[Federal Register: September 11, 2009 (Volume 74, Number 175)]
[Rules and Regulations]
[Page 46835-46879]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11se09-7]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Parts 13 and 22
Eagle Permits; Take Necessary To Protect Interests in Particular
Localities; Final Rules
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 22
[FWS-R9-MB-2008-0057;
91200-1231-9BPP-L2]
RIN 1018-AV81
Eagle Permits; Take Necessary To Protect Interests in Particular
Localities
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: In conjunction with release of a final environmental
assessment of this action, the U.S. Fish and Wildlife Service (``we''
or ``the Service'') is finalizing permit regulations to authorize
limited take of bald eagles (Haliaeetus leucocephalus) and golden
eagles (Aquila chrysaetos) under the Bald and Golden Eagle Protection
Act (Eagle Act), where the take to be authorized is associated with
otherwise lawful activities. These regulations also establish permit
provisions for intentional take of eagle nests under particular,
limited circumstances.
DATES: This rule goes into effect on November 10, 2009.
FOR FURTHER INFORMATION CONTACT: Eliza Savage, Division of Migratory
Bird Management, via e-mail at eliza_savage@fws.gov; telephone: 703-
358-2329; or U.S. Fish and Wildlife Service, 4401 North Fairfax Drive,
Mailstop 4107, Arlington, Virginia 22203-1610.
SUPPLEMENTARY INFORMATION:
Background
These final regulations authorize the limited take of bald eagles
and golden eagles under the Bald and Golden Eagle Protection Act (Eagle
Act) (16 U.S.C. 668-668d), where the take to be authorized is
associated with otherwise lawful activities. These regulations also
establish permit provisions for intentional take of eagle nests where
necessary to ensure public health and safety and in other limited
circumstances. We proposed these regulations on June 5, 2007 (72 FR
31141) and provided a 90-day public comment period, which closed on
September 4, 2007. The Service received approximately 21,500 comments,
about 21,400 of which are essentially identical. Thirty-five
respondents provided substantive input that was helpful in crafting
final regulations. The 35 respondents consisted of: one Federal agency,
three tribes, six State conservation agencies, four flyway committees
(associations of State conservation agencies), one State department of
transportation, five environmental non-governmental organizations
(NGOs), four industry associations, three law firms/consultants on
behalf of Florida development companies, two power companies, one
Federal reclamation project, one airport, three rail transportation
companies (commenting together), and three private citizens.
We released a draft environmental assessment (DEA) of the action on
August 14, 2008 (73 FR 47574) and re-opened the public comment period
on the proposed rule with some revisions noted in the August 14 Federal
Register notice. During that 30-day comment period, we received 58
comments from: one airport, three electric utilities, three Federal
agencies, ten individuals (non-tribal), five industry associations,
nine NGOs, one conglomeration of railroad companies, 13 State agencies,
three flyway committees, one transportation association, three Native
American tribal members one tribal Department of Natural Resources,
three tribes, and two confederations of tribes.
Based on public comment received on the June 5, 2007 proposed rule,
new information compiled through the process of drafting the DEA, and
public comment on the DEA and re-opened rule, we developed this final
rule, the final environmental impact assessment (FEA), and a Finding of
No Significant Impact. Along with a variety of small changes, this
final rule contains the following significant additions and revisions
from the June 5, 2007, proposed rule:
The rule was split into two rules to be finalized
separately from one another. The original proposal to extend (or
``grandfather'') Eagle Act take authorization to take previously
authorized under the Endangered Species Act (ESA) (16 U.S.C. 1531 et
seq.) has been separated from the remainder of the provisions in order
to finalize the ``grandfathering'' provisions more expeditiously. Those
provisions were published as a final rule on May 20, 2008 (73 FR
29075).
We modified our interpretation (provided in the June 5,
2007, proposed rule) of the statutory mandate that permitted take be
``compatible with the preservation of the bald eagle or the golden
eagle.'' In the original proposal, we proposed to use the standard that
regional and national eagle populations not decline at a rate greater
than 0.54% annually. In this final rule, we interpret the
``preservation'' standard to allow actions that are consistent with the
goal of stable or increasing breeding populations.
The rule includes new issuance criteria to ensure that,
except for safety emergencies, Native American religious needs are
given first priority if requests for eagle take permits exceed take
thresholds that are compatible with the preservation of the bald eagle
or the golden eagle.
The rule no longer provides different issuance criteria
for lethal versus non-lethal take. Rather, it contains separate
provisions for programmatic take versus individual instances of take.
We amend the existing Eagle Depredation Permit regulations
at 50 CFR 22.23 to extend permit tenure from 90 days to up to 5 years
for purposes of hazing eagles. The purpose of these revisions is to
enable issuance of permits that combine programmatic authorizations
provided under Sec. 22.23 and the regulations in this final rule. We
are also taking the opportunity to revise terminology throughout Sec.
22.23 to clarify that we can issue permits under that section to
prevent or resolve safety emergencies as well as to protect agriculture
and wildlife.
The rule expands (from the June 2007 proposed rule) the
purposes for which eagle nests may be taken to include take necessary
to ensure public health and safety. The proposed rule limited nest
removal to emergencies where human or eagle safety was imminently
threatened.
Nest take permits may be issued for projects that will
provide a net benefit to eagles (including projects where the net
benefit is the result of compensatory mitigation measures).
Permits may also be issued to take eagle nests built on
human-engineered structures where the nest interferes with the intended
use of the structure.
The rule redefines some terms and includes new definitions
for a number of additional terms used in the regulations.
The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d)
(Eagle Act) prohibits the take of bald eagles and golden eagles unless
pursuant to regulations (and in the case of bald eagles, take can only
be authorized under a permit). While the bald eagle was listed under
the ESA, authorizations for incidental take of bald eagles were granted
through the ESA's section 10 incidental take permits and ESA's section
7 incidental take statements, both of which were issued with assurances
that the Service would exercise enforcement discretion in relation to
violations of the Eagle Act and Migratory Bird Treaty Act (MBTA) (16
U.S.C. 703-712). Upon delisting, all
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prohibitions contained in the ESA, such as those that prescribe the
take of bald eagles, no longer apply. However, the potential for human
activities to violate Federal law by taking eagles remains under the
prohibitions of the Eagle Act and the MBTA. The Eagle Act defines the
``take'' of an eagle to include a broad range of actions: ``pursue,
shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest
or disturb.'' ``Disturb'' is defined in regulations at 50 CFR 22.3 as:
``to agitate or bother a bald or golden eagle to a degree that causes,
or is likely to cause, based on the best scientific information
available, (1) injury to an eagle, (2) a decrease in its productivity,
by substantially interfering with normal breeding, feeding, or
sheltering behavior, or (3) nest abandonment, by substantially
interfering with normal breeding, feeding, or sheltering behavior.''
Many actions that are considered likely to incidentally take (harm
or harass) eagles under the ESA will also disturb or otherwise take
eagles under the Eagle Act. Until now, there was no regulatory
mechanism in place under the Eagle Act to permit take of bald or golden
eagles comparable to incidental take permits under the ESA. This rule
adds a new section at 50 CFR 22.26 to authorize the issuance of permits
to take bald eagles and golden eagles on a limited basis. The
regulations are applicable to golden eagles as well as bald eagles. We
will authorize take of bald or golden eagles only if we determine that
the take (1) is compatible with the preservation of the bald eagle and
the golden eagle and (2) cannot practicably be avoided. For purposes of
these regulations, ``compatible with the preservation of the bald eagle
or the golden eagle'' means ``consistent with the goal of stable or
increasing breeding populations.'' Although the biologically-based take
thresholds for permitting under these regulations will be based on
regional populations (as explained below and in more detail in the
FEA), we will also consider other factors, such as cultural
significance, that may warrant protection of smaller and/or isolated
populations within a region.
