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Federal Register / Vol. 86, No. 246 / Tuesday, December 28, 2021 / Proposed Rules
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critical habitat, the responsible Federal agency must enter into consultation with the Service.
Examples of Federal agency actions within the species habitat within the DPSs that may require conference or consultation or both, as described in the preceding paragraph, include but are not limited to management and any other landscape-altering activities on Federal lands administered by the U.S.
Fish and Wildlife Service, Forest Service, BLM, and National Park Service; issuance of section 404 Clean Water Act 33 U.S.C. 1251 et seq.
permits by the U.S. Army Corps of Engineers; construction and maintenance of roads, bridges, or highways by the Federal Highway Administration; water management and conveyance activities by the Bureau of Reclamation; and licensing for hydropower and safety of dams by the FERC.
South Sierra DPS and South Coast DPSProposed Endangered Status The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9a1 of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any species listed as an endangered species.
It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally.
Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50
CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

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It is our policy, as published in the Federal Register on July 1, 1994 59 FR
34272, to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing.
Because activities being implemented in the range of the species are variable and have variable impacts depending on the nature of the project, we are unable at this time to identify any specific activities within the range of the species that would not constitute a violation of section 9, as effects of any actions on the species are fact-pattern specific.
However, actions whose effects do not extend into foothill yellow-legged frog habitat are unlikely to result in section 9 violations.
Based on the best available information, the following activities may result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive:
Activities that the Service believes could potentially harm the foothill yellow-legged frog and result in take include, but are not limited to:
1 Unauthorized handling or collecting of the species;
2 Destruction/alteration of the species habitat by discharge of fill material, draining, ditching, tiling, pond construction, stream channelization or diversion, or diversion or alteration of surface or ground water flow;
3 Inappropriate livestock grazing that results in direct or indirect destruction of riparian habitat;
4 Pesticide applications in violation of label restrictions;
5 Introduction of nonnative species that compete with or prey upon foothill yellow-legged frogs, such as the introduction of nonnative bullfrogs or nonnative fish; and 6 Modification of the channel or water flow of any stream or removal or destruction of vegetation or stream substrate in any body of water in which the foothill yellow-legged frog is known to occur.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Sacramento Fish and Wildlife Office see FOR FURTHER INFORMATION
CONTACT.

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North Feather DPS and Central Coast DPSProposed Threatened Status It is our policy, as published in the Federal Register on July 1, 1994 59 FR
34272, to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. The discussion below regarding protective regulations under section 4d of the Act for the proposed threatened North Feather DPS and Central Coast DPS complies with our policy.
II. Proposed Rule Issued Under Section 4d of the Act for the North Feather DPS and the Central Coast DPS of the Foothill Yellow-Legged Frog Background Section 4d of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language like necessary and advisable demonstrates a large degree of deference to the agency see Webster v. Doe, 486 U.S. 592
1988. Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4d of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9a1, in the case of fish or wildlife, or section 9a2, in the case of plants. Thus, the combination of the two sentences of section 4d provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to the Service when adopting the prohibitions under section 9.
The courts have recognized the extent of the Secretarys discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4d as a valid exercise of agency authority where they prohibited take of threatened wildlife, or include a limited taking prohibition see Alsea Valley
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