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###### Department of the Interior

###### Fish and Wildlife Service 

          - 50 CFR Part 17 
          - RIN 1018-AF30 

# AGENCY:

Fish and Wildlife Service, Interior. 

# ACTION:

Proposed rule; notice of availability; reopening of comment period. 

# 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 66777),                               ( print 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, 2000.                     

# 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 303-275-2370.                     

# SUPPLEMENTARY INFORMATION: 

## Background 

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 § 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 species.                 

                    (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                           ( print 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. 

## Authority 

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] 

BILLING CODE 4310-55-P