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Federal Register / Vol. 86, No. 103 / Tuesday, June 1, 2021 / Proposed Rules
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. There are also certain statutory exemptions from 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 proposed listing on proposed and ongoing activities within the range of the species proposed for listing. For the Northern DPS of the lesser prairie-chicken, which we are proposing to list as threatened, the discussion below in section II regarding protective regulations under section 4d of the Act complies with our policy.
We now discuss specific activities related to the Southern DPS, which we are proposing to list as endangered.
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. As identified in the SSA report, restoration actions are essential for conservation of the lesser prairie-chicken. Restoration actions will not constitute a violation of section 9 as those actions are implemented on lands that are not currently lesser prairiechicken habitat. These restoration actions include:
1 Planting previously tilled or no till croplands to grasses;

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2 Removal of nonnative or invasive trees and shrubs, not including shinnery oak or sand sagebrush; and 3 Removal of existing infrastructure including oil and gas infrastructure, electrical transmission and distribution lines, windmills, existing fences, and other anthropogenic features impacting the landscape.
Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act in the southern DPS
of the lesser prairie-chicken if they are not authorized in accordance with applicable law; this list is not comprehensive:
1 Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of these taxa at least 100
years old, as defined by section 10h1
of the Act.
2 Actions that would result in the unauthorized destruction or alteration of the species habitat. Such activities could include, but are not limited to, the removal of native shrub or herbaceous vegetation by any means for any infrastructure construction project or the direct conversion of native shrub or herbaceous vegetation to another land use.
3 Actions that would result in sustained alteration of preferred vegetative characteristics of lesser prairie-chicken habitat, particularly those actions that would cause a reduction or loss in the native invertebrate community within those habitats or alterations to vegetative composition and structure. Such activities could include, but are not limited to, incompatible livestock grazing, the application of herbicides or insecticides, and seeding of nonnative plant species that would compete with native vegetation for water, nutrients, and space.
4 Actions that would result in lesser prairie-chicken avoidance of an area during one or more seasonal periods.
Such activities could include, but are not limited to, the construction of vertical structures such as power lines, communication towers, buildings, infrastructure to support energy development, roads, and other anthropogenic features; motorized and nonmotorized recreational use; and activities such as well drilling, operation, and maintenance, which would entail significant human presence, noise, and infrastructure.
5 Actions, intentional or otherwise, that would result in the destruction of
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eggs or active nests or cause mortality or injury to chicks, juveniles, or adult lesser prairie-chickens.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act in regards to the Southern DPS of the lesser prairiechicken should be directed to the Arlington Ecological Services Field Office see FOR FURTHER INFORMATION
CONTACT.
II. Proposed Rule Issued Under Section 4d of the Act for the Northern DPS of the Lesser Prairie-Chicken Background Section 4d of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as he 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 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
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