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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Proposed Rules grant programs that are available to aid species recovery can be found at https
www.fws.gov/grants.
Although the Penasco least chipmunk is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for the species.
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 7a4 of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of 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 species habitat that may require conference or consultation or both as described in the preceding paragraph may include, but are not limited to, management and any other landscapealtering activities on Federal lands including those administered by the U.S. Forest Service, 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,
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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. 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 Winter activities at the ski resort;
2 Hiking on established trails; and 3 Routine road maintenance.
Based on the best available information, the following activities 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:
Activities that the Service believes could potentially harm the Penasco least chipmunk and result in take include, but are not limited to:
1 Unauthorized handling or collection of the species;
2 Creation and modification of trails;
3 Ski resort maintenance during summer months; and 4 Organized mountain bike races.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed
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to the New Mexico Ecological Services Field Office see FOR FURTHER
INFORMATION CONTACT.
II. Proposed Critical Habitat Designation 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 determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02
define the 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.
Additionally, our regulations at 50 CFR
424.02 define the word habitat as follows: for the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.
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
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