[Federal Register: May 20, 2004 (Volume 69, Number 98)]
[Rules and Regulations]               
[Page 29101-29105]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 29101]]



Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ26

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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.


SUMMARY: On May 22, 2001, the Fish and Wildlife Service (Service) 
adopted special regulations governing take of the threatened Preble's 
meadow jumping mouse (Zapus hudsonius preblei). The special regulations 
provide exemption from take provisions under section 9 of the 
Endangered Species Act for certain activities related to rodent 
control, ongoing agricultural activities, landscape maintenance, and 
existing uses of water. On October 1, 2002, the Service amended those 
regulations to provide exemptions for certain activities related to 
noxious weed control and ongoing ditch maintenance activities. On 
February 24, 2004, the Service proposed permanent extension of the 
amended special regulations. This action extends the special 
regulations permanently.

DATES: This rule is effective May 20, 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, Ecological Services, 755 Parfet Street, 
Suite 361, Lakewood, Colorado 80215.

FOR FURTHER INFORMATION CONTACT: In Colorado, contact the Field 
Supervisor, at the above address, or telephone (303) 275-2370. In 
Wyoming, contact the Field Supervisor, Cheyenne, Wyoming, at telephone 
(307) 772-2374.



    The final rule listing the Preble's meadow jumping mouse (Zapus 
hudsonius preblei) (Preble's) as a threatened species under the 
Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et 
seq.), was published in the Federal Register on May 13, 1998 (63 FR 
26517). Section 9 of the Act prohibits take of endangered wildlife. The 
Act defines take to mean harass, harm, pursue, hunt, shoot, wound, 
kill, trap, capture, or collect or to attempt to engage in any such 
conduct. However, the Act also provides for the authorization of take 
and exceptions to the take prohibitions. Take of listed species by non-
Federal property owners can be permitted through the process set forth 
in section 10 of the Act. For federally funded or permitted activities, 
take of listed species may be allowed through the consultation process 
of section 7 of the Act. While section 9 of the Act establishes 
prohibitions applicable to endangered species, the Service has issued 
regulations (50 CFR 17.31) applying those same prohibitions to 
threatened wildlife. These regulations may be tailored for a particular 
threatened species through promulgation of a special rule under section 
4(d) of the Act. When a special rule has been established for a 
threatened species, the general regulations for some section 9 
prohibitions do not apply to that species, and the special rule 
contains the prohibitions, and exemptions, necessary and advisable to 
conserve that species.
    On May 22, 2001 (66 FR 28125), we adopted a final section 4(d) 
special rule for the Preble's that provided exemptions from section 9 
take prohibitions for certain rodent control activities, ongoing 
agricultural activities, maintenance and replacement of existing 
landscaping, and existing uses of water. On October 1, 2002 (67 FR 
61531), we amended this rule to provide exemptions for certain noxious 
weed control and ongoing ditch maintenance activities. The final 
special rule, as amended, is effective until May 22, 2004. We are now 
extending the amended special rule permanently.
    We believe that the special rule, as amended, is necessary and 
advisable to provide for the conservation of the Preble's. The special 
rule has been shown to provide for the conservation of the Preble's by 
allowing activities that help to maintain the habitat characteristics 
needed by the species. Although such activities, including ditch 
maintenance and noxious weed control, may result in limited levels of 
take, they support the continued presence of occupied habitat that 
might otherwise be lost to succession or invasive species. Also, by 
offering flexibility to private landowners for ongoing activities that 
will not impede the conservation of the species, the special rule 
provides an incentive for landowners to pursue voluntary conservation 
efforts and advance our understanding of the species. The rule has 
garnered support of State and local governments, private landowners, 
and other interested parties, and we believe that the permanent 
extension of the special rule will contribute to a lasting, cooperative 
approach for the recovery of the species.
    The special 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, section 10(a)(1)(B) of the Act 
allows the public to obtain from us, in appropriate circumstances, 
permits allowing take of Preble's, providing that the take is 
incidental to, and not the purpose of, each action or project. One of 
the purposes of the special 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. This 
purpose will be continued by the permanent extension. Additional 
activities that result in take of Preble's that are not exempted by the 
special rule may still 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 (HCPs) and applications to the Service for 
incidental take permits under section 10 of the Act. These HCPs will 
provide an important component of a lasting, effective, and efficient 
recovery program for the Preble's.
    Second, section 7 of the Act requires Federal agencies, in 
consultation with and with the assistance of the Service, to use their 
authorities to conserve listed species and ensure that actions 
authorized, funded, or carried out by the agency are not likely to 
jeopardize the Preble's. On private land, Federal actions in Preble's 
habitat that may require consultation include the issuance of section 
404 permits by the Army Corps of Engineers for dredge and fill 
activities regulated under the Clean Water Act. A section 7 
consultation was conducted on the current special rule, and the ensuing 
biological opinion addressed a wide array of potential effects from 
private actions, some of which have unknown timeframes, some of which 
occur sporadically, and some of which occur on a regular schedule. The 
biological opinion found that the special rule would not jeopardize the 
continued existence of the species, and that the level of take from the 
rule was not biologically significant. The analysis for this 
consultation considered effects

