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Federal Register / Vol. 86, No. 1 / Monday, January 4, 2021 / Rules and Regulations
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 us 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 Alliance v. Lautenbacher, 2007 U.S.
Dist. Lexis 60203 D. Or. 2007;
Washington Environmental Council v.
National Marine Fisheries Service, 2002
U.S. Dist. Lexis 5432 W.D. Wash.
2002. Courts have also upheld 4d rules that do not address all of the threats a species faces see State of Louisiana v. Verity, 853 F.2d 322 5th Cir. 1988. As noted in the legislative history when the Act was initially enacted, once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him with regard to the permitted activities for those species. He may, for example, permit taking, but not importation of such species, or he may choose to forbid both taking and importation but allow the transportation of such species H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973.
Exercising this authority under section 4d, we have developed a species-specific 4d rule that is designed to address the June suckers specific threats and conservation needs.
Although the statute does not require us to make a necessary and advisable finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4d of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the June sucker. As discussed under Summary of Factors
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Affecting the Species, we conclude that the June sucker is no longer at risk of extinction, but is still likely to become so in the foreseeable future, primarily due to the identified threats of water development, habitat degradation, and the introduction of nonnative species.
The provisions of this 4d rule promote conservation of the June sucker by encouraging management of the Utah Lake system in ways that meet the conservation needs of the June sucker while taking into consideration the stakeholders needs. The provisions in this rule are some of many regulatory tools that we will use to promote the conservation of the June sucker.
Provisions of the 4d Rule This 4d rule provides for the conservation of the June sucker by prohibiting the following activities, with certain exceptions discussed below:
Importing or exporting; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; and selling or offering for sale in interstate or foreign commerce. In addition, anyone taking, attempting to take, or otherwise possessing a June sucker, or parts thereof, in violation of section 9 of the Act will be subject to a penalty under section 11 of the Act, with certain exceptions discussed below. Under section 7 of the Act, Federal agencies must continue to ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of the June sucker.
Under the Act, take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulations at 50
CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally.
Allowing incidental and intentional take in certain cases, such as for the purposes of scientific inquiry, monitoring, or to improve habitat or water availability and quality, would help preserve a species remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other stressors.
We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50
CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific
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purposes, to enhance propagation or survival, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist us in implementing all aspects of the Act. In this regard, section 6 of the Act provides that we shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act.
Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with us in accordance with section 6c of the Act, who is designated by his or her agency for such purposes, will be able to conduct activities designed to conserve the June sucker that may result in otherwise prohibited take without additional authorization.
As discussed above under Summary of Factors Affecting the Species, nonnative species, water development, and habitat degradation affect the status of the June sucker. A range of conservation activities, therefore, have the potential to benefit the June sucker, including nonnative fish removal, habitat restoration projects, monitoring of June sucker, management of recreational fisheries, June sucker research projects, educational and outreach efforts, and maintenance of June sucker refuges and stocking programs. Accordingly, this 4d rule addresses activities to facilitate conservation and management of the June sucker where they currently occur and may occur in the future by excepting them from the Acts take prohibition under certain specific conditions. These activities are intended to increase management flexibility and encourage support for the conservation and habitat improvement of the June sucker. Under this 4d rule, take will continue to be prohibited, except for actions allowed in this 4d rule, provided the actions are approved by the Service, in coordination with any existing designated recovery program e.g., JSRIP, for the purpose of June
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