We, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS; collectively referred to as the “Services”) rescind the regulatory definition of “harm” in our Endangered Species Act (ESA or the Act) regulations. This rescission removes the regulatory definition of “harm” from the Code of Federal Regulations (CFR) in Title 50 parts 17 and 222.

The Endangered Species Act, as amended, (hereafter referred to as ESA or the Act; 16 U.S.C. 1531 et seq.) prohibits the “take” of endangered wildlife under section 9 (16 U.S.C. 1538). This is part of a detailed statutory scheme that lays different responsibilities, powers, and prohibitions on the federal government and private citizens, as part of an overall effort to protect endangered species. Section 7 of the ESA imposes on the federal government the responsibility to “insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat which is determined by the Secretary . . . to be critical . . . .” (16 U.S.C. 1536(a)(2)). Section 5 empowers the federal government to purchase private property “to conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened species” (16 U.S.C. 1534). And section 9 prohibits private citizens from “tak[ing]” animals that are members of an endangered species (16 U.S.C. 1538).

“Take” is a term with a traditional meaning, i.e., to kill or capture a wild animal. See Oxford English Dictionary (1933; third printing in February 1973). The Act provides its own definition in section 3, which expands that meaning slightly: “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). This definition “make[s] clear” that “take,” as used in the statute, “include[s] not just a completed taking, but the process of taking, and all of the acts that are customarily identified with or accompany that process . . . so as to include attempts” ( Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 718 (1995) (Scalia, J., dissenting)). This is a slight, sensible, and “not unusual[]” expansion of the traditional definition of “take”; even so, the traditional meaning of “take” remains plainly the core of what is being defined ( Id.).

Thus, under the statutory scheme as enacted, the government would “insure” that its own actions did not “jeopardize the continued existence of any endangered species or threatened species” or “result in the destruction or adverse modification of” critical habitat (a statutory term that is different from the habitat, simpliciter, of the species). Meanwhile, where government action is not involved, the Act protects endangered species in two ways: by directly prohibiting citizens from killing, injuring, or capturing any member of those species (or attempting to do so), and by purchasing the land of private citizens to assist in conservation. To complete this regime, Section 10 then creates an incidental-take regime for when such take is nonetheless inevitable in the pursuit of some other activity, as when fishing for a non-endangered species of fish will, inadvertently but inevitably, lead to the catch of an endangered species of fish.

Dates

This final rule is effective September 14, 2026.

Comments

Public comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available online at https://www.regulations.gov in Docket No. FWS-HQ-ES-2025-0034.

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