[[Page 29102]]

that could occur within the 36-month period of the existing special 
rule but also recognized the adverse effects being considered could 
occur at any time in the future. Therefore, making this special rule 
permanent does not affect the Preble's or its critical habitat in a way 
not previously considered in the biological opinion. We have 
accordingly determined that reinitiation of consultation on the 
permanent extension of the special rule is not necessary.
    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.
    Fourth, we are committed to development of a recovery program for 
the Preble's that achieves recovery of the species and provides 
solutions to conflicts between the species' recovery and economic 
activities, including agriculture. We believe that a recovery program 
that integrates both biological and social factors will have the 
highest chance of success. The Service has established a Recovery Team 
for the Preble's, and a draft recovery plan will be available for 
public review in the near future.
    The May 22, 2001, special rule and the October 1, 2002, amendment 
recognized that the take exemptions provided by the rule would support 
the development of meaningful conservation efforts for the Preble's by 
State and local governments, agricultural interests, and the general 
public. The rule and the amendments identified the following 
conservation benefits to the Preble's--(1) Exemptions regarding rodent 
control and landscaping would elicit support from landowners for 
Preble's conservation and recovery; (2) exemptions for ongoing 
agricultural practices and the exercise of existing water rights would 
provide a positive incentive for agricultural interests to participate 
in voluntary conservation activities and advance our understanding of 
species biology and ecology; (3) exemptions for noxious weed control 
would facilitate maintaining desirable natural vegetation on which the 
Preble's depends for survival; and (4) exemptions for ditch maintenance 
would help assure that currently existing Preble's habitat along 
ditches remains functionally viable.

Provisions of the Rule

    The special rule for the Preble's found at 50 CFR 17.40(l) will 
expire on May 22, 2004. With this rule we are permanently extending the 
amended special rule to continue the benefits it provides. We recognize 
that additional information on the Preble's will become available in 
forthcoming years. We will evaluate this information regarding possible 
impacts from exempted activities to determine whether any changes, up 
to and including discontinuance, should be made to the special rule.
    Additionally, we are making a correction to the entry for the 
Preble's on the List of Endangered and Threatened Wildlife in 50 CFR 
17.11(h). When the special rule for the Preble's was added to 50 CFR 
17.40(l) on May 22, 2001 (66 FR 28125), we failed to amend the table in 
50 CFR 17.11(h) to reflect the existence of the new special rule. 
Therefore, we are making the correction to the table in 50 CFR 17.11(h) 
in this rulemaking action.

Public Comments Received

    A proposed rule permanently extending the existing special rule was 
published in the Federal Register on February 24, 2004 (69 FR 8359), 
and public comments were solicited. A public hearing was held on April 
1, 2004, in Wheatland, Wyoming. Twenty-two public comments were 
received, primarily supporting the extension. A few asked for expansion 
of take exemptions to cover additional activities. Only one opposed the 
extension on general disagreement over the killing of threatened and 
endangered species. Comments were received from the State of Wyoming 
supporting the extension of the special rule and also requesting that 
additional kinds of activities be exempted under the special rule. In 
order to add exemptions to a rule, we must first propose them through a 
proposed rule published in the Federal Register that provides an 
opportunity for public comment. However, because we did not include 
exemptions for additional new activities in our February 24, 2004, 
proposal, it is not possible for us to include them in this final rule. 
In the future, it may be appropriate for us to consider proposing 
additional exemptions. At that time, we will need to evaluate the 
conservation benefit to the species and prepare a proposed rule for 
public comment.

