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Federal Register / Vol. 86, No. 166 / Tuesday, August 31, 2021 / Rules and Regulations species, and to provide assistance for such programs, in the form of personnel and the training of personnel.
Please let us know if you are interested in participating in recovery efforts for Bartrams stonecrop.
Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes see FOR FURTHER
INFORMATION CONTACT.
Section 7a of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. 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 any endangered or threatened 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 species habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the U.S. Forest Service Coronado National Forest, Bureau of Land Management, U.S.
Customs and Border Protection, and National Park Service Chiricahua National Monument and Saguaro National Park.
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered plants. The prohibitions of section 9a2 of the Act, codified at 50 CFR 17.61, make it illegal for any person subject to the jurisdiction of the United States to: Import or export;
remove and reduce to possession from areas under Federal jurisdiction;
maliciously damage or destroy on any such area; remove, cut, dig up, or damage or destroy on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law; deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce an endangered plant. Certain exceptions apply to employees of the Service, the
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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 plants under certain circumstances. Regulations governing permits are codified at 50
CFR 17.62. With regard to endangered plants, a permit may be issued for scientific purposes or for enhancing the propagation or survival of the species.
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 final listing on proposed and ongoing activities within the range of a listed species. The discussion below regarding protective regulations under section 4d of the Act complies with our policy.
II. Final Rule Issued Under Section 4d of the Act Background Section 4d of the Act contains two sentences. The first sentence states that the Secretary of the Interior 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.

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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 rule that is designed to address Bartrams stonecrops specific stressors and conservation needs. Although the statute does not require the Service 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 Bartrams stonecrop.
As discussed above under Determination of Bartrams Stonecrops Status, we have concluded that Bartrams stonecrop is likely to become in danger of extinction within the foreseeable future due to groundwater extraction and prolonged drought expected to reduce nearby water levels and humidity within Bartrams stonecrops microenvironment, and altered fire regimes leading to erosion of Bartrams stonecrop habitat that could dislodge plants, to sedimentation that could cover individuals, and to loss of overstory shade trees. In addition, collection, trampling, herbivory, flooding, and dislodging and burial from recreationists, cross-border violators, and domestic and wild animals contribute to the risk of extinction within the foreseeable future due to the majority of populations being small and
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