24148 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 / Proposed Rules

U.S.C. 801(a)(1)(A). A copy of this IRFA

will also be published in the Federal

Register.

B. Paperwork Reduction Act of 1995

Analysis

29. The requirements proposed in this

Notice have been analyzed with respect

to the Paperwork Reduction Act of 1995

(the ‘‘1995 Act’’) and would impose new

and modified information collection

requirements on the public. The

Commission, as part of its continuing

effort to reduce paperwork burdens,

invites the general public to take this

opportunity to comment on the

proposed information collection

requirements contained in this Notice,

as required by the 1995 Act. Public

comments are due June 30, 1998.

Comments should address: (a) whether

the proposed collection of information

is necessary for the proper performance

of the functions of the Commission,

including whether the information

would have practical utility; (b) the

accuracy of the Commission’s burden

estimates; (c) ways to enhance the

quality, utility, and clarity of the

information collected; and (d) ways to

minimize the burden of the collection of

information on the respondents,

including the use of automated

collection techniques or other forms of

information technology.

30. Written comments by the public

on the proposed new and modified

information collection requirements are

June 30, 1998. Comments should be

submitted to Judy Boley, Federal

Communications Commission, Room

234, 1919 M Street, NW., Washington,

D.C. 20554, or via the Internet to

jboley@fcc.gov. For additional

information on the proposed

information collection requirements,

contact Judy Boley at 202–418–0214 or

via the Internet at the above address.

C. Ex Parte Presentations

31. The NPRM is a permit but disclose

notice and comment rule making

proceeding. Ex parte presentations are

permitted, except during the Sunshine

Agenda period, provided they are

disclosed as provided in Commission

rules. See generally 47 CFR 1.1202,

1.1203, and 1.1206(a).

D. Comments

32. Pursuant to applicable procedures

set forth in §§ 1.415 and 1.419 of the

Commission’s rules, interested parties

may file comments on or before June 22,

1998 and reply comments on or before

July 7, 1998. To file formally in this

proceeding, you must file an original

and four copies of all comments, reply

comments, and supporting comments.

Parties are also asked to submit, if

possible, draft rules that reflect their

positions. If you want each

Commissioner to receive a personal

copy of your comments, you must file

an original and eleven copies.

Comments and reply comments should

be sent to Office of the Secretary,

Federal Communications Commission,

1919 M Street, NW., Room 222,

Washington, D.C. 20554, with a copy to

Thomas Horan of the Cable Services

Bureau, 2033 M Street, NW., 7th Floor,

Washington, D.C. 20554. Parties should

also file one copy of any documents

filed in this docket with the

Commission’s copy contractor,

International Transcription Services,

Inc., 1231 20th Street, NW.,

Washington, D.C. 20037. Comments and

reply comments will be available for

public inspection during regular

business hours in the FCC Reference

Center, 1919 M Street, NW., Room 239,

Washington, D.C. 20554.

33. Parties are also asked to submit

comments and reply comments on

diskette, where possible. Such diskette

submissions would be in addition to

and not a substitute for the formal filing

requirements addressed above. Parties

submitting diskettes should submit

them to Thomas Horan of the Cable

Services Bureau, 2033 M Street, NW.,

7th Floor, Washington, D.C. 20554.

Such a submission must be on a 3.5

inch diskette formatted in an IBM

compatible form using MS DOS 5.0 and

WordPerfect 5.1 software. The diskette

should be submitted in ‘‘read only’’

mode. The diskette should be clearly

labelled with the party’s name,

proceeding, type of pleading (comment

or reply comments) and date of

submission. The diskette should be

accompanied by a cover letter.

List of Subjects in 47 CFR Part 76

Administrative practice and

procedure.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

[FR Doc. 98–11617 Filed 4–30–98; 8:45 am]

BILLING CODE 6712–01–F

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.

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
Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 / Proposed Rules 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
24150 Federal Register / Vol. 63, No. 84 / Friday, May 1, 1998 / Proposed Rules

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 § 217.12, the definition for

‘‘Harm’’ is added in alphabetical order

to read as follows:

§ 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