Effective Date

    In accordance with 5 U.S.C. 553(d)(1), we are making this rule 
effective upon publication because it grants or recognizes an exemption 
or relieves a restriction. This rule provides exemptions from the take 
provisions under section 9 of the Act for persons engaging in rodent 
control, ongoing agricultural activities, landscaping, ongoing use of 
existing water rights, noxious weed control, and ditch maintenance 

Required Determinations

    We prepared a Record of Compliance for the May 22, 2001, final rule 
that exempted the four activities of rodent control, ongoing 
agricultural activities, landscaping, and ongoing use of existing water 
rights from the take prohibitions listed in section 9 of the Act. A 
Record of Compliance certifies that a rulemaking action complies with 
the various statutory, Executive Order, and Department Manual 
requirements applicable to rulemaking. Amendment of the May 22, 2001, 
rule to include the two additional exemptions (noxious weed control and 
ditch maintenance activities) did not add any significant elements to 
this Record of Compliance. Permanent extension of the amended special 
rule also does not add any significant elements to this Record of 
    Without this extension, activities included in the special rule, as 
amended, would no longer be exempted from the take prohibitions. This 
rule continues the exemptions and allows landowners to engage in 
certain activities, as identified in the rule, that may result in take 
of Preble's. Without this extension, anyone engaging in those 
activities might need to seek an authorization from us through an 
incidental take permit under section 10(a)(1)(B) or an incidental take 
statement under section 7(a)(2) of the Act. This process takes time and 
can involve an economic cost. This rule allows these landowners to 
avoid the costs associated with abstaining from conducting any such 
activities that may result in take, modifying these activities to 
prevent take from occurring, or seeking an incidental take permit from 

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, the 
Office of Management and Budget (OMB) has determined that this rule is 
a significant regulatory action as this rule may raise

[[Page 29103]]

novel legal or policy issues. This rule 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. This rule reduces the regulatory burden of the listing of 
the Preble's under the Act as a threatened species by continuing 
certain exemptions to the section 9 take prohibitions that would 
otherwise apply throughout the Preble's range.
    Preble's habitat, which overlaps farming and ranching businesses, 
primarily affects four southeast Wyoming counties--(1) Converse; (2) 
Laramie; (3) Platte; and (4) Albany. This four-county area contains 
1,739 farms and ranches covering 3.6 million hectares (8.9 million 
acres). The average size of an agricultural operation is about 2,064 
hectares (5,100 acres), although individual operations vary greatly in 
size. The total marketing value of livestock and crops, measured as 
cash receipts, is about $182.5 million.
    As previously discussed, the Service has adopted special 
regulations pursuant to section 4(d) of the Act for Preble's, and these 
regulations are currently set to expire on May 22, 2004. Specifically, 
these regulations provide exemption from take provisions under section 
9 for certain activities related to rodent control, ongoing 
agricultural activities, landscape maintenance, perfected water rights, 
certain noxious weed control, and ditch maintenance activities. Should 
this regulation expire, such activities could result in the incidental 
take of Preble's, which is prohibited under section 9 of the Act. 
However, section 10 of the Act does allow landowners to obtain a permit 
to conduct otherwise lawful activities that may result in incidental 
take of a listed species. The incidental take permit requires the 
applicant to prepare, and the Service approve, a habitat conservation 
plan (HCP). The HCP may include certain restrictions to agricultural 
activities to minimize incidental take of Preble's.
    The types of restrictions the Service might impose on agricultural 
activities to minimize take are expected to vary significantly from one 
application to another, depending on the specific situation. However, 
Service guidelines call for mitigating the take of Preble's to the 
maximum extent practicable. Examples of mitigation conditions include 
fencing, planting willows, or other measures intended to create a 
buffer zone along waterways in riparian areas. The Service also may 
impose restrictions on the methods or timing of activities associated 
with irrigation ditch maintenance.
    The primary economic impacts to landowners associated with 
enforcement of the Act, should this section 4(d) rule expire, are the 
costs of preparing HCPs for the Preble's and the costs associated with 
any activity restrictions imposed by the Service to minimize take of 
the Preble's. These impacts would potentially affect agricultural 
operations in southeast Wyoming. The primary land use activities likely 
to be impacted by sections 9 and 10 of the Act are haying and grazing, 
and irrigation ditch maintenance. A short discussion follows of the 
impacts farmers and ranchers could incur should this regulation lapse.

