[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]
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