[Federal Register Volume 64, Number 215 (Monday, November 8, 1999)]
[Rules and Regulations]
[Pages 60727-60731]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29216]
[[Page 60727]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
[Docket No. 980414094-9287-02; 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: Final rule.
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SUMMARY: This final rule defines the term ``harm'', which is contained
in the definition of ``take'' in the Endangered Species Act (ESA). The
purpose of this rulemaking is to clarify the type of actions that may
result in a take of a listed species under the ESA. This final rule is
not a change in existing law. It provides clear notification to the
public that habitat modification or degradation may harm listed species
and, therefore, constitutes a take under the ESA as well as ensuring
consistency between NMFS and the Fish and Wildlife Service (FWS). This
final rule defines the term ``harm'' to include any act which actually
kills or injures fish or wildlife, and emphasizes that such acts may
include significant habitat modification or degradation that
significantly impairs essential behavioral patterns of fish or
wildlife.
DATES: This rule is effective on December 8, 1999.
ADDRESSES: Chief, Endangered Species Division, Office of Protected
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Chris Mobley, 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
On May 1, 1998, NMFS published a proposed rule and request for
comments. NMFS proposed to define the term ``harm'', which is contained
in the definition of ``take'' in the Endangered Species Act (63 FR
24148). In that proposed rule, NMFS solicited public comments on the
proposed definition. On June 11, 1998, NMFS announced the availability
of, and solicited comments on, a draft Environmental Assessment on the
proposed definition (63 FR 31962). This final rule takes into
consideration the comments received in response to the proposed rule.
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 species (See Babbitt v. Sweet Home Chapter of Communities
for a Great 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 final 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 which 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 or sheltering
(Compare 50 CFR 17.3).
This 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 Great Oregon, 115 S. Ct. 2407, 2418, 1995).
Summary of Comments Received in Response to the Proposed Rule
Fifty-three written comments were submitted in response to the
proposed rule and 9 written comments were submitted in response to the
draft Environmental Assessment prepared for the proposed rule. These
comments and NMFS' responses are summarized here.
Comment 1: Explain what habitat or activities would be encompassed
by ``spawning, rearing and migrating'' and how it is different from
``breeding, feeding or sheltering'' in the FWS' regulation. Is it
different or similar or the same as ``essential behavioral patterns.''
Response: Including the terms ``spawning'', ``rearing'' and
``migrating'' in the NMFS definition of harm makes it clear that NMFS
considers these behaviors to be ``essential behavioral patterns''. NMFS
believes it is important to include these terms because they describe
essential behavioral patterns for most species under NMFS jurisdiction.
NMFS is particularly concerned with addressing harm caused by
significant habitat modification or degradation to anadromous and
migratory species. Habitat destruction may occur at times when
migratory species are not present, but may nonetheless impair essential
behavioral patterns when the animals return, resulting in sub-lethal or
chronic injury or mortality.
For example, improperly sited aquaculture facilities and their
attendant vessel traffic, fixed structures, noise pollution, artificial
light, and human activity may obstruct marine mammal and turtle access
to habitats of critical importance to their survival, such as haul out
sites, breeding grounds and nesting beaches.
It should be noted that spawning is a specific term for fish
breeding. Salmon require clean gravel beds for successful spawning.
Sedimentation from timber harvest operations may plug the interstitial
spaces in gravel spawning areas, resulting in reduced survival of
salmon eggs during their incubation period.
Similarly, for species under NMFS jurisdiction, ``rearing'' and
``migration'' should be broadly interpreted to include many of the
behavioral patterns associated with ``feeding'' and ``sheltering''. For
example, in order to successfully rear and migrate, juvenile salmonids
must successfully feed, and also must find adequate shelter in the form
of large woody debris and other instream structures in order to avoid
predation. Excessive squid and pollock harvest near Steller sea lion
rookeries may impair feeding and rearing of juvenile Steller sea lions
by reducing their available food supply.
``Migration'' is a particularly important behavioral pattern in the
anadromous life history and, therefore,
[[Page 60728]]
merits specific mention in the definition. Juveniles must be able to
pass downstream from spawning grounds to the open ocean, and adults
must be able to return from the ocean to spawning grounds. Human-made
barriers to adult migration (thermal barriers, other water quality
barriers, and physical barriers) that significantly impede spawning
success, or result in significantly increased rates of juvenile injury
or mortality would be considered by NMFS to be within the NMFS
definition of ``harm'' under the ESA.
