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Federal Register / Vol. 86, No. 44 / Tuesday, March 9, 2021 / Rules and Regulations
proposed threatened or endangered species or result in destruction or adverse modification of its proposed critical habitat. If a species is listed subsequently, section 7a2 of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the range of the Missouri DPS of the eastern hellbender habitat that may require consultation as described in the preceding paragraph include, but are not limited to, management and any other landscape-altering activities, particularly those affecting water quality or instream habitat, on Federal lands administered by the U.S. Forest Service and Department of Defense; issuance of section 404 Clean Water Act 33 U.S.C.
1251 et seq. permits by the U.S. Army Corps of Engineers; and construction and maintenance of roads or highways by the Federal Highway Administration.
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 listed 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. There are also certain statutory exemptions from
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the prohibitions, which are found in sections 9 and 10 of the Act.
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 final listing on proposed and ongoing activities within the range of a listed species.
Based on the best available information, the following actions are unlikely to result in a violation of section 9, if these activities are carried out in accordance with existing regulations and permit requirements;
this list is not comprehensive:
1 Activities authorized, funded, or carried out by Federal agencies, when such activities are conducted in accordance with an incidental take statement issued by us under section 7
of the Act;
2 Any action carried out for scientific research or to enhance the propagation or survival of the Missouri DPS of the eastern hellbender that is conducted in accordance with the conditions of a permit issued by the Service under 50 CFR 17.22; and 3 Any incidental take of Missouri eastern hellbenders resulting from an otherwise lawful activity conducted in accordance with the conditions of an incidental take permit issued by the Service under 50 CFR 17.22. NonFederal applicants may design a habitat conservation plan HCP for the DPS
and apply for an incidental take permit.
HCPs may be developed for listed species and are designed to minimize and mitigate impacts to the species to the maximum extent practicable.
We will review other activities not identified above on a case-by-case basis to determine whether they may be likely to result in a violation of section 9 of the Act. We do not consider these lists to be exhaustive and provide them as information to the public.
Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:
1 Unauthorized killing, collecting, handling, or harassing of individual eastern hellbenders at any life stage in Missouri;
2 Sale or offer for sale of any Missouri eastern hellbender, as well as delivering, receiving, carrying, transporting, or shipping any Missouri eastern hellbender in interstate or foreign commerce and in the course of a commercial activity;

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3 Unauthorized destruction or alteration of the DPS habitat for example, instream dredging, channelizing, impounding of water, streambank clearing, removing large rocks from or flipping large rocks within streams, discharging fill material that actually kills or injures individual eastern hellbenders in Missouri by significantly impairing their essential behavioral patterns, including breeding, feeding, or sheltering;
4 Any discharge or water withdrawal within the DPS occupied range that results in the death or injury of individual eastern hellbenders by significantly impairing their essential behavioral patterns, including breeding, feeding, or sheltering; and 5 Discharge or dumping of toxic chemicals or other pollutants into waters supporting the DPS that actually kills or injures individual eastern hellbenders by significantly impairing their essential behavioral patterns, including breeding, feeding, or sheltering.
Questions regarding whether specific activities might constitute a violation of section 9 of the Act should be directed to the Missouri Ecological Services Field Office, 101 Park DeVille Drive, Suite A, Columbia, MO 65203;
telephone 5732342132.
Critical Habitat In our proposed listing rule for the Missouri DPS of the eastern hellbender we found that designating critical habitat was not prudent, in accordance with 50 CFR 424.12a1, because the Missouri DPS faces a threat of unauthorized collection and trade, and designation can reasonably be expected to increase the degree of these threats to the DPS. Please refer to the proposed rule for the full prudency determination analysis 84 FR 13223, April 4, 2019;
Docket No. FWSR3ES20180056.
On August 27, 2019, we published a final rule in the Federal Register 84 FR
45020 to amend our regulations concerning the procedures and criteria we use to designate and revise critical habitat. That rule became effective on September 26, 2019, but, as stated in that rule, the amendments it sets forth apply to rules for which a proposed rule was published after September 26, 2019. We published our proposed critical habitat designation for the Missouri DPS of the eastern hellbender on April 4, 2019 84 FR 13223;
therefore, the amendments set forth in the August 27, 2019, final rule at 84 FR
45020 do not apply to this final determination regarding critical habitat for the Missouri DPS of the eastern hellbender.

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