Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations 28125

specified. The acquiring carrier is

required to fulfill the obligations set

forth in the advance subscriber notice.

The advance subscriber notice shall be

provided in a manner consistent with 47

U.S.C. 255 and the Commission’s rules

regarding accessibility to blind and

visually-impaired consumers, 47 CFR

6.3, 6.5 of this chapter. The following

information must be included in the

advance subscriber notice:

(i) The date on which the acquiring

carrier will become the subscriber’s new

provider of telecommunications service,

(ii) The rates, terms, and conditions of

the service(s) to be provided by the

acquiring carrier upon the subscriber’s

transfer to the acquiring carrier, and the

means by which the acquiring carrier

will notify the subscriber of any

change(s) to these rates, terms, and

conditions.

(iii) The acquiring carrier will be

responsible for any carrier change

charges associated with the transfer,

(iv) The subscriber’s right to select a

different preferred carrier for the

telecommunications service(s) at issue,

if an alternative carrier is available,

(v) All subscribers receiving the

notice, even those who have arranged

preferred carrier freezes through their

local service providers on the service(s)

involved in the transfer, will be

transferred to the acquiring carrier,

unless they have selected a different

carrier before the transfer date; existing

preferred carrier freezes on the

service(s) involved in the transfer will

be lifted; and the subscribers must

contact their local service providers to

arrange a new freeze.

(vi) Whether the acquiring carrier will

be responsible for handling any

complaints filed, or otherwise raised,

prior to or during the transfer against

the selling or transferring carrier, and

(vii) The toll-free customer service

telephone number of the acquiring

carrier.

[FR Doc. 01–12757 Filed 5–21–01; 8:45 am]

BILLING CODE 6712–01–P

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.

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

28126 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations

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 ranchingrelated 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 siteby-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

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations 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

28128 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations

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

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations 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

28130 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations

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 foreignbased 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 § 17.40 by adding a new

paragraph (l) to read as follows:

§ 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.

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Rules and Regulations 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 § 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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 600

[Docket No. 010119022–1113–02; I.D.

120800A]

RIN 0648–AO89

Magnuson-Stevens Fishery

Conservation and Management Act;

Amendment of Foreign Fishing Fee

Table

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: NMFS issues this final rule to

amend the fee table for foreign vessels

fishing in the U.S. Exclusive Economic

Zone (EEZ). The intent of this action is

to comply with the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act), which

requires the establishment of a schedule

of reasonable fees that apply nondiscriminatorily to each foreign fishing

nation.

DATES: Effective June 21, 2001.

FOR FURTHER INFORMATION CONTACT:

Robert A. Dickinson, 301–713–2276

SUPPLEMENTARY INFORMATION:

Regulations at 50 CFR part 600, subpart

F govern foreign fishing under the

Magnuson-Stevens Act (16 U.S.C. 1801

et seq.). The regulations provide for the

application and issuance of foreign

fishing permits under provisions of

section 204 (b) of the Magnuson-Stevens

Act. Under section 204 (b), foreign

vessels may be permitted to catch,

process, scout, support and transship in

the EEZ.

Section 204 (b)(10) of the MagnusonStevens Act requires the establishment

of a schedule of reasonable fees to apply

non-discriminatorily to each foreign

fishing nation. Regulations at 50 CFR

600.518 require, among other things,

that foreign vessels authorized to

directly harvest fish in the EEZ pay fees

based on the number of metric tons of

allocated species harvested. The species

potentially available for foreign fishing

and the fees associated with those

species are found in the table at 50 CFR

600.518 (b)(1). In a proposed rule

published on March 8, 2001, at 66 FR

13870, NMFS proposed to amend this

table by removing species no longer

available for allocation, clarifying

listings for certain species appearing in

the table, adding Atlantic herring as an

allocable species, and establishing the

fees to be paid for the resulting list of

allocable species.

NMFS believes the fees and other

changes to the table at 50 CFR 600.518

(b)(1) discussed in the proposed rule

published on March 8, 2001, at 66 FR

13870, constitute, in accordance with

section 204 (b)(10) of the MagnusonStevens Act, a schedule of reasonable

fees to apply non-discriminatorily to

each foreign fishing nation. The specific

details of all the changes proposed for

the table at 50 CFR 600.518 (b)(1) are

discussed in the preamble to the

proposed rule published on March 8,

2001, at 66 FR 13870, and are not

repeated here. The fees and other

changes are adopted as final. No

comments were received regarding the

proposed rule published on March 8,

2001, at 66 FR 13870.

Under NOAA Administrative Order

205–11, 7.01, dated December 17, 1990,

the Under Secretary for Oceans and

Atmosphere has delegated to the

Assistant Administrator for Fisheries,

NOAA, the authority to sign material for

publication in the Federal Register.

Classification

This final rule has been determined to

be not significant for purposes of

Executive Order 12866.