Comment 2: One commenter opposed the use of ``spawning, rearing and
migrating'' because interference with such activities will not in ``all
cases result in injury to individual fish.''
Response: NMFS disagrees. While not all impacts to a species'
habitat impair essential behavioral patterns, any habitat modification
that significantly impairs spawning, rearing, or migrating does
constitute harm to the species and is a take pursuant to the provisions
of the ESA.
Comment 3: One commenter noted that the rule should only apply to
``significant habitat modification'' which ``results in demonstrated
impairment of essential behaviors.'' Another commenter stated that NMFS
must clarify that impairment of essential behavior patterns is not
``injury'' in and of itself but a means to injury--these are two
separate elements in establishing harm.
Response: NMFS disagrees. An injury is demonstrated if the habitat
modification significantly impairs the listed species' ability to feed,
breed, rear, migrate or any other behavior essential to its biological
processes and behavioral patterns. ``Significant'' impairment of
essential behavioral patterns constitutes injury; therefore,
establishing the former with respect to listed species establishes
harm.
Comment 4: Several commenters stated that the public needs clear
prospective guidance on activities that could constitute a prohibited
take. Commenters sought greater specificity on likely results of water
withdrawals and streambed or land clearing activities. Some commenters
expressed concern that NMFS is relying on ``probabilistic data'' and
not empirical evidence in determining ``harm.''
Response: The list of examples provided in this final rule (see
``Activities That May Constitute A Take'') as well as in the proposed
rule is intended to provide general guidance to the public on the types
of habitat-modifying activities that could result in injury to fish or
wildlife. While not exhaustive, this list was developed based on direct
experience with managing populations in their natural environment, and
from the scientific literature. NMFS cannot provide further detailed
guidance in this definition, since the actual impacts of a given act
depend on situation-specific conditions. Individuals conducting
activities similar to those listed in the examples in areas in or near
listed species and their habitat should consult with NMFS for more
specific guidance.
In order to determine ``harm,'' the regulation requires that a
causal link or relationship between a specific activity or series of
activities and the injury or death of listed species be demonstrated.
Injury may be shown through a variety of methods and types of evidence.
These include, but are not limited to, field surveys and assessments,
population studies, laboratory studies, model based procedures,
information and data in the scientific literature, or expert witness
testimony consisting of inferences or opinions drawn from facts
pertaining to a given act(s) of habitat modification or degradation. In
some instances, the effect of an activity will be measurable using
physical evidence and scientific instruments. For example, the
introduction of toxic chemicals can be evaluated through chemical
analysis of water samples. Analysis of sedimentation patterns by the
Monitoring Study Group of the California State Board of Forestry has
demonstrated that timber-harvest roads and their associated watercourse
crossings are among the largest contributors to sedimentation of fish-
bearing streams. Mass landslides and other failures typically related
to road-building and maintenance activities, produced the highest
sediment delivery to streams when compared to other erosion processes.
Regardless of the types of evidence used, in all cases, the
regulation requires that the causal link(s) between the habitat
modification and the injury to listed species be shown.
Comment 5 : Another commenter stated that it is very difficult to
determine when and whether modifications to aquatic habitat will injure
fish. Sometimes it is activities occurring upstream from the apparent
injury and sometimes it is simply cumulative degradation of the fish
habitat.
Response: NMFS agrees that sometimes it is difficult to isolate
factors causing injury to listed species. All factors that reasonably
could have caused the habitat modification or the injury itself must be
carefully examined. Whenever an action alone or in combination with,or
in concert with other actions is reasonably certain to injure or kill
listed species, it will constitute a take. An action which contributes
to injury can be a ``take'' even if it is not the only cause of the
injury. This concept includes actions reasonably certain to contribute
to the death or injury of listed species by significantly impairing the
essential behavioral patterns of listed species.
Comment 6: ``Significant modification'' should be defined or
explained. Another commenter noted that NMFS must connect the
maintenance of existing roads and structures or minor alterations of
rock, gravel and soil to actual harm to listed species.
Response: In order for a modification to be significant, it must be
capable of resulting in the death or injury of fish or wildlife.