We are adding a second new section at 50 CFR 22.27 to authorize the
removal of bald eagle and golden eagle nests where (1) necessary to
alleviate a safety hazard to people or eagles, (2) necessary to ensure
public health and safety, (3) the nest prevents the use of a human-
engineered structure, or (4) the activity, or mitigation for the
activity, will provide a net benefit to eagles. We are also
promulgating new definitions under the Eagle Act to clarify terms used
in the permit regulations. Permit issuance under Sec. 22.26 and Sec.
22.27 will be governed by the permit provisions presently in 50 CFR
parts 13 and 22, and new provisions we are finalizing as Sec. 22.26
and Sec. 22.27.
In our June 5, 2007, proposed rule, we also proposed certain
provisions to extend Eagle Act authorizations to persons previously
granted authorization to take eagles under the ESA. We split the
rulemaking into two separate rules and finalized the ESA-related
provisions separately on May 20, 2008 (73 FR 29075).
Most rules take effect 30 days after Federal Register publication;
however, more time is needed to work out important details about how
this program will be implemented. Therefore this rule has an effective
date of 60 days after publication in the Federal Register. We are
drafting implementation guidance, and will release it for public notice
and comment before officially adopting it. Although the implementation
guidance will not be finalized by the rule's effective date, the extra
30 days will help promote consistency in the initial permit
administration, and we can begin issuing permits using the draft
guidance.
History
On August 8, 2007, the bald eagle was removed from the List of
Threatened and Endangered Wildlife (72 FR 37345, July 9, 2007). The
final delisting rule also constituted our final decision that the
Sonoran Desert population of bald eagles did not qualify as a distinct
population segment (DPS), and was therefore not a listable entity under
the ESA. Our finding on the status of the Sonoran Desert population was
challenged in court. A March 5, 2008, ruling by the U.S. District Court
for the District of Arizona (Center for Biological Diversity v.
Kempthorne, CV 07-0038-PHX-MHM (D. Ariz)) ruled in favor of the
plaintiffs. As a result of the court order, we published two documents
in the Federal Register. First, on May 1, 2008, we published a final
rule reinstating ESA threatened status for bald eagles in the Sonoran
Desert area of central Arizona (73 FR 23966). The final rule also
included a map showing the geographic area where bald eagles are
protected as a threatened species. Second, on May 20, 2008, we
published a notice initiating a status review for bald eagles in the
Sonoran Desert area of central Arizona (73 FR 29096). Once the status
review is completed, we will issue a 12-month finding on whether
listing these bald eagles as a DPS under the ESA is warranted, and if
so, whether that DPS should be listed as threatened or endangered.
We estimate the current number of breeding pairs in the 48
contiguous States to be over 9,700. Bald eagles were never listed as
threatened or endangered in Alaska, where we currently estimate bald
eagles to number between 50,000 and 70,000 birds, including
approximately 15,000 breeding pairs. Bald eagles do not occur in
Hawaii.
Under sections 7(b)(4) and 10(a)(1)(B) of the ESA, we may authorize
the incidental take of listed wildlife that occurs in the course of
otherwise lawful activities. Thus, while the bald eagle was listed
under the ESA in the lower 48 States (and where it is still listed,
i.e., the Sonoran Desert area of central Arizona), two mechanisms were
available to authorize take that was associated with, but not the
purpose of, a human activity. Eagle take that was prohibited under the
ESA is, in many instances, also prohibited under the Eagle Act. Now
that the bald eagle is delisted (except for the Sonoran Desert
population), a mechanism is needed to authorize take of bald eagles
pursuant to the Eagle Act. The mechanism should also be available to
authorize take of golden eagles, which were never listed as threatened
or endangered under the ESA, as long as it is crafted with sufficient
safeguards to ensure the preservation of both species.
The Eagle Act provides that the Secretary of the Interior may
authorize certain otherwise prohibited activities through promulgation
of regulations. The Secretary is authorized to prescribe regulations
permitting the ``taking, possession, and transportation of [bald or
golden eagles] . . . for the scientific or exhibition purposes of
public museums, scientific societies, and zoological parks, or for the
religious purposes of Indian tribes, or . . . for the protection of
wildlife or of agricultural or other interests in any particular
locality,'' provided such permits are ``compatible with the
preservation of the bald eagle or the golden eagle'' (16 U.S.C. 668a).
In accordance with this authority, the Secretary has previously
promulgated Eagle Act permit regulations for scientific and exhibition
purposes (50 CFR 22.21), for Indian religious purposes (50 CFR 22.22),
to take depredating eagles (50 CFR 22.23), to possess golden eagles for
falconry (50 CFR 22.24), and for the take of golden eagle nests that
interfere with resource development or recovery operations (50 CFR
22.25). This rulemaking establishes permit regulations to authorize
eagle take ``for the protection of . . . other interests in any
particular locality.'' This statutory language accommodates a
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broad spectrum of public and private interests (such as utility
infrastructure development and maintenance, road construction,
operation of airports, commercial or residential construction, resource
recovery, recreational use, etc.) that might ``take'' eagles as defined
under the Eagle Act.
In accordance with the National Environmental Policy Act (42 U.S.C.
4321 et seq.), we have prepared a final environmental assessment (FEA)
of this action. You can obtain a copy of the FEA from http://
www.fws.gov/migratorybirds/baldeagle.htm.
Description of the Rulemaking
Take Permit Regulations Under 50 CFR 22.26.
We promulgate a new permit regulation under the authority of the
Eagle Act for the limited take of bald eagles and golden eagles ``for
the protection of . . . other interests in any particular locality''
where the take is compatible with the preservation of the bald eagle
and the golden eagle, is associated with and not the purpose of an
otherwise lawful activity, and cannot practicably be avoided.
``Practicable'' in this context means ``capable of being done after
taking into consideration, relative to the magnitude of the impacts to
eagles (1) the cost of remedy compared to proponent resources; (2)
existing technology; and (3) logistics in light of overall project
purposes.''
We anticipate that permits issued under this regulation will
usually authorize take that occurs in the form of disturbance; however,
in some limited cases, a permit may authorize lethal take that results
from but is not the purpose of an otherwise lawful activity.
Programmatic take (take that is recurring and not in a specific,
identifiable timeframe and/or location) will be authorized only where
it is unavoidable despite implementation of comprehensive measures
developed in cooperation with the Service to reduce the take below
current levels (see discussion below, under ``Programmatic permits'').
This type of authorization can be extended to industries, such as
electric utilities or transportation industries, that currently take
eagles in the course of otherwise lawful activities but who can work
with the Service to develop and implement additional, exceptionally
comprehensive measures to reduce take to the level where it is
essentially unavoidable. A programmatic take permit could also be
issued to State and Federal agencies that take eagles in the course of
their activities (e.g., construction and maintenance of roads and other
critical infrastructure) if they adopt such advanced conservation
measures.
Purposeful take will not be authorized under this permit. In rare
cases where purposeful take may be necessary to avoid incidental take
(such as relocating birds or a nest from a critical project area), it
may be authorized under 50 CFR 22.23 (for purposeful take of eagles to
protect agriculture, wildlife, and other interests), 50 CFR 22.25 (take
of golden eagle nests for resource development and recovery
operations), or new 50 CFR 22.27 (take of nests for health and safety).
