[Federal Register Volume 63, Number 84 (Friday, May 1, 1998)]
[Proposed Rules]
[Pages 24148-24150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11668]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 217

[Docket No. 980414094-8094-01; I.D. No. 091797A]
RIN 0648-AK55


Endangered and Threatened Wildlife and Plants; Definition of 
``Harm''

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule defines the term ``harm,'' which is 
contained in the definition of ``take'' in the Endangered Species Act. 
The purpose of this rulemaking is to clarify the type of harm that may 
result in a take of a listed species under the ESA. This is not a 
change in existing law. This proposed rule defines the term ``harm'' to 
include any act which actually kills or injures fish or wildlife. Such 
acts may include significant habitat modification or degradation that 
significantly impairs essential behavioral patterns of fish or 
wildlife.

DATES: Comments must be received by June 30, 1998.

ADDRESSES: Comments should be sent to Chief, Endangered Species 
Division, Office of Protected Resources, NMFS, 1315 East-West Highway, 
Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Joe Blum, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910, phone (301)713-1401 or Garth Griffin, 
NMFS, 525 NE Oregon St, Suite 500, Portland, OR 97232, phone (503)231-
2005.

SUPPLEMENTARY INFORMATION:

Background

    Section 9 of the ESA makes it illegal to take an endangered species 
of fish or wildlife. The definition of ``take'' is to ``harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to 
attempt to engage in any such conduct.'' (16 U.S.C. 1532(19)). The U.S. 
Fish and Wildlife Service (FWS) issued a regulation further defining 
the term ``harm'' to eliminate confusion concerning its meaning (40 FR 
44412; 46 FR 54748). The FWS' definition of ``harm'' has been upheld by 
the Supreme Court as a reasonable interpretation of the term and 
supported by the broad purpose of the ESA to conserve endangered and 
threatened

[[Page 24149]]

species (See Babbitt v. Sweet Home Chapter of Communities for a Greater 
Oregon, 115 S. Ct. 2407, 2418, 1995). With the listings of Pacific 
salmon and steelhead stocks, potentially affected parties have 
questioned whether NMFS also interprets harm to include habitat 
destruction. This proposed rule clarifies that NMFS' interpretation of 
harm is consistent with that of FWS.

Definitions and Source of Authority

    NMFS interprets the term ``harm'' as an act that actually kills or 
injures fish or wildlife. Such an act may include significant habitat 
modification or degradation where it actually kills or injures fish or 
wildlife by significantly impairing essential behavioral patterns, 
including breeding, spawning, rearing, migrating, feeding, and 
sheltering (Compare 50 CFR 17.3). The habitat modification or 
degradation contained in the definition of ``harm'' is limited to those 
actions that actually kill or injure listed fish or wildlife.
    This proposed rule is reasonable for the conservation of the 
habitats of listed species. Congress acknowledged these needs by 
stating in the ``Purposes'' subsection of the ESA: ``The purposes of 
this Act are to provide a means whereby the ecosystems upon which 
endangered species and threatened species depend may be conserved * * 
*.'' (16 U.S.C. 1531(b)). In addition to the text contained in the 
``Purposes'' subsection, which indicates the broad goals of the ESA, 
the structure and legislative history of the ESA indicate Congressional 
intent to protect the habitats of listed species (Babbitt v. Sweet Home 
Chapter of Communities for a Greater Oregon, 115 S. Ct. 2407, 2418, 
1995).

Activities That May Constitute a Take

    A principle purpose of this proposed rule is to provide clear 
notification to parties that habitat modification or degradation may 
harm listed species and, therefore, constitute a ``take'' under the 
ESA. The following list identifies several examples of habitat-
modifying activities that may fall within the scope of this proposed 
rule when the activities actually kill or injure fish or wildlife. This 
list is not exhaustive:
    1. Constructing or maintaining barriers that eliminate or impede a 
listed species' access to habitat essential for its survival or 
recovery;
    2. Removing, poisoning, or contaminating plants, fish, wildlife, or 
other biota required by the listed species for feeding, sheltering, or 
other essential functions;
    3. Discharging pollutants, oil, toxic chemicals, radioactivity, 
carcinogens, mutagens, or teratogens into a listed species' habitat;
    4. Removing or altering rocks, soil, gravel, vegetation, or other 
physical structures that are essential to the integrity and function of 
a listed species' habitat;
    5. Removing water or otherwise altering streamflow when it is 
likely to impair spawning, migration, or other essential functions;
    6. Releasing non-indigenous or artificially propagated individuals 
into a listed species' habitat;
    7. Constructing or operating inadequate fish screens or fish 
passage facilities at dams or water diversion structures in a listed 
species' habitat;
    8. Constructing or using inadequate bridges, roads, or trails on 
stream banks or unstable hill slopes adjacent or above a listed 
species' habitat; and
    9. Constructing or using inadequate pipes, tanks, or storage 
devices containing toxic substances, where the release of such a 
substance is likely to significantly modify or degrade listed species' 
habitat.