Habitat modification or degradation may be considered significant even
if it is of limited physical extent, if it causes injury or death to
fish or wildlife. Assessing the significance of a given act of habitat
modification or degradation will depend on an evaluation of all the
available evidence of a specific situation or action(s), and will most
often be determined on a case-by-case basis.
Comment 7: The regulation is overly focused on land based
activities compared to harvest and hatchery activities with the effect
that the rule excludes entire industries that directly cause harm and
kill listed fish.
Response: Take due to harvest and hatchery activities is covered by
other terms in the statutory definition of ``take,'' including ``wound,
kill, * * * capture, or collect.'' The primary focus of this regulation
is death or injury to listed fish or wildlife from acts that
significantly modify or degrade habitat.
Moreover, hatchery and harvest activities also impact listed fish
through significant habitat modification or degradation. For example,
hatchery waste discharges could degrade instream water quality and
result in the actual injury or death of fish if not properly managed.
Artificially produced fish competing with listed species for food,
shelter, space or opportunities in the migration corridor may, thus,
impair essential behavioral patterns. NMFS notes that example 6 in
``Activities That May Constitute A Take'' concerning the introduction
of artificially produced individuals may cause harm within the scope of
this definition. Excessive trawl impacts to estuarine bottom habitat
could significantly degrade juvenile rearing habitat, and over-harvest
of prey species such as small bait fish could cause harm if feeding
rates were thereby
[[Page 60729]]
reduced enough to cause the actual injury or death of listed fish or
wildlife.
Comment 8: One commenter noted that it is inappropriate for NMFS to
use the word ``recovery'' in describing activities that may injure or
``harm'' listed fish. Commenters noted that NMFS lacks the authority to
link ``take'' to recovery goals.
Response: Comment noted. The word ``recovery'' was inadvertently
included in the first example of activities that might fall within the
scope of the definition of harm. This has been deleted in the final
rule.
Comment 9: Some commenters suggested that the proposed rule, if
adopted, would constitute an uncompensated ``taking'' in violation of
the Fifth Amendment of the U.S. Constitution.
Response: This final rule will make no change in existing law. NMFS
is not seeking to impose a regulation that denies landowners
economically viable use of their property.
As stated elsewhere in this final rule under ``Incidental Take
Exceptions'', the ESA authorizes NMFS to exempt parties from its take
prohibitions under certain circumstances. Under the terms of ESA
section 7(b)(4) and section 7(o)(2), taking of listed species that is
incidental to, and not intended as part of, an otherwise lawful
activity is not considered prohibited taking provided that such taking
is in compliance with the terms and conditions of an incidental take
statement issued by NMFS. In addition, the 1982 ESA amendments to
section 10(a) authorize NMFS to issue incidental take permits allowing
the incidental take of listed species in the course of otherwise lawful
activities, provided the activities are conducted according to an
approved Conservation Plan which to the maximum extent practicable,
minimizes and mitigates the impacts of such taking and avoids jeopardy
to the continued existence of the affected species. These mechanisms
provide landowners with a means of continuing to use their property
while addressing possible incidental take of listed species.
As the Solicitor General explained in the Federal government's
reply brief in Sweet Home (Gov't Reply Br. at 17), ``[t]he prohibition
on the taking of species, in conjunction with the program for
authorizing incidental takes, * * * rationally and flexibly addresses
the inherent difficulties involved in defining prohibited conduct in
light of the wide diversity of species and the range of circumstances
in which they live.''
Comment 10: Some commenters argued that the proposed rule is
inconsistent with the U.S. Supreme Court's decision in Babbitt v. Sweet
Home. In particular, some commenters felt the rule did not require an
actual causal relationship between the habitat modification and the
injury or death of an individual listed species.
Response: As stated previously, in order to constitute ``harm'',
the regulation requires that a given act result in, or be reasonably
certain to result in, the death or injury of listed fish or wildlife.
The rule is consistent with the U.S. Supreme Court's decision in Sweet
Home upholding the FWS regulation which also defines the term ``harm''
to include habitat modification or degradation.
Comment 11: One commenter suggested that NMFS must specifically
state that it adopts the interpretation of ``harm'' articulated by the
Solicitor General in his brief of the Sweet Home case.
Response: NMFS believes that this final rule is consistent with the
interpretation of ``harm'' articulated by the Solicitor General.