The latter regulation is finalized as part of this rulemaking. Where
appropriate, the Service will issue a single permit that combines
authorizations provided under the various regulations. For example, an
airport that meets the obligations of its Wildlife Hazard Management
Plan and adopts measures developed in cooperation with the Service to
minimize the potential for take of eagles, could be issued a
programmatic permit under these regulations (Sec. 22.26) that would be
valid for up to 5 years to authorize eagle take that occurs as the
result of unavoidable collisions between eagles and planes. One of the
stipulations of the permit would likely be the requirement to haze
eagles in the vicinity of airports, which in some cases could
constitute disturbance (for example, to prevent eagles from re-nesting
at a hazardous location). Because this hazing is intentional and the
effects on the eagles purposeful, it does not meet the issuance
criteria for the Sec. 22.26 permit, which requires the taking to be
associated with, but not the purpose of, the activity. Therefore, we
would issue the permit with the combined authority of both Sec. 22.26
and Sec. 22.23. However, the regulations at Sec. 22.23 had previously
limited permit tenure to 90 days because the need for programmatic
authorization was not contemplated at the time that regulation was
developed. In order to have the ability to extend this type of
authorization to ``Advanced Conservation'' programmatic permittees, we
are amending the regulations at Sec. 22.23 to allow permits to also be
valid for up to five years. We are also taking the opportunity to make
additional minor revisions throughout Sec. 22.23 to clarify that we
may issue permits under that section to alleviate safety emergencies,
and not just to protect agriculture, wildlife or other interests from
depredating eagles. Hazing eagles at airports has been the primary
purpose for which we have exercised this option, but there may be other
scenarios where eagles are not depredating on any resource or private
property, but their presence poses a danger to themselves or to people
(e.g. at uncovered landfills where eagles may ingest toxic substances).
Other than these clarifying revisions, including to the section title,
and amending the permit tenure, we are not making any substantive
revisions to the regulations at Sec. 22.23 in this rulemaking.
Population Assessment and Take Thresholds. Permit issuance will be
conditioned on various criteria, the most important of which is that
the permitted take is compatible with the preservation of the bald
eagle and the golden eagle. The statutory requirement that the
authorized activities be compatible with the preservation of bald
eagles and golden eagles ensures the continued protection of the
species while allowing some impacts to individual eagles. For purposes
of these regulations, ``compatible with the preservation of the bald
eagle and golden eagle'' means ``consistent with the goal of stable or
increasing breeding populations.''
In our June 5, 2007, proposed rule, we proposed to use 0.54% as the
threshold rate of decline, which is the rate of decline used by
Partners in Flight (PIF) as one of the factors for designating an avian
species to their Continental Watch List. However, steady declines, even
as small as 0.54% annually, would cumulatively result in an
unacceptably large decrease in eagle populations over time. For this
and other reasons (see Responses to Public Comments), we agree that the
original proposed management scenario was not sufficiently conservative
and will instead adopt as our management goal increasing or stable
breeding populations.
In the DEA and notice re-opening of the comment period on the rule
(73 FR 47574, August 14, 2008), to elucidate the statutory standard of
``preservation of the bald eagle or the golden eagle,'' we proposed the
following terminology: ``maintaining increasing or stable
populations.'' We continue to support the essential meaning of that
standard, but recognized that it could be misapplied to constrain any
authorization of take because any take of a bald or golden eagle by
some degree results in a population decrease, even if short-term and
inconsequential for the long-term preservation of the species. Thus, if
interpreted so narrowly, the word ``maintaining'' would render us
unable to authorize any take. Therefore, we are revising our
interpretation of ``preservation of the eagle'' to read ``consistent
with the goal of stable or increasing breeding populations.'' The
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phrase ``consistent with the goal of'' will allow take that is
compatible with long-term stability or growth of eagle populations.
Adding the word ``breeding'' clarifies the significance of the number
of breeding pairs for maintaining or growing populations, versus
floaters (non-breeding adults). For more discussion on the biological
basis for distinguishing between breeding eagles and floaters, see the
FEA.
To establish management populations for bald eagles, we used natal
populations (eagles within the median natal dispersal range of each
other, estimated at 43 miles) in our evaluation in order to look at
distribution across the landscape. Being able to see where natal
populations appear sparser, rather than concentrated, allows us to
determine natural boundaries between regional eagle populations,
reducing the risk that we would issue take permits in any one regional
management area in a manner that is disproportionate to the population
in the area.
We acknowledge that this approach is somewhat subjective, and that
the regional management populations delineated are not, in most cases,
genetically or even demographically isolated. However, we believe the
approach does serve to identify biologically-based, regional
populations at a scale meaningful for eagle conservation. The Service's
goal in managing bald eagles at this scale is to ensure permitted take
does not negatively affect the species' status in any regional
management population.
Because the management populations delineated by this approach
roughly correspond to the Service's organizational structure made up of
eight Service Regional Offices, we will manage bald eagles based on
populations within the eight Service Regions, with some shared
populations. Permits will be administered by Service Regions in
coordination with each other, especially where a management area lies
in more than one Service Region. We plan to evaluate this management
and administrative approach regularly, at least once every five years.
For golden eagles, available data on distribution are not as
spatially precise as data for bald eagles. We will manage take of
golden eagles according to thresholds set at the Bird Conservation
Region (BCR) level because the only range-wide estimates available for
golden eagles are BCR-scale population estimates. BCRs are ecologically
distinct regions in North America with similar bird communities,
habitats, and resource management issues. Developed by a mapping team
at the first international meeting of the North American Bird
Conservation Initiative (NABCI) in 1998, BCRs are an application of the
framework of nested ecological units delineated by the Commission for
Environmental Cooperation (CEC).
Because Service Regions are not administered according to BCR
boundaries, we will administer permits by Service Regional Permit
offices. Service Regions would coordinate closely when issuing permits
to ensure that the threshold for that BCR is not exceeded.
Unfortunately, there is little reliable recent data for breeding golden
eagles. Many States have not had the resources to conduct monitoring of
golden eagle populations, in some cases for up to 20 or more years.
However, we will base thresholds on existing data and modeling until
better data become available. As discussed further below and in greater
detail in the FEA, the best available data we have for golden eagles
indicate modest declines in the four BCRs that constitute 80 percent of
its range in the lower 48 states. As a result, until we have additional
data to show that populations can withstand additional take, we are
deferring implementation of the new permit types for golden eagles,
except for safety emergencies and programmatic permits. We will
continue to issue historically-authorized take permits under existing
permit types at the level of take carried out under those permits
(average over 2002-2007).
We will use modeling to evaluate the level of take we can permit
that is compatible with this statutory threshold, taking into
consideration the cumulative effects of all permitted take, including
other forms of lethal take permitted under this section and other
causes of mortality and nest loss. Due to the inherent limits of
monitoring to detect precise fluctuations in bald eagle and golden
eagle numbers, coupled with the uncertainty as to whether individual
actions being permitted will in fact result in a ``take,'' we cannot
precisely correlate each individual permit decision with a specific
population impact. However, we will periodically re-calibrate regional
take thresholds, using the best available data, including reporting
data from permittees, data from post-delisting monitoring (for bald
eagles), WEST surveys (for golden eagles), the Breeding Bird Survey,
and fall and winter migration counts to assess the status of eagle
populations and adjust permitting thresholds on an ongoing basis as
appropriate.
In our June 5, 2007, proposed rule, we stated that our preliminary
analysis indicated that demand for permits under these regulations, and
the effects of issuing those permits, including mitigation measures,
would not be significant enough to cause a decline in eagle populations
from current levels. (We recognized that take of bald eagles in the
Southwest would need to be extremely limited, if permitted at all.)
However, further analysis indicates that there are additional
populations where a relatively modest level of demand for take permits
could exceed the level of take that would be compatible with
maintaining current population levels, particularly for golden eagles.
A 2006 survey (Good and others, 2007) showed decreasing golden
eagle populations in two BCRs. A draft report of 2007 surveys in the
same areas (BCRs 9, 10, 16, and 17, hereinafter WEST areas) found
decreasing golden eagle populations in two BCRs, one of which was the
same as the previous report (Good and others, 2008). Kirk and Hyslop
(1998) indicated that golden eagle populations may be declining in some
areas of Canada. Good and others (2004) estimated that there were just
over 27,000 golden eagles in the 4 BCRs in which the species is of
conservation concern. These BCRs encompass much of the western U.S.
population and most of the North American population of this species.
Breeding bird surveys and migration counts are inconclusive but suggest
lowered reproduction rates in the western United States, possibly due
to habitat alteration and loss, with concomitant declines in prey
(Kochert and others, 2002). A preliminary report on the 2008 surveys in
the WEST areas showed population declines in all four BCRs covered in
the survey, an area which is believed to contain approximately 80% of
the golden eagle population in the lower 48 states.
