Final Regulatory Flexibility Analysis for the Final Rule Defining “Harm” in the Definition of “Take” in the ESA

The National Marine Fisheries Service (NMFS) is issuing a final rule defining the term “harm” contained in the definition of “take” under the Endangered Species Act of 1973 (ESA). This rulemaking will codify NMFS’ interpretation of “harm” is that habitat modification can result in a take under the ESA.

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.

In the May 1, 1998 Federal Register Notice for the proposed rule to define harm (63 FR 24148-24150), NMFS opined 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, and that therefore, a Regulatory Flexibility Analysis would not be required for adoption of the final rule. However, numerous public comments were received in response to the Federal Register Notice and accompanying draft EA requesting that a Regulatory Flexibility Analysis be performed.

This document constitutes NMFS’ Final Regulatory Flexibility Analysis.