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Federal Register / Vol. 86, No. 161 / Tuesday, August 24, 2021 / Rules and Regulations
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 listing on proposed and ongoing activities within the range of the listed species. Based on the best available information, the following actions are unlikely to result in a violation of section 9 of the Act if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:
1 Recreation, specifically skiing at Mt. Ashland, and use of the Pacific Crest Trail;
2 Timber sales; and 3 Livestock grazing.
Based on the best available information, the following actions may potentially 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:
1 Unauthorized handling or collecting of the Franklins bumble bee;
2 Unauthorized release of biological control agents that attack any life stage of the Franklins bumble bee, including the unauthorized use of herbicides, pesticides, or other chemicals in areas in which the Franklins bumble bee is known to occur i.e., in the Franklins bumble bees historical range; and 3 Unauthorized release of nonnative species or native species that carry pathogens, diseases, or fungi that are known or suspected to adversely affect the Franklins bumble bee where the species is known to occur i.e., in the Franklins bumble bees historical range.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Oregon Fish and Wildlife Office see FOR FURTHER INFORMATION CONTACT.
II. Critical Habitat
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Background Critical habitat is defined in section 3
of the Act as:
1 The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features a Essential to the conservation of the species, and b Which may require special management considerations or protection; and 2 Specific areas outside the geographical area occupied by the species at the time it is listed, upon a
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determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02
define geographical area occupied by the species as an area that may generally be delineated around species occurrences, as determined by the Secretary i.e., range. Such areas may include those areas used throughout all or part of the species life cycle, even if not used on a regular basis e.g., migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals.
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7a2 of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

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Under the first prong of the Acts definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features 1 which are essential to the conservation of the species and 2 which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species such as space, food, cover, and protected habitat. In identifying those physical or biological features within an area, we focus on the specific features that support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A
feature may be a single habitat characteristic, or a more complex combination of habitat characteristics.
Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.
Under the second prong of the Acts definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We determine whether unoccupied areas are essential for the conservation of the species by considering the life-history, status, and conservation needs of the species. This is further informed by any generalized conservation strategy, criteria, or outline that may have been developed for the species to provide a substantive foundation for identifying which features and specific areas are essential to the conservation of the species and, as a result, to the development of the critical habitat designation. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available.
Further, our Policy on Information Standards Under the Endangered Species Act published in the Federal Register on July 1, 1994 59 FR 34271,
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