These new permits represent a somewhat different approach to eagle
management and have significant policy implications and uncertainties.
Those uncertainties and stochasticity (natural variability in vital
rates affecting population trends) for both species support a more
conservative approach than we proposed in our DEA, which proposed
capping threshold at [frac12] maximum sustainable yield (MSY). The MSY
is the greatest harvest rate over an indefinite period that does not
produce a decline in the number of breeding adults in the population.
For a number of reasons (outlined in the following discussion) we
intend to initially cap permitted take of bald eagles at 5% estimated
annual productivity. This approach is consistent with the
recommendations made by Millsap and Allen (2006) for
[[Page 46840]]
permitting take of various raptor species for falconry purposes. For
golden eagles west of 100 degrees West longitude, including in Alaska,
we will initially implement this rule only insofar as issuing take
permits based on levels of historically authorized take, safety
emergencies, and take permits designed to reduce ongoing mortalities
and/or disturbance. Future projects seeking programmatic permits would
need to minimize their own take of golden eagles to the point that it
is unavoidable and also reduce take from another source to completely
offset any new take from the new activity. Estimates of golden eagle
population size in Alaska are coarse, based upon even fewer data
sources than in the lower 48 states, and juvenile survival may be
significantly lower, so management would therefore need to be
conservative. In addition, McIntyre et al. (2008) suggested that
conservation strategies for migratory golden eagles require a
continental approach.
For golden eagles east of 100 degrees West longitude, we will not
issue any take permits unless necessary to alleviate an immediate
safety emergency. We do not have enough data on rates of golden eagle
mortality in the eastern U.S. to issue programmatic take permits.
Our modeling showed there would be negative effects to the floater
portion of the bald eagle population (using population trend data from
Florida) at [frac12] MSY and even some minor effects with setting take
at 5% of estimated annual productivity. Floaters, for which monitoring
is rarely conducted, serve to buffer populations from decline in times
when productivity does not offset mortality, and also serve to provide
a buffer for unforeseen effects to populations. Importantly, the models
did not factor in the cumulative impacts that were discussed in the
DEA. Furthermore, the lack of annual monitoring to ensure we are not
having a negative effect on populations, particularly when the
thresholds we are establishing would be in effect for five years,
compels us to adopt the more conservative approach. Some commenters,
including eagle experts in various parts of the U.S. believe the DEA's
population numbers and survival rates for bald eagles may have been too
high for some areas of the country.
Additionally, the caps recommended in Millsap and Allen were in the
context of falconry, where removal of birds from the population has no
associated impacts to habitat, whereas many permits issued under both
these new regulations will have long-term or permanent habitat-related
impacts in addition to the removal of an individual from the
population. Therefore, we believe that caps should be no less
conservative than recommended for falconry take.
The lower take thresholds also reflect the cultural significance of
both species. Cultural significance is not limited to Native American
religious purposes, but encompasses a broad cultural regard for both
species. Although collected by some Native American tribes for
ceremonial purposes, the overall cultural value placed on bald eagles
and golden eagles is generally quite distinct from the value of
harvesting them. This fact warrants a different, significantly more
conservative approach than for managing game bird populations wherein
allowable take approaches MSY.
We intend, through a structured coordination process with States
and tribes, to develop monitoring and research adequate to both resolve
current uncertainties in the data and to provide enhanced ability to
detect the effects of the permit program. If, after implementation for
a time period commensurate with the normal population cycles of the
eagle, data then indicate take thresholds can be increased in certain
regions, we will increase thresholds accordingly to allow more take.
One factor that should allow us to increase take thresholds in some
regions for both species is the implementation of advanced conservation
measures through programmatic permits to reduce ongoing take that is
currently unauthorized. (See our discussion below under ``Programmatic
Permits.'') For more detailed discussion of population modeling and
permitting thresholds, please see our final environmental assessment of
this action, available on our website at http://www.fws.gov/
migratorybirds/baldeagle.htm.
To address the possibility that demand exceeds our scientifically-
based take thresholds, the final regulation contains permit issuance
criteria to ensure that requests by Native Americans to take eagles
from the wild--where the take of live, wild eagles is absolutely
necessary to meet the religious purposes of the tribe, as opposed to
the use of feathers and parts that may be obtained from the National
Eagle Repository--are given first priority over all other take, except
as necessary to alleviate safety emergencies. (Permit regulations
governing take and possession of eagles by Native Americans are set
forth in 50 CFR 22.22) The American Indian Religious Freedom Act (42
U.S.C. 1996), sets forth Federal policy to protect and preserve the
inherent right of American Indians to express and exercise their
traditional religions, including but not limited to, access to sites,
use and possession of sacred objects, and the freedom to worship
through ceremonials and traditional rites.
If emergency and Native American religious needs can be met, the
issuance criteria further provide that programmatic permit renewals are
given third priority. Projects to promote and maintain public health
and safety have fourth priority. For golden eagle nest take permits,
resource development and recovery operations have fifth priority.
Assuming those interests can be met, bald eagle take for other
interests may be permitted as long as total take authorizations do not
surpass 5% estimated annual productivity for the regional bald eagle
population. Initially, until we have data to show that golden eagles
can withstand additional take, we will issue permits at historically-
authorized take levels under existing permits, for emergency take, and
for programmatic take (west of 100 degrees West longitude). If, in the
future, data and modeling suggest golden eagle populations can support
additional take, we would, in accordance with the prioritization
criteria, begin to authorize golden eagle take at up to 1% of annual
productivity, unless information available at that time demonstrates
that higher levels of take can be supported (following Millsap and
Allen 2006).
The Service's Regional Directors each will be responsible for
developing a structured allocation process consistent with the rule's
prioritization criteria to be implemented in each Service Region if
there is evidence that demand for take will exceed take thresholds for
either species of eagle.
Because we need, at least initially, to limit take permits for
golden eagles to historically-authorized take levels, we will use the
prioritization issuance criteria from this rule to guide permit
decisions with regard to allocating all golden eagle take permits. For
example, in Service Region 2, the Service has issued permits to take 28
golden eagles per year on average from 2002 - 2007 under the various
permit types that allow take (e.g., scientific collecting, depredation,
Native American religious purposes, etc.). On average, 23 of the golden
eagles were taken for Native American religious purposes. If next year,
the demand from qualified Native Americans increases to 28, we will
issue all the available take permits (28) to Native Americans--unless
there is a need to take eagles to alleviate a safety emergency (to
protect either eagles or
[[Page 46841]]
people from physical harm or death), in accordance with the
prioritization order.
A wide variety of activities, including various types of
development, resource extraction, and recreational activities near
sensitive areas such as nesting, feeding, and roosting sites, can
disrupt or interfere with the behavioral patterns of bald eagles. We
developed National Bald Eagle Management Guidelines (NBEMG or
Guidelines) as a tool for landowners, project proponents, and the
general public engaged in activities in the vicinity of bald eagles.
The NBEMG are available at http://www.fws.gov/
migratorybirds.baldeagle.htm. The NBEMG address potential negative
effects of human activities on bald eagles, based on observed bald
eagle behavior, and provide guidance on what types of activities are
likely to cause bald eagle disturbance at varying distances to nests,
communal roosts, and foraging areas, and how to avoid such disturbance.
We intend to use the Draft U.S. Fish and Wildlife Service Raptor
Conservation Measures (soon to be released for public notice and
comment) as interim guidance for golden eagle disturbance, until
species-specific guidance can be developed. When referring to both the
NBEMG and the U.S. Fish and Wildlife Raptor Conservation Measures in
this rulemaking document, we refer to both documents together as
``guidelines'' with a lower case ``g.''
