[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