However, NMFS declines to specifically adopt each aspect of the
Solicitor General's brief which was written 5 years ago.
Comment 12: One commenter argued that NMFS has no authority to
promulgate the proposed rule because the Endangered Species Act expired
in 1992 and has not been reauthorized by Congress.
Response: The ESA has been neither repealed nor does it contain an
automatic sunset clause and it is, therefore, enforceable law. In
addition, both the Departments of Commerce and Interior receive annual
appropriations to carry out the provisions of the Endangered Species
Act, including listings, rulemakings, enforcement and the issuance of
permits.
Comment 13: Several commenters disagreed with NMFS' certification
that the proposed rule will not impact a significant number of small
businesses and urged NMFS to prepare a Regulatory Flexibility analysis.
Response: NMFS continues to believe that this rulemaking will not
affect a significant number of small businesses. However, a Regulatory
Flexibility Analysis is included with this final rulemaking.
Comment 14: One commenter suggested that the first example of
``take'' in the proposed rule was ambiguous because it states that
activities modifying habitat include those ``constructing or
maintaining barriers that eliminate or impede a listed species access
to habitat essential for its survival or recovery''. The commenter
stated that existing facilities that prevent or impede access to
potential habitat that could be used for the recovery of the species do
not cause a ``take''. Several other commenters stated that the current
owner of a dam lawfully installed before a species is listed should not
be liable for take based on subsequent listing. In the view of these
commenters liability for take must be based upon some action occurring
after the effective date of listing.
Response: See response to comment 8 where the word recovery was
stricken from the example in this final rule. NMFS agrees that simply
holding title to a barrier that affects access to the habitat of listed
species is not necessarily a take under the ESA. However, maintaining
or improving an existing facility may actually injure or kill members
of a listed species if it significantly impairs essential behavioral
patterns such as spawning, rearing or migrating. Maintaining an
existing barrier that prevents or impedes access to habitat may cause
take of listed species, if adequate comparable habitat is not otherwise
available to the listed population. In addition, any person who engages
in diverting water may be engaged in a take if the diversion of water
injures or kills listed species by significantly impairing essential
behavioral patterns.
Comment 15: Several commenters noted the use of ``likely to
impair'' as inappropriate in the examples provided in the preamble to
the proposed rule.
Response: NMFS agrees and has made the necessary changes in this
final rule. NMFS notes that an act must be reasonably certain to impair
essential behavioral patterns of listed species in order to constitute
``harm'' within this definition.
Comment 16: Several commenters urged or stated that NMFS was
required to specifically adopt the legal principles of ``proximate
cause'' and ``foreseeability'' as limitations of liability for ``harm''
to listed species. One commenter noted that NMFS should clarify that
the regulation does not create liability for hypothetical, speculative
or conjectural injury.
Response: NMFS agrees that the regulation does not create liability
for hypothetical, speculative or conjectural injury as can be deduced
from the term ``actual.'' NMFS notes that that same term ``actual''
provides for cause-in-fact liability. NMFS' definition of ``harm'' is
consistent with the views articulated in the opinion of the U.S.
Supreme Court in Sweet Home v. Babbitt. In that opinion, the Court did
not limit its discussion to a single term of art for the causal links
necessary to show ``harm'' to a species resulting from habitat
[[Page 60730]]
modification. The specific elements of causation to be proved,
including foreseeability, will be determined on a case-by-case basis.
Further, this document and the examples discussed in it, are intended
to provide the public with information about activities which may
result in injury or death of listed species. In NMFS' view, it is
reasonably foreseeable that these activities and similar activities may
injure or kill fish and wildlife, including listed species. While an
action ``harms'' a listed species only if it actually results in the
death or injury of a listed species, NMFS continues to encourage
members of the public to consult with its staff whenever an activity is
undertaken in the habitat of listed species and/or when listed species
are present.
Comment 17: One commenter noted that ``merely continuing previously
established [water] withdrawals or diversions should not be considered
per se an unlawful take of subsequently listed species.'' The commenter
further noted that new water withdrawals or diversions should not be
considered unlawful takes because Congress has a long-standing history
of deference to state law on water rights. The commenter lastly notes
that example 5 (see ``Activities That May Constitute A Take'') should
be deleted in favor of an ``ad hoc, case-by-case approach'' and that
such water diversions should be carefully reviewed and responded to as
appropriate.