By adhering to the guidelines, landowners and project proponents
should be able to avoid eagle disturbance most of the time. If avoiding
disturbance is not practicable, the project proponent may apply for a
take permit. A permit is not required to conduct any particular
activity, but is necessary to avoid potential liability for take caused
by the activity.
Disturbance may also result from human activity that occurs after
the initial activities (e.g., residential occupancy or the use of
commercial buildings, roads, piers, and boat-launching ramps). In
general, we do not intend to issue permits for routine activities such
as hiking, driving, normal residential activities, and ongoing use of
existing facilities, where take could occur but is unlikely. New uses
or uses of significantly greater scope or intensity may raise the
likelihood that eagles will be disturbed, and as such could require
authorization for take under these regulations.
To assess whether the Service's predictions regarding the
likelihood of disturbance are generally sound, and thereby ensure that
permit requirements are not unnecessarily burdensome to the public and
are adequately protecting eagles, we will require permittees to provide
basic post-activity monitoring (described below) by determining whether
the nest site, communal roost, or important foraging area continues to
be used by eagles for up to three years following completion of the
activity for which the permit was issued, depending on the form and
magnitude of the anticipated take and the objectives of the associated
conservation measures. Where an activity is covered by a management
plan that establishes monitoring protocols (e.g., an airport Wildlife
Hazard Management Plan), the permit may specify that monitoring shall
be conducted according to the pre-existing management plan.
We will use reporting data, as well as supplemental data we collect
from some permittees' project areas, to ascertain how the activity
actually affected the eagles in the area. With this information, we may
be able to adjust take thresholds if take does not occur. The report
data also will help us to assess how likely it is that future
activities will result in loss of one or more eagles, a decrease in
productivity of bald or golden eagles, and/or the permanent abandonment
or loss of a nest site, communal roost site, or important foraging
area. The outcome of disturbance permits, recorded in this way, may
allow us to recalibrate the number of annual permits available in a
Service Region, and to refine recommendations in future versions of the
guidelines regarding buffer distances, timing of activities, and other
practices that minimize take of eagles.
Although the information we will ask permittees to provide is
relatively basic--whether eagles are observed at the nest, roost site
or foraging area--we realize that reporting will not always be
accurate. In addition to errors, some permittees may (unjustifiably) be
concerned about law enforcement and may under-report take without fully
understanding that the take has been authorized by their permits and
thus is not a violation of the law. Overall, however, we expect most
permittees will make a good-faith effort to honestly report eagle use
of the area, resulting in a substantial body of useful information we
do not otherwise have the resources to collect.
Along with annual report data, we will periodically assess overall
population trends of both species of eagles, taking into consideration
the cumulative effects of other activities that take eagles and eagle
mortalities due to other factors. Based on the modeling we will use to
set take thresholds, we do not expect population declines as the result
of the authorizations granted through these regulations. However, it is
also possible that external factors could arise that negatively affect
eagle populations. Whatever the cause, in order to ensure that take is
compatible with the preservation of the bald or golden eagle, we will
not issue permits for take within a regional eagle population without
sufficient data indicating the take will not result in a population
decline.
Programmatic permits. The June 2007 proposed rule distinguished
between lethal and non-lethal take (e.g., disturbance), and proposed
that lethal take would be authorized only if it was unavoidable even
when Best Management Practices (BMPs) were followed. We revised this
concept to remove the distinction between lethal and non-lethal take,
and replace it with a distinction between individual or ``one-time''
\1\ take versus programmatic take. A programmatic permit will be
available to industries or agencies undertaking activities that may
disturb or otherwise take eagles on an on-going operational basis. We
are defining ``programmatic take'' as ``take that (1) is recurring, but
not caused solely by indirect effects, and (2) occurs over the long
term and/or in a location or locations that cannot be specifically
identified.'' The second criterion is the one that distinguishes
programmatic take from any other take that has indirect effects that
continue to cause take after the initial action. It is the key factor
that makes programmatic take programmatic.
---------------------------------------------------------------------------
\1\ By describing the standard (non-programmatic) permit as
authorizing ``individual'' or ``one-time'' take, we do not mean to
infer that only one eagle can be taken under a standard permit, or
that if more than one eagle is taken, the take must occur
simultaneously. We use the term, ``one-time'' for lack of a better
word to refer to take is quantifiable and of a specified amount.
---------------------------------------------------------------------------
We define ``programmatic permit'' as ``a permit that authorizes
programmatic take. A programmatic permit can cover other take in
addition to programmatic take.'' We can issue programmatic permits for
disturbance as well as take resulting in mortalities, based on
implementation of ``advanced conservation practices'' developed in
coordination with the Service. ``Advanced conservation practices''
(ACPs) refers to scientifically-supportable measures that are approved
by the Service and represent the best-available techniques to reduce
eagle disturbance and/or ongoing mortalities to a level where remaining
take is unavoidable. The Federal Highway Administration is an example
of an agency for which this streamlined
[[Page 46842]]
approach may benefit the agency and eagles. A programmatic take permit
may be appropriate for industries such as the energy and transportation
providers, among others, if they elect to work with the Service to
develop ACPs. The ACPs and plan specifications will then become permit
conditions, along with monitoring and reporting requirements more
comprehensive than those for individual take permits. Programmatic
permits are designed to provide a net benefit to eagles by reducing
ongoing unauthorized take. Accordingly, programmatic permit conditions
will be designed to provide ongoing long-term benefits to eagles.
Recipients of programmatic permits must perform more rigorous
monitoring than is required for standard, individual take permits.
Because the requirements for obtaining programmatic take
authorization are designed to reduce take, the take authorized by
programmatic permits for ongoing activities will not be subtracted from
regional thresholds, nor would they be subject to the prioritization
criteria. The reductions in take that result from implementation of new
measures to reduce take from ongoing activities under programmatic
permits may allow the Service to increase take thresholds and make
additional permits available for other activities likely to result in
take.
Applicants for programmatic permits for new activities will be
subject to the same rigorous standards and may also be required to
apply conservation measures at other sites (possibly owned or operated
by a third party) where eagles are taken by existing operations. The
purpose of the off-site measures would be to reduce take to a level
that offsets some or all of the new take from the applicant's activity.
The degree to which the applicant would be required to offset the take
will depend on the status of eagle populations in the region; if
populations of the particular eagle species are robust, the Service may
not require any off-site reductions in take. However, if regional
populations cannot absorb significant new take, the Service may require
the project proponent to completely offset the effects of the new
activity with reductions in take elsewhere.
To encourage potential applicants to seek programmatic permits
(versus standard permits), the regulations contain issuance criteria
that give priority to those seeking renewal of programmatic permits.
These criteria will provide programmatic permittees with some assurance
(though never an absolute guarantee) that previously authorized levels
of take from on-going operations will continue to be authorized in the
future. Programmatic permit renewals will have third priority, after
(1) safety emergencies, and (2) take necessary to meet Native American
religious needs, but before (4) non-emergency public health and safety.
A programmatic permit is optional. Entities that engage in
programmatic take and who wish to obtain authorization for the take can
choose whether to apply for the programmatic take permit or apply for
standard permits for individual takes. One advantage of opting for the
programmatic permit is it would remove liability comprehensively. It
also lessens concern about whether additional take can be authorized
under take thresholds in the future. The disadvantage is that the
process of working with the Service to develop the permit conditions is
likely to be time-consuming and more expensive than seeking a standard
permit. Also, implementation of the ACPs will in most cases require
substantial resources. In the long term, however, depending on the
scale of an applicant's operations, programmatic permits should be the
most economical approach for authorizing long-term or wide-ranging take
of eagles.
A programmatic permit is not available where the only long-term
take is due to indirect effects from an initial action. Programmatic
take is the direct result of ongoing operations. The following are
examples of programmatic take:
1. A railroad that routinely strikes eagles feeding on carcasses on
the tracks.
2. Utilities that kill eagles through collisions and electrocutions
from contact with power lines.
3. Ongoing disturbance at a port due to vessel traffic and/or other
port operations.
