[Federal Register: January 25, 2005 (Volume 70, Number 15)]
[Rules and Regulations]               
[Page 3493-3494]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 17

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

AGENCIES: Fish and Wildlife Service, Interior.

ACTION: Final rule; correction.


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). 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. These regulations were set to expire on May 22, 
2004. On May 20, 2004, the Service published a final rule to extend 
these special regulations permanently. However, in spite of this final 
rule, the special regulations were removed from the CFR. This removal 
was done in error. With this final rule, we reinstate the regulatory 
text at Sec.  17.40(l) as it was set forth in the May 20, 2004, final 

DATES: Effective May 20, 2004.

ADDRESSES: Division of Policy and Directives Management, U.S. Fish and 
Wildlife Service, Mail Stop 222, Arlington Square, 4401 N. Fairfax 
Drive, Arlington, VA 22203.

FOR FURTHER INFORMATION CONTACT: Sara Prigan, Federal Register Liaison, 
Fish and Wildlife Service, at (703) 358-2508.



    On May 22, 2001 (66 FR 28125), the Fish and Wildlife Service 
(Service, or we) adopted special regulations at 50 CFR 17.40(l) 
governing take of the threatened Preble's meadow jumping mouse (Zapus 
hudsonius preblei). The special regulations provided 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 (67 FR 61531), we amended these regulations to exempt 
certain activities related to noxious weed control and ongoing ditch 
maintenance activities. These regulations as amended were set to expire 
on May 22, 2004. On May 20, 2004 (69 FR 29101), we published a final 
rule to extend these special regulations permanently. We made this 
final rule effective on May 20, 2004, in order to avoid a gap in 
effectiveness. However, in spite of our efforts, by some error, the 
special regulations were removed from the CFR on May 22, 2004. With 
this correction, we reinstate the regulatory text of 17.40(l) as set 
forth in the May 20, 2004, final rule (69 FR 29101).

List of Subjects in 50 CFR Part 17

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

Regulation Correction


For reasons set forth in the preamble, we correct 50 CFR 17.40 by 
reinstating 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, 

[[Page 3494]]

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.
    (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 
    (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 
    (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.
    (vi) Noxious weed control. Preble's meadow jumping mice may be 
taken incidental to noxious weed control that is conducted in 
accordance with:
    (A) Federal law, including Environmental Protection Agency label 
    (B) Applicable State laws for noxious weed control;
    (C) Applicable county bulletins;
    (D) Herbicide application guidelines as prescribed by herbicide 
manufacturers; and
    (E) Any future revisions to the authorities listed in paragraphs 
(l)(2)(vi)(A) through (D) of this section that apply to the herbicides 
proposed for use within the species' range.
    (vii) Ditch maintenance activities. Preble's meadow jumping mice 
may be taken incidental to normal and customary ditch maintenance 
activities only if the activities:
    (A) Result in the annual loss of no more than \1/4\ mile of 
riparian shrub habitat per linear mile of ditch, including burning of 
ditches that results in the annual loss of no more than \1/4\ mile of 
riparian shrub habitat per linear mile of ditch.
    (B) Are performed within the historic footprint of the surface 
disturbance associated with ditches and related infrastructure, and
    (C) Follow the Best Management Practices described in paragraphs 
(l)(2)(vii)(C)(1) through (3) of this section.
    (1) Persons engaged in ditch maintenance activities shall avoid, to 
the maximum extent practicable, impacts to shrub vegetation. For 
example, if accessing the ditch for maintenance or repair activities 
from an area containing no shrubs is possible, then damage to adjacent 
shrub vegetation shall be avoided.
    (2) Persons engaged in placement or sidecasting of silt and debris 
removed during ditch cleaning, vegetation or mulch from mowing or 
cutting, and other material from ditch maintenance shall, to the 
maximum extent practicable, avoid shrub habitat and at no time disturb 
more than \1/4\ mile of riparian shrub habitat per linear mile of ditch 
within any calendar year.
    (3) To the maximum extent practicable, all ditch maintenance 
activities should be carried out during the Preble's hibernation 
season, November through April.
    (D) All ditch maintenance activities carried out during the 
Preble's active season, May through October, should be conducted during 
daylight hours only.
    (E) Ditch maintenance activities that would result in permanent or 
long-term loss of potential habitat that would not be considered normal 
or customary include replacement of existing infrastructure with 
components of substantially different materials and design, such as 
replacement of open ditches with pipeline or concrete-lined ditches, 
replacement of an existing gravel access road with a permanently paved 
road, or replacement of an earthen diversion structure with a rip-rap 
and concrete structure, and construction of new infrastructure or the 
movement of existing infrastructure to new locations, such as 
realignment of a ditch, building a new access road, or installation of 
new diversion works where none previously existed.
    (3) When is take of Preble's not allowed?
    (i) Any manner of take not described under paragraph (l)(2) of this 
    (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) 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: January 18, 2005.
Sara Prigan,
Fish and Wildlife Service Federal Register Liaison.
[FR Doc. 05-1263 Filed 1-24-05; 8:45 am]