Response: NMFS agrees that each water diversion affecting listed
species should be carefully reviewed on a case-by-case basis to
determine whether its operation injures or kills listed species. The
ESA and state water law operate in cognizance of the principles of
comity, federalism and importance of reading apparently conflicting
laws in such a manner as to avoid conflict and promote the purposes of
both legislative acts wherever possible. It is appropriate to note that
the Endangered Species Act encourages this approach by declaring it
``to be the policy of Congress that the Federal agencies shall
cooperate with State and local agencies to resolve water resource
issues in concert with conservation of endangered species.'' 16 U.S.C.
Sec. 1531(c)(2).
Activities That May Constitute a Take
A principal purpose of this final 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 final rule
when these or similar activities cause death or injury to fish or
wildlife, including those activities that significantly impair
essential behavioral patterns of listed species. In all instances a
causal link must be established between the habitat modification and
the injury or death of listed species.
1. Constructing or maintaining barriers that eliminate or impede a
listed species' access to habitat or ability to migrate;
2. Discharging pollutants, such as oil, toxic chemicals,
radioactivity, carcinogens, mutagens, teratogens or organic nutrient-
laden water including sewage water into a listed species' habitat;
3. Removing, poisoning, or contaminating plants, fish, wildlife, or
other biota required by the listed species for feeding, sheltering, or
other essential behavioral patterns;
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
significantly impairs spawning, migration, feeding or other essential
behavioral patterns;
6. Releasing non-indigenous or artificially propagated species into
a listed species' habitat or where they may access the habitat of
listed species;
7. Constructing or operating dams or water diversion structures
with inadequate fish screens or fish passage facilities in a listed
species' habitat;
8. Constructing, maintaining or using inadequate bridges, roads, or
trails on stream banks or unstable hill slopes adjacent to or above a
listed species' habitat; and
9. Conducting timber harvest, grazing, mining, earth-moving or
other operations which result in substantially increased sediment input
into streams.
10. Conducting land-use activities in riparian areas and areas
susceptible to mass wasting and surface erosion, which may disturb soil
and increase sediment delivered to streams, such as logging, grazing,
farming, and road construction.
This list is not exhaustive. It is intended to provide some
examples of the types of activities that might be considered by NMFS as
constituting a take under the ESA and its regulations. Questions
regarding whether specific activities will constitute a violation of
this rule and general inquiries regarding prohibitions and permits
should be directed to NMFS (see ADDRESSES).
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 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 to the maximum extent practicable, 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 to the maximum extent practicable 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
[[Page 60731]]
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.
Change in Enumeration of Threatened and Endangered Species
In the proposed rule, issued on May 1, 1998 (63 FR 24148), the
definition of harm was added in alphabetical order to 50 CFR 217.12.
Since May 1, 1998, NMFS has issued a final rule consolidating and
reorganizing existing regulations regarding implementation of the ESA.
In this reorganization, Sec. 217.12 has been redesignated as
Sec. 222.102; therefore, the definition of harm has been added in this
final rule to Sec. 222.102.
Classification
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. requires
the preparation of an initial and final Regulatory Flexibility Analyses
unless an agency determines that a rule, if promulgated, will not have
a significant economic impact on a substantial number of small
entities. A final Regulatory Flexibility Analysis has been prepared for
this action and is available from NMFS (see ADDRESSES).
A Final Environmental Assessment and Finding of No Significant
Impact have been completed for this final rule.
This rule does not contain a collection-of-information requirement
for purposes of the Paperwork Reduction Act.
The Assistant Administrator for Fisheries, NOAA (AA), has
determined that this rule will make no change in existing law.
List of Subjects in 50 CFR Part 222
Administrative practice and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
Dated: November 2, 1999.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 222 is amended
as follows:
PART 222--GENERAL ENDANGERED AND THREATENED MARINE SPECIES
1. The authority citation for part 222 continues to read as
follows:
Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.; 31
U.S.C. 9701.
2. In Sec. 222.102, the definition for ``Harm'' is added in
alphabetical order to read as follows:
Sec. 222.102 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 or sheltering.
* * * * *
[FR Doc. 99-29216 Filed 11-5-99; 8:45 am]
BILLING CODE 3510-22-F