Irrigation Canal and Ditch Maintenance Activities

    The three commonly used methods of ditch maintenance are burning, 
flushing (flowing water through a ditch to clear blockages), and 
dipping (mechanically clearing blockages). Of these three options, the 
most cost effective is burning, which also may be the most likely to 
result in incidental take of Preble's. Because of this, some landowners 
are concerned that the burning could be prohibited after the expiration 
of the special rule, which would impact their irrigation activities.
    An example of the potential impacts to irrigation canal and ditch 
maintenance is illustrated using estimates developed by the Wheatland 
Irrigation District. The Wheatland Irrigation District estimates that 
its annual irrigation ditch maintenance costs would increase by 
approximately 250 percent if burning is reduced by 50 percent. If all 
burning were prohibited, irrigation ditch maintenance costs could 
increase by approximately 400 percent annually.

Haying and Grazing Activities

    Haying and grazing activities also would be subject to sections 9 
and 10 of the Act to minimize take of the Preble's. To avoid violating 
this provision, landowners would have to either cease activities that 
might result in incidental take, or they may need to submit an 
application to the Service for an incidental take permit, including an 
HCP. As with irrigation canal and ditch maintenance activities, 
landowners could expect some restrictions or conditions on haying and 
grazing activities as mitigation for the incidental take of Preble's.
    The types of restrictions or conditions would vary depending upon 
the situation. In situations where riparian areas have been degraded by 
intensive grazing activity, mitigation measures for an incidental take 
permit may include restrictions on the number of Animal Unit Months or 
AUMs (an AUM is the amount of forage needed to sustain one cow and her 
calf, one horse, or five sheep or goats for a month) within riparian 
areas, the construction of fencing with water gaps to keep herds out of 
riparian areas, and planting willows along stream banks. In situations 
where riparian areas are not degraded, mitigation measures may be 
minimal. The economic impacts of sections 9 and 10 of the Act on haying 
and grazing activities should this regulation expire can thus be 
expected to vary widely from landowner to landowner.
    By permanently extending this section 4(d) rule, farm and ranch 
operators will avoid future costs associated with ensuring that their 
otherwise legal activities avoid incidentally taking Preble's. 
Consequently, the economic effect of the rule benefits landowners and 
the economy. This effect does not rise to the level of ``significant'' 
under Executive Order 12866.
    This rule should not create inconsistencies with other Federal 
agencies' actions. Other Federal agencies are mostly unaffected by this 
    This rule should not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Because this rule would allow landowners to continue otherwise 
prohibited activities without first obtaining individual authorization, 
the rule's impacts on affected landowners is positive.
    We have previously promulgated section 4(d) special rules for this 
and other species, including the amended special rule for the Preble's 
pertaining to rodent control, ongoing agricultural activities, 
landscaping, existing uses of water, noxious weed control, and ongoing 
ditch maintenance activities. This rule permanently extends the 
effective period of the amended special rule for the Preble's. However, 
OMB has determined that this proposed rule may raise novel legal or 
policy issues. Therefore, in accordance with Executive Order 12866, OMB 
has reviewed this rule.

Regulatory Flexibility Act

    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 final 
regulatory flexibility analysis is not required, and a Small Entity 
Compliance Guide is not required. This rule reduces the regulatory 
burden of

[[Page 29104]]