4. Construction and maintenance of highways throughout a State or
other jurisdiction that routinely disturbs eagles.
5. Airports that periodically (but immediately upon discovery) need
to remove eagle nests to protect human and eagle safety.
Below are examples of what is not programmatic take:
1. Construction of a boat ramp, with or without long-term indirect
effects that take eagles (boat traffic).
2. Construction of a port when eagles are disturbed by pile driving
and other construction activities.
3. Construction of a single highway, or multiple highways, where
eagle take can be projected to occur at particular locations and during
specific project phases.
Although we define ``programmatic take'' as take that results from
an activity and not from the activity's indirect effects, many
activities that result in programmatic take will also have adverse
indirect effects on eagles. Therefore, most programmatic permits will
authorize other take in addition to the programmatic take, to cover the
indirect effects. The Service will consider indirect effects of
activities under both types of permits, first when deciding whether to
issue the permit, and again when establishing conservation measures.
Because programmatic permits are designed to reduce take to the level
where it is unavoidable, if there are ACPs that will reduce take caused
by indirect effects, those ACPS will be required conditions of the
programmatic permit.
As further illustration of the differences between programmatic and
standard permits, and the need to consider indirect effects under both,
the following are two distinct activities that each directly take
eagles and also have indirect effects that continue to take eagles;
however, only one programmatically takes eagles and can be covered with
a programmatic take permit.
First, a large housing development provides buffers around each
nest on the property as recommended by the Service to avoid disturbing
eagles. However, due to various constraints, the developer is unable to
avoid impacts to the eagles' prey base, resulting in take of eagles in
the form of lost productivity or abandonment of nesting territories. In
this case, the construction of the development is not ongoing. What
continues are the indirect effects of depriving eagles of their prey
base. Therefore, the take caused by the housing development is not
programmatic take, and to be authorized, would have to be covered under
a standard permit.
Our second example is a company interested in siting a wind-power
facility. We are currently unaware of any measures that would eliminate
eagle mortalities when turbines are sited in golden eagle habitat
(including migration corridors). If ACPs can be developed to
significantly reduce the take, the operator may qualify for a
programmatic take permit, since the ongoing mortalities are the direct
result of the operation of the turbines. In addition to measures
designed to reduce take directly, ACPs should also include measures to
reduce indirect effects that contribute to the level of take, such as
ensuring the project site does not
[[Page 46843]]
provide enhanced habitat for small mammals that eagles feed on, which
would attract eagles to the area and increase the likelihood of
collision with turbines.
Permit application process. Permits are available to Federal,
State, municipal, or tribal governments; corporations and businesses;
associations; and private individuals, all of which are subject to the
prohibitions of the Eagle Act. Persons and organizations that obtain
licenses, permits, grants, or other such services from government
agencies are responsible for their own compliance with the Eagle Act
and should individually seek permits for their actions that may take
eagles. Government agencies must obtain permits for take that would
result from agency actions that are implemented by the agency itself
(including staff and contractors responsible for carrying out those
actions on behalf of the agency).
The final regulations do not specify what information an applicant
must submit to apply for an eagle take permit or to file an annual
report, other than that he or she must submit a complete application
form, including any required attachments to apply for a permit, and for
annual reporting, the permittee must submit all the information
required on the report form. By avoiding codification of application
and reporting requirements, we can revise application and reporting
requirements without undergoing the time-consuming rulemaking process.
However, the public will have the opportunity to provide input on the
content of these forms. All forms must be approved by the President's
Office of Management and Budget (OMB) every three years, and as part of
that process, all new forms and all changes to forms are subject to
public review via a series of notices in the Federal Register. The
forms we will use when this rule takes effect were subject to the OMB
and public review process while this rule was being developed.
The new Service permit application Form 3-200-71 requires the
following information from the applicant as part of the application
process (in addition to the requirements of Sec. 13.12(a) of this
subchapter, which apply to all types of permits issued by the Service):
1. A detailed description of the activity that will cause the
disturbance or other take of eagles;
2. The species and number of eagles that will be taken and the
likely form of that take;
3. Maps and digital photographs that depict the locations of the
proposed activity, including the area where eagles are likely to be
taken;
4. For activities that are likely to disturb eagles (versus other
take),
a. Maps and digital photographs of the eagle nests, foraging areas,
and concentration sites where eagles are likely to be disturbed by the
proposed activity (including the geographic coordinates of the activity
area and important eagle-use area(s) and the distance(s) between those
areas);
b. Whether or not the important eagle-use area(s) is visible from
the activity area, or if screening vegetation or topography blocks the
view; and
c. The nature and extent of existing activities in the vicinity
that are similar to the proposed activity, and the distance between
those activities and the important eagle-use area(s);
5. The date the activity will start and is projected to end;
6. An explanation of what interests(s) in a particular locality
will be protected by the take, including any anticipated benefits to
the applicant or to the public;
7. An explanation of why avoiding the take is not practicable,
including at a minimum, a description of why take cannot be avoided
after taking into consideration, relative to the magnitude of the
impacts to eagles, (1) the cost of the remedy comparative with
proponent resources; (2) existing technology; and (3) logistics in
light of overall project purposes; or
8. For programmatic take, why take is unavoidable; and
9. A description of measures proposed to offset the detrimental
impact of the proposed activity on the regional eagle population.
The Service's Ecological Services Field Offices may provide
technical assistance prior to development of permit applications. In
many cases, the Service may be able to recommend measures to reduce the
likelihood of take, negating the need for a permit. The technical
assistance that we provide from the field will reduce the number of
applications to our permit offices for activities that (1) are unlikely
to take eagles, or (2) can practicably be modified to avoid the take.
The Service may elect to conduct an on-site assessment to determine
whether the proposed activity is likely to take eagles and whether
reasonable modifications to the project will alleviate the probability
of take. In addition, State and tribal natural resources agencies may
also be able to provide information pertaining to the number and
location of eagles, eagle nests and other important eagle-use areas
within the area potentially affected by the activity.
Application Evaluation Process. An initial consideration is whether
take is likely to occur. Ideally, most potential applicants whose
activities will not likely result in take will be dissuaded from
applying for a permit after voluntary technical consultation with a
Service field biologist. If, after an application is submitted, the
Service determines that take is not likely to occur, we may issue the
permit (if permit issuance criteria are met); however, if we do not
consider take likely to occur, we will not subtract the authorized take
from Regional take thresholds--unless follow-up monitoring reveals that
it did actually occur.
Our primary consideration when issuing permits under this
regulation is whether the take would be compatible with the
preservation of the bald eagle and the golden eagle, including
consideration of the cumulative effects of other permitted take and
additional factors affecting eagle populations. When evaluating the
take that may result from an activity for which a permit is sought
(e.g., residential development), we will consider the effects of the
preliminary activity (construction) as well as the effects of the
foreseeable ongoing future uses (activities associated with human
habitation). The impacts and threshold distances that we will consider
will not be limited to the footprint of the initial activity if it is
reasonably foreseeable that the activity will lead to adverse indirect
effects on eagles. For example, when evaluating the effects of
expanding a campground, in addition to considering the distance of the
expansion from important eagle-use areas, we would consider the effects
of increased pedestrian and motor traffic to and from the expanded
campground. In many cases, the potential for take could be greater as a
result of the activities that follow the initial project. For example,
the installation of a boat ramp 500 feet from an important eagle
foraging area may not disturb eagles during the construction phase, but
the ensuing high levels of boat traffic through the area during peak
feeding times may cause disturbance. Trail construction 400 feet from a
nest is generally unlikely to take eagles, but if the trail will be
open to off-road vehicle use during the nesting season, we would need
to consider the impacts of the vehicular activity as part of the
impacts of the trail construction.
If demand will exceed regional take thresholds (see above
discussion under Population Assessment and Take Thresholds), the permit
office will need to evaluate how the proposed activity
[[Page 46844]]
should be prioritized in accordance with the Regional structured
allocation process established to ensure the Service adheres to the
prioritization issuance criteria set forth in Sec. 22.26(e) and Sec.
