[Federal Register Volume 63, Number 112 (Thursday, June 11, 1998)]
[Notices]
[Pages 31962-31963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15593]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 052998B]
Endangered and Threatened Species; Notice of Availability of a
Draft Environmental Assessment for Review and Comment
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice of availability.
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SUMMARY: NMFS has prepared a draft Environmental Assessment (EA) for
the
[[Page 31963]]
proposed definition of ``harm'' as used in the Endangered Species Act
(ESA). NMFS seeks public comment.
DATES: Comments on the draft EA must be received by July 13, 1998, if
they are to be considered during preparation of a final EA.
ADDRESSES: Requests for a copy of the draft EA should be addressed to
National Marine Fisheries Service, 1315 East West Highway, Room 13604,
Silver Spring, MD 20910; telephone: 301-713-1401, or it can be obtained
from the National Marine Fisheries Service Office of Protected
Resources Web Page (www.nmfs.gov/tmcintyr). Written comments and
materials regarding the draft EA should be directed to the same
address. Comments will not be accepted via e-mail or the world wide
web.
FOR FURTHER INFORMATION CONTACT: Joe Blum, National Marine Fisheries
Service, Office of Protected Resources, 1315 East West Highway, Silver
Spring, MD, 20910.
SUPPLEMENTARY INFORMATION:
Background
This draft EA examines the environmental impact of defining the
term ``harm'' as used in the definition of ``take'' in the Endangered
Species Act (ESA). Section 9 of the ESA makes it illegal to ``take'' an
endangered species of fish or wildlife. The definition of ``take'' in
the ESA 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 defining further the term ``harm'' to
eliminate confusion concerning its meaning (40 FR 44412, September 26,
1975; 46 FR 54748, November 4, 1981). The FWS' definition of ``harm''
has been upheld by the Supreme Court as a reasonable interpretation and
supported by the purpose of the ESA to conserve endangered and
threatened species (See Babbitt v. Sweet Home Chapter of Communities
for a Greater Oregon, 115 S. Ct. 2407, (1995)). NMFS does not have a
definition in its ESA regulations. With the recent listings of Pacific
salmon and steelhead stocks, interested parties have inquired whether
the NMFS interprets harm in the same manner as FWS and includes habitat
destruction as ``harm'' to a listed species. The proposed action is to
adopt a rule that clarifies NMFS' interpretation of harm that is
consistent with that of FWS.
The NMFS has no definition comparable to FWS' definition of
``harm'' in its ESA regulations; therefore, enforcement actions must
rely solely on the statutory language of the ESA. While NMFS may
prevail in court based on ``harm'' precedents and definitions
established by the FWS, a formal interpretation by NMFS improves notice
to the public of NMFS' views and provides the administrative foundation
for enforcement of the ESA.
The proposed rule does not constitute a change in the existing law.
It is a clarification to ensure consistency between NMFS and FWS.
Public Comments Solicited
NMFS intends that the final EA will take advantage of information
and recommendations from all interested parties. Therefore, comments
and suggestions are hereby solicited from the public, other concerned
governmental agencies, the scientific community, industry, and any
other person concerned with this draft EA.
Dated: June 5, 1998.
Patricia Montantio,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 98-15593 Filed 6-10-98; 8:45 am]
BILLING CODE 3510-22-F