the listing of the Preble's as a threatened species. Without an 
extension of the amended special rule, all of the take prohibitions 
listed in section 9 of the Act would apply throughout the range of the 
Preble's. This rule allows certain affected landowners to continue to 
engage in certain activities that may result in take of Preble's, and 
to avoid the costs associated with abstaining from conducting these 
activities to avoid take of Preble's or seeking incidental take permits 
from us.
    As previously discussed, this rulemaking will primarily affect farm 
and ranch operations within four counties in southeastern Wyoming. 
Although the precise numbers of affected operations are not known, the 
total number of farms and ranches in the area is estimated to be 1,739. 
The 2002 total cash receipts for these operations were approximately 
$182.5 million, which represents about 25 percent of the State total. 
Based on the State ratio of net farm income to animal and crop cash 
receipts (12 percent), the estimated average net farm income in this 
area would be $21,900.
    The Office of Advocacy for the Small Business Administration 
defines small entities in the farm and ranch sector as those each 
having less than $750,000 in annual receipts. This qualifies most of 
the farms and ranches in the area as small businesses, according to 
data published in 1998 by the U.S. Department of Agriculture.
    The permanent extension of the section 4(d) rule will allow these 
small entities to avoid incurring costs associated with the development 
of an HCP and the administrative costs that would reflect the effort to 
obtain an incidental take permit. Administrative costs alone could cost 
between $3,000 and $4,000, according to a recent economic analysis 
conducted by the Service as part of the critical habitat designation 
for the Preble's. Depending on how such costs are expensed, the cost to 
obtain a permit could be relatively significant.
    This rulemaking avoids such impacts by providing an exemption from 
the take provisions under section 9 for certain activities related to 
rodent control, ongoing agricultural activities, landscape maintenance, 
use of perfected water rights, certain noxious weed control, and ditch 
maintenance activities. Consequently, pursuant to 5 U.S.C. 605(b), we 
are certifying that this rulemaking will not have a significant 
economic effect on a substantial number of small entities.

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 will not have 
an annual effect on the economy of $100 million or more; will not cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. As 
described above, this rule will continue to reduce regulatory burdens 
on affected entities, who are mostly agricultural producers.

Unfunded Mandates Reform Act

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


    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. By continuing reductions in the 
regulatory burden placed on affected landowners resulting from the 
listing of the Preble's as a threatened species, this rule reduces the 
likelihood of potential takings. Affected landowners will continue to 
have more freedom to pursue certain activities that may result in take 
of Preble's without first obtaining individual authorization.


    In accordance with Executive Order 13132, this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism assessment. Currently, the State of Colorado, the Service, 
and various 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 HCPs that should support a lasting, effective, and 
efficient conservation program for the Preble's. To support such 
efforts, we wish to permanently extend the special rule. The current 
amended special rule would otherwise expire on May 22, 2004.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Executive Order.

Paperwork Reduction Act

    We have examined this rule under the Paperwork Reduction Act of 
1995 and found it to contain no requests for information. 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.

National Environmental Policy Act

    The National Environmental Policy Act (NEPA) analysis has been 
conducted. An Environmental Assessment was prepared for the May 22, 
2001, final special rule, and for the additional exemptions covered in 
the amended rule. The extension of the October 1, 2002, amended special 
rule does not alter the analyses made in the Environmental Assessment. 
The Environmental Assessment discussed impacts to the mouse that are 
not specific to any time period, that is, they apply equally to both 
the short term and the long term. This is due to the fact that any 
possible take from year to year is not cumulative, because the species 
has a short life-span, and the types of activities allowed under the 
special rule are not related to any particular timeframe. This rule was 
not found to be significant under NEPA as these exemptions reduce 
regulatory burdens for activities that result in minimal levels of take 
allowing conservation efforts to be focused on those actions that will 
provide the greatest conservation benefit for the species. Therefore, 
no modification of the Environmental Assessment is needed.

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 Executive Order 13175, we have 
evaluated possible effects on federally recognized Indian Tribes. We 
have determined that, because no Indian trust resources occur within 
the range of the Preble's, this rule has no effects on federally 
recognized Indian Tribes.

Executive Order 13211

    We have evaluated this rule in accordance with Executive Order 
13211 and have determined that this rule has

[[Page 29105]]

no effects on energy supply, distribution, or use. Therefore, this 
action is not a significant energy action, and no Statement of Energy 
Effects is required.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

Accordingly, the Service amends 50 CFR part 17, as set forth below:


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. Section 17.11(h) is amended by revising the entry for Preble's 
meadow jumping mouse, under ``Mammals,'' on the List of Endangered and 
Threatened Wildlife to read as follows:

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

                                                                      * * * * * * *
Mouse, Preble's meadow jumping...  Zapus hudsonius       U.S.A. (CO, WY)....  ......do...........  T                       636     17.95(a)     17.40(l)

                                                                      * * * * * * *

Sec.  17.40  [Amended]

3. Amend paragraph (l) of Sec.  17.40 by removing paragraph (l)(4) and 
redesignating paragraph (l)(5) as paragraph (l)(4).

    Dated: May 13, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-11441 Filed 5-19-04; 8:45 am]