22.27(d)(5) of the regulations.
We must then consider whether the take is associated with the
permanent abandonment or loss of a nest site, territory, or other
important eagle-use area. In reality, this evaluation would be tied to
our primary consideration of whether the take would be compatible with
the preservation of the bald eagle or the golden eagle because take
associated with the loss of an important eagle-use area will generally
have larger population impacts than a single, one-time disturbance.
Depending on the magnitude of the impacts, the potential take could
exceed the thresholds we establish as necessary to safeguard eagle
populations. If so, we must deny the permit unless the applicant
commits to compensatory mitigation measures that would offset the take
to the level where it is compatible with the preservation of eagles.
Additional evaluation criteria include whether: (1) the take is
necessary to protect a legitimate interest in a particular locality;
(2) the take is associated with, but is not the purpose of the
activity; (3) the take cannot practicably be avoided (or for
programmatic authorizations, the take is unavoidable); and (4) the
applicant has minimized impacts to eagles to the extent practicable,
and for programmatic authorizations, the taking will occur despite
application of Advanced Conservation Practices developed in
coordination with the Service.
Before issuing a permit, we will consult with federally-recognized
tribes if issuance of the permit might affect traditional tribal
activities, practices, or beliefs. The Service's obligation to consult
on a government-to-government basis with Native American tribes is set
forth in Executive Order 13175, Consultation with Indian Tribal
Governments (Nov. 6, 2000) and the Service's own ``Native American
Policy'' (http://www.fws.gov/nativeamerican/Graphics/Native_Amer_
Policy.pdf). The areas where eagles would be taken have the potential
of being regarded as areas of traditional religious and cultural
importance to Indian tribes, commonly referred to as Traditional
Cultural Properties (TCP). Eagles are highly significant species for
Native American culture and religion, and as such they might be viewed
as contributing elements to a TCP. Take of one or more eagles from a
TCP area could potentially be considered an adverse effect to the TCP.
Eagles also have cultural significance to the wider American public,
with the result that the Service will need to consider the concerns of
any party with cultural interest in eagles, eagle nests, and eagle
habitat under Section 106 of the National Historic Preservation Act
(NHPA) (16 U.S.C. 470). (For more discussion on the NHPA, see our
discussion in the Required Determinations section below under National
Historic Preservation Act.)
Permit Conditions. Under the Service Mitigation Policy (46 Fed.
Reg. 7644-7663, January 23, 1981) and the President's Council on
Environmental Quality regulations (40 CFR Part 1508.20 (a-e)),
mitigation includes: avoidance, minimization, rectification, reduction
over time, and compensation for negative impacts, in this case to bald
eagles and golden eagles. Under these regulations, all permittees will
be required to avoid and minimize the potential for take to the degree
practicable, and for programmatic permits, to the point where take is
unavoidable.
Depending on the scale of the take, and the particular
circumstances, the Service may require rectification (taking corrective
action) and/or reduction over time from some permittees. However
additional compensatory mitigation will be required only (1) for
programmatic take and other multiple take authorizations; (2) for
disturbance associated with the permanent loss of a breeding territory
or important traditional communal roost site; or (3) as necessary to
offset impacts to the local area population. Because our take permit
thresholds are population-based, we have already determined before
issuing each individual take permit that the population can withstand
that level of take. Therefore, compensatory mitigation for one-time,
individual take permits will not typically be necessary for the
preservation of eagles. This approach is based on our analysis of
regional population thresholds, and does not preclude a State or tribe
from requiring additional mitigation for impacts authorized by a State
or tribal permit or authorization within its jurisdiction. However, we
intend to work with States and tribes to ensure that the total
mitigation required of applicants by the Service and the State and/or
tribe does not exceed what is appropriate to offset impacts to eagles
from the proposed activity.
These regulations contain general conditions that will apply to all
permits we issue under this section. If the permit expires or is
suspended or revoked before the required measures are completed, the
permittee will remain obligated to carry out those measures necessary
to mitigate for take that has occurred up to that point. Permittees
must allow Service personnel, or other qualified persons designated by
the Service, access to the areas where take is anticipated, within
reasonable hours and with reasonable notice from the Service, for
purposes of monitoring eagles at the site(s). Although we do not
anticipate the necessity for ongoing monitoring by the Service at the
majority of permit locations, we will use the data collected from
limited site visits to reevaluate, as appropriate, the recommendations
we provide in the guidelines as well as through case-by-case technical
assistance to ensure that eagles are adequately protected without
unnecessarily hindering human activity.
If a permit is revoked or expires, the permittee must submit a
report of activities conducted under the permit to the Service's
Regional Migratory Bird Permit Office within 60 days of the revocation
or expiration. The permit provides take authorization only for the
activities set forth in the permit conditions. If the permittee
subsequently contemplates different or additional activities that may
take eagles, he or she must contact the Service to determine if a
permit amendment is required to retain the level of take authority
desired. Additionally, the validity of all permits issued under these
regulations is conditioned on the permittee's compliance with all
applicable Federal, tribal, State, and local laws and regulations
governing the activity. Thus, if conduct of the activity violates
State, tribal, or other laws, the Federal authorization granted by this
permit is invalid.
We are defining one term in Sec. 22.26 that will apply only to the
regulations in that section and not to eagle permits, generally.
``Eagle'' under Sec. 22.26 means ``a live bald eagle (Haliaeetus
leucocephalus), live golden eagle (Aquila chrysaetos), a bald eagle
egg, or a golden eagle egg.'' Eagle take under Sec. 22.26 is limited
to live birds and eggs, and excludes non-living specimens, feathers,
parts, and nests.
We are in the process of developing implementation guidance to
address procedural aspects of the permitting process. The guidance will
cover time frames for permit issuance; identification of project
impacts; appropriate mitigation measures; monitoring; coordination with
States, tribes, and other Federal agencies; compliance with
environmental reviews; and other specifics of the
[[Page 46845]]
permit process, in order to ensure consistency in implementation
throughout the Service. We will work with interested States and tribes
in developing the implementation guidance, and the general public will
also have the opportunity to provide input once we make a draft
available through a notice in the Federal Register.
Eagle Nest Take Under 50 CFR 22.27
Some eagles nest on or near electrical transmission towers,
communication towers, airport runways, or other locations where they
endanger themselves or create a hazard to humans. Regulations under
this section, Sec. 22.27, authorize removal and/or relocation of
active and inactive eagle nests in what we expect to be the rare cases
where genuine safety concerns necessitate the take. Examples include:
(1) a nest tree that appears likely to topple onto a residence; (2) at
airports to avoid collisions between eagles and aircraft; and (3) to
relocate a nest built within a reservoir that will be flooded.
Compensatory mitigation will sometimes but not always be required when
nests must be removed for safety emergency purposes.
This permit will also be available to take inactive nests only, in
three additional types of situations. First, we may issue a permit to
remove an inactive eagle nest where, although the presence of the nest
does not create an immediate safety emergency, the take is necessary to
ensure public health and safety. For purposes of this regulation,
``necessary to ensure public health and safety'' means ``required to
maintain society's well-being in matters of health and safety.'' For
example, if the take would be compatible with the preservation of the
eagle, and there is no practicable alternative to nest removal, a
permit could be issued under this section to remove an inactive eagle
nest located in the only feasible site for a hospital that is needed in
a particular locality.
Second, a permit may be issued to take an inactive nest that is
built on a human-engineered structure and creates a functional hazard
that renders the structure inoperable for its intended use. For
example, recently in Alaska, a pair of bald eagles nested on a crane
that was temporarily not being used by the crane operator. Under these
regulations, after waiting out the eagles' breeding cycle, the crane
operator could be issued a permit to remove the inactive nest and
reclaim the use of his crane.
