Endangered and Threatened Wildlife and Plants; Definition of ``Harm''

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]

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