to landowners and the economy. Based on the 
analysis described in the Record of Compliance, the 4(d) rule, by 
itself, will not have an annual economic impact of more than $100 
million, or significantly affect any economic sector, productivity, 
jobs, the environment, or other units of government. A cost-benefit and 
economic analysis is not required.
    (b) This rule will not create inconsistencies with other Federal 
agencies' actions.
    Other Federal agency actions are mostly unaffected by this rule, 
with local government taking the lead in actions relating to the 
Preble's. The Service is encouraged by State and local governments' 
efforts to develop effective conservation plans for the Preble's.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients.
    Because the special rule exempts activities from take prohibitions, 
effects of the rule on entitlements, grants, user fees, loan programs, 
or the rights and obligations of their recipients would be positive.
    (d) This rule will not raise novel legal or policy issues.
    The Service has previously promulgated section 4(d) rules for other 
threatened species.

2. Regulatory Flexibility Act

    Based on the analysis described in the Record of Compliance, we 
have determined that this rule will not have a significant economic 
effect on a substantial number of small entities as defined under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). A Regulatory 
Flexibility Analysis is not required. Accordingly, a Small Entity 
Compliance Guide is not required. This rule reduces the regulatory 
burden of the listing of the Preble's, because without this rule all 
take prohibitions of section 9 of the Act would continue to apply 
throughout the range of the Preble's. The rule exempts four types of 
activities--rodent control, ongoing agricultural activities, 
landscaping, and ongoing use of existing water rights--from the take 
prohibitions, avoiding costs that may be associated with modifying or 
abstaining from conducting these activities in order to avoid take of 
Preble's.

3. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule reduces 
regulatory obligations as discussed in 1 above; therefore, based on the 
information included in the Record of Compliance, this rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based enterprises to compete with foreign-based 
enterprises.

4. Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501, 
et seq.), this rule does not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year. The rule does not have a significant or unique effect 
on State, local, or tribal governments or the private sector. A 
statement containing the information required by the Unfunded Mandates 
Reform Act is not required.

5. Takings

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. This rule reduces the likelihood of 
potential takings; therefore, a takings implication assessment is not 
required.

6. Federalism

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. A Federalism Assessment is not required. 
Currently, the State of Colorado, the Service, and local governmental 
entities in Colorado and Wyoming are working together to develop plans 
to conserve the Preble's and its habitat. This collaborative approach 
is expected to result in the development of Habitat Conservation Plans 
and applications to the Service for incidental take permits under 
section 10 of the Act. One of the purposes of this special rule is to 
foster cooperation among the Service, the States, local governments, 
and the private sector.

7. Paperwork Reduction Act

    The Service has examined this rule under the Paperwork Reduction 
Act of 1995 and found it contained no requests for additional 
information or increase in the collection requirements associated with 
the Preble's other than those already approved for Federal Fish and 
Wildlife license permits with Office of Management and Budget approval 
1018-0094, which has an expiration date of February 28, 2001. For more 
information concerning these permits, see 50 CFR 17.32.

8. National Environmental Policy Act

    The National Environmental Policy Act analysis has been conducted, 
and an Environmental Assessment has been prepared.

9. Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951) and Part 512, Chapter 2 of the Departmental 
Manual of the U.S. Department of the Interior, we have evaluated 
possible effects on federally recognized Indian tribes and have 
determined that there are no effects, because no Indian trust resources 
occur within the range of this species.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Export, Import, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend 50 CFR part 17, as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues 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. Amend Sec. 17.40 by adding a new paragraph (l) to read as 
follows:


Sec. 17.40  Special rules-mammals.

* * * * *
    (l) Preble's meadow jumping mouse (Zapus hudsonius preblei).
    (1) What is the definition of take? To harass, harm, pursue, hunt, 
shoot, wound, trap, kill, or collect; or attempt to engage in any such 
conduct. Incidental take is that which occurs when it is incidental to 
and not the purpose of an otherwise lawful activity. Any take that is 
not authorized by permit provided through section 7 or section 10 of 
the Act or that is not covered by the exemptions described below is 
considered illegal take.

[[Page 28131]]

    (2) When is take of Preble's meadow jumping mice allowed? Take of 
Preble's meadow jumping mice resulting from the following legally 
conducted activities, in certain circumstances as described below, is 
allowed:
    (i) Take under permits. Any person with a valid permit issued by 
the Service under Sec. 17.32 may take Preble's meadow jumping mice 
pursuant to the terms of the permit.
    (ii) Rodent control. Preble's meadow jumping mice may be taken 
incidental to rodent control undertaken within 10 feet of or inside any 
structure. ``Rodent control'' includes control of mice and rats by 
trapping, capturing, or otherwise physically capturing or killing, or 
poisoning by any substance registered with the Environmental Protection 
Agency as required by the Federal Insecticide, Fungicide, and 
Rodenticide Act (7 U.S.C. 136) and applied consistent with its 
labeling. ``Structure'' includes but is not limited to any building, 
stable, grain silo, corral, barn, shed, water or sewage treatment 
equipment or facility, enclosed parking structure, shelter, gazebo, 
bandshell, or restroom complex.
    (iii) Established, ongoing agricultural activities. Preble's meadow 
jumping mice may be taken incidental to agricultural activities, 
including grazing, plowing, seeding, cultivating, minor drainage, 
burning, mowing, and harvesting, as long as these activities are 
established, ongoing activities and do not increase impacts to or 
further encroach upon the Preble's meadow jumping mouse or its habitat. 
New agricultural activities or those that expand the footprint or 
intensity of the activity are not considered to be established, ongoing 
activities.
    (iv) Maintenance and replacement of existing landscaping. Preble's 
meadow jumping mice may be taken incidental to the maintenance and 
replacement of any landscaping and related structures and improvements, 
as long as they are currently in place and no increase in impervious 
surfaces would result from their maintenance and improvement. 
Construction of new structures or improvements or expansion of the 
landscaping in a manner that increases impervious surfaces would not be 
considered maintenance and replacement of existing landscaping.
    (v) Existing uses of water. Preble's meadow jumping mice may be 
taken incidentally as a result of existing uses of water associated 
with the exercise of perfected water rights pursuant to State law and 
interstate compacts and decrees. (A ``perfected water right'' is a 
right that has been put to beneficial use and has been permitted, 
decreed, or adjudicated pursuant to State law.) Increasing the use or 
altering the location of use of an existing water right would not be 
considered an existing use of water.
    (3) When is take of Preble's not allowed?
    (i) Any manner of take not described under paragraph (l) (2) of 
this section.
    (ii) No person may import or export, ship in interstate commerce in 
the course of commercial activity, or sell or offer for sale in 
interstate or foreign commerce any Preble's meadow jumping mice.
    (iii) No person, except for an authorized person may possess, sell, 
deliver, carry, transport, or ship any Preble's meadow jumping mice 
that have been taken illegally.
    (4) How long is this rule effective? This rule is effective for a 
period of 36 months from May 22, 2001.
    (5) Where does this rule apply? The take exemptions provided by 
this rule are applicable within the entire range of the Preble's meadow 
jumping mouse.

    Dated: March 27, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-12792 Filed 5-21-01; 8:45 am]
BILLING CODE 4310-55-P