Incidental Take Exceptions

    The ESA authorizes NMFS to exempt parties from its take 
prohibitions under certain circumstances. Under section 7 of the ESA, 
NMFS conducts consultations on proposed Federal actions and determines 
whether the proposed action is likely to jeopardize the continued 
existence of a listed species or to result in the destruction or 
adverse modification of its critical habitat. If the proposed action 
does not do so or would not if specified reasonable and prudent 
alternatives were followed, NMFS may then issue a biological opinion 
and incidental take statement. The incidental take statement estimates 
the expected incidental take of a listed species resulting from the 
action and specifies those terms and conditions required to implement 
the reasonable and prudent measures necessary or appropriate to 
minimize this incidental take. If the proposed action is conducted in 
accordance with these terms and conditions, the incidental take is 
exempted from the ESA's take prohibitions.
    Under section 10(a)(1)(B), NMFS may permit non-Federal parties to 
take a listed species if such a taking is incidental to, and not the 
purpose of, an otherwise legal activity. Prior to receiving an 
incidental take permit pursuant to 10(a)(1)(B), a non-Federal party 
must prepare a permit application and conservation plan. A conservation 
plan must contain a description of (1) the impact that will likely 
result from the taking; (2) what steps the applicant will take to 
minimize and mitigate the impacts and how these steps will be funded; 
(3) what alternative actions to the take were considered and why they 
are not being utilized; and (4) any measures the Secretary of Commerce 
(Secretary) may require as being necessary or appropriate for the 
purposes of the plan (16 U.S.C. 1539(a)(2)(A)). If the Secretary finds 
that the applicant will minimize and mitigate the impacts of any 
incidental take, and will meet other requirements of section 1539 
(a)(2)(B), the Secretary may issue a permit, legally binding the 
applicant to the conservation measures set forth in the conservation 
plan.
    Congress intended that the conservation planning process be used to 
reduce conflicts between listed species and private development and to 
provide a framework that would encourage ``creative partnerships'' 
between the private sector and local, state, and Federal agencies in 
the interest of endangered and threatened species and habitat 
conservation. NMFS encourages the development of conservation plans and 
intends to continue pursuing such agreements in the future with willing 
parties.

Classification

    The Assistant Administrator for Fisheries, NOAA, has determined 
that this proposed rule will make no change in the existing law. 
Accordingly, the Assistant General Counsel for Legislation and 
Regulation of the Department of Commerce has certified to the Chief 
Counsel for Advocacy of the Small Business Administration that the 
proposed rule, if adopted, would not have a significant economic impact 
on a substantial number of small entities, as described in the 
Regulatory Flexibility Act. Codifying NMFS' current definition of harm, 
as proposed in this rule, will not result in any additional economic 
impact on affected entities. NMFS is not implementing a new policy or 
definition. NMFS definition of harm would remain the same whether or 
not it is codified.
    Non-Federal interests must conduct their actions consistent with 
the requirements of the ESA. When a species is listed, non-Federal 
interests must comply with the prohibitions on takings under section 9 
of the ESA or associated regulations. If the activity is funded, 
permitted or authorized by a Federal agency, that agency must comply 
with the non-jeopardy mandate of section 7 of the ESA, which is also a 
result of the listing of a species, not the clarification of what is 
contained in the definition of harm. Since, under sections 9 and 7, not 
harming a species

[[Page 24150]]

is included in the statutory prohibition, affected entities are 
currently required to meet the existing standards that would be 
codified by this proposed rule, thus, promulgating this rule would not 
result in any additional impact. As such, no initial regulatory 
flexibility analysis has been prepared.
    A draft Environmental Assessment will be made available to provide 
for adequate public review prior to finalizing this regulation.
    This rule does not contain a collection-of-information requirement 
for purposes of the Paperwork Reduction Act.

List of Subjects in 50 CFR Part 217

    Endangered and threatened species, Exports, Fish, Imports, Marine 
mammals, Transportation.

    Dated: April 28, 1998.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set out in the preamble, 50 CFR part 217 is 
proposed to be amended as follows:

PART 217--GENERAL PROVISIONS

    1. The authority citation for part 217 continues to read as 
follows:

    Authority: 16 U.S.C. 742a et seq., 1361 et seq., and 1531-1544, 
unless otherwise noted.

    2. In Sec. 217.12, the definition for ``Harm'' is added in 
alphabetical order to read as follows:


Sec. 217.12  Definitions.

* * * * *
     Harm in the definition of ``take'' in the Act means an act which 
actually kills or injures fish or wildlife. Such an act may include 
significant habitat modification or degradation which actually kills or 
injures fish or wildlife by significantly impairing essential 
behavioral patterns, including, breeding, spawning, rearing, migrating, 
feeding, and sheltering.
* * * * *
[FR Doc. 98-11668 Filed 4-30-98; 8:45 am]
BILLING CODE 3510-22-F