Finally, the nest could be removed for an activity that will
provide a net benefit to eagles, or for any purpose if the permittee
conducts or secures mitigation measures that more than offset the
impacts of removing the nest, creating a net benefit to eagles. For
example, we may issue a permit to take a nest where necessary to carry
out a habitat restoration project that will enhance habitat for eagles.
Also, a homeowner could potentially obtain a permit to remove one of
multiple nests in a territory, one which has not been used for several
years, if compensatory mitigation measures will produce a net benefit
to eagles (e.g., the landowner donates a permanent conservation
easement to protect the riparian area where the nesting pair and
wintering eagles traditionally forage). The scale of mitigation will
depend on the degree of biological impact. To remove a nest from what
is apparently the only viable nest site in a territory would have a
greater biological impact than in the example just provided, and more
mitigation might be necessary in order to realize a net benefit to
eagles.
Where the nest would be taken for purposes other than to alleviate
an immediate threat to safety, two additional criteria must be met
before we may issue the permit. First, we may not issue the permit
unless alternative suitable nesting and foraging habitat is available.
Second, compensatory mitigation is required in every case.
Except for applications associated with safety emergencies, prior
to authorizing nest removal, we will review the availability of
potential alternative suitable habitat (nest substrate, foraging areas,
etc.) and the distance to those areas, in order to reasonably assess
the likelihood of total loss of the territory. When known, we will
consider such factors as the number of nests in a particular breeding
pair's nesting territory and the last known date when the nest under
consideration for take was used, in order to try to assess the relative
value of the nest to the breeding pair. We will also consider the
density of surrounding territories and the nests within those
territories to evaluate the ability of the area to support a displaced
pair and assess whether the loss of a particular nest may have negative
local population impacts. For overall permit management, we will
consider local-area population effects within the species-specific
natal dispersal distances (43 miles for bald eagles, 140 miles for
golden eagles). However, we believe it would be too burdensome to ask
the proponent to provide data on that large a scale. We have found, in
implementing the resource-recovery permit for take of inactive golden
eagle nests (50 CFR 22.25), that data within a 10-mile radius of the
nest provides us with adequate information to evaluate many of the
factors noted above.
Where practicable, nests should be relocated, or a substitute nest
provided, in a suitable location within the same territory from which
they were removed to provide a viable nesting site for breeding
purposes of eagles within that territory, unless such relocation would
create a similar threat to safety. Permits may also be issued to remove
nests when it is determined by the Service that the nests cannot be
relocated.
We may issue programmatic nest take permits under this section if
the permittee commits to comprehensive measures (ACPs) to reduce the
need for take. For example, programmatic authorization could be an
appropriate means of authorizing take at airports that, despite
scientifically-based measures developed in coordination with the
Service to reduce take, cannot completely avoid some take in the form
of disturbance and emergency nest removal (when nests are discovered
despite diligent efforts to prevent eagles from occupying the area).
Authorizing programmatic nest take, where such comprehensive measures
are being taken by airports to reduce take, will help to minimize
``last minute'' nest removal emergencies, thus providing better
protection from liability for the airports and enhanced protection of
eagles.
We envision that there will be a need for permits that combine the
two types of authorizations we are creating through this regulation
(Sec. 22.26 and Sec. 22.27), and perhaps additional authorizations as
well. In such cases, we will usually issue one permit with dual (or
multiple) authorizations. For example, to ensure safety at airfields,
we would evaluate the airfield's wildlife hazard management plan to
determine if it uses a progressive approach that starts with measures
to reduce the presence of features attractive to eagles and ends with
nest removal as a final option. If the management-plan components are
adequate for protection of eagles, they would then become part of the
permit conditions. The programmatic permit will not require re-
application each year, but may be valid for up to 5 years, at which
time the applicant could submit a request for renewal. There are annual
reporting requirements and an option for the Service to re-evaluate the
permit conditions if more take is occurring than anticipated. A permit
such as described would be issued under the multiple authorities of
existing Sec. 22.23 (as revised by this rulemaking to extend permit
tenure), new Sec. 22.26, and new Sec. 22.27.
[[Page 46846]]
As with other eagle take permits, nest take permits issued under
Sec. 22.27 will be subject to the take thresholds discussed earlier
and more fully in the final environmental assessment of this action.
Similar to our approach to Sec. 22.26 and some other recent
Service regulations, we have not codified the application requirements
within the regulation so we can more easily modify them based on new
information and public input gathered through the triennial OMB
information collection process (see above discussion under Sec. 22.26,
Permit Application Process). The current application form we will use
for this regulation requires applicants to submit the following
information:
(1) The number of nests proposed to be taken, whether the nest(s)
is a bald eagle or golden eagle nest, and whether the nest(s) is active
or inactive; and if known, whether it has been active in the 5
preceding breeding seasons.
(2) Why the removal of the nest(s) is necessary, including the
interest to be served in a particular locality;
(3) A description of the property, including maps and digital
photographs that show the location of the nest in relation to
buildings, infrastructure, and human activities;
(4) The location of the property, including latitude and longitude;
(5) The length of time for which the permit is requested, including
beginning and ending dates;
(6) A statement indicating the intended disposition of the nest(s),
and if active, the nestlings or eggs;
(7) A calculation of the bald eagle or golden eagle area nesting
population, including an appropriately-scaled map or plat showing the
location of each eagle nest used to calculate the area nesting
population unless the Service has sufficient data to independently
calculate the area nesting population. (Not applicable for immediate
safety emergencies.)
(8) A description of the avoidance, minimization, and mitigation
measures the applicant proposes to reduce take and offset the
detrimental impact of the permitted activity. (Not applicable for
immediate safety emergencies.)
Even though the application form does not require applicants to
describe proposed mitigation measures in cases of safety emergencies,
we may require compensatory mitigation as a permit condition if
appropriate to offset the detrimental impacts to eagles.
New and Modified Definitions Under 50 CFR 22.3
These regulations revise three definitions and codify 13 new terms
in Sec. 22.3, the section of eagle permit regulations that defines
terms and is applicable to all eagle permit regulations in part 22. We
amend the regulatory definition of ``take,'' to add the term
``destroy,'' to apply to bald eagle nests, to ensure consistency with
the Eagle Act's intention to prohibit unpermitted eagle nest
destruction. We define ``eagle nest'' as a ``readily identifiable
structure built, maintained, or used by bald eagles or golden eagles
for breeding purposes.'' This definition is based on, and replaces, the
existing ``golden eagle nest'' definition, in order to apply with
respect to both species. We are removing the existing definition of
``golden eagle nest'' from the list of definitions.
Similarly, this rule replaces the old definition ``inactive nest''
with a new definition that differs primarily insofar as it includes
bald eagles as well as golden eagles. The new definition reads: ``a
bald eagle or golden eagle nest that is not currently being used by
eagles as determined by the continuing absence of any adult, egg, or
dependent young at the nest for at least 10 consecutive days
immediately prior to, and including, at present. An inactive nest may
become active again and remains protected under the Eagle Act.'' All
nests are protected by the Eagle Act, whether active or inactive, and
the take of any nest requires a permit. The reason for distinguishing
between active nests and inactive nests and for defining the term
``inactive nest'' is because the new nest-take-permit regulation, as
well as existing regulations for take of golden eagle nests for
resource development and recovery operations (50 CFR 22.25), regulate
nests differently depending on whether they are currently active or
inactive. Under existing Sec. 22.25, a permit may be issued only for
inactive nests. Under the regulations being finalized by this
rulemaking, a permit can be issued for an active nest only if the
location of the nest poses an immediate threat to safety. This
definition is intended to be applied only to questions of whether or
not a nest may be taken with reduced risk of associated take of birds.
It is not intended to convey any other biological status, nor will it
be the only criterion for permit evaluation.
We are codifying the term ``important eagle-use area'' in these
permit regulations under Sec. 22.26 to refer to nests, biologically
important foraging areas, and communal roosts where eagles are
potentially likely to be taken as the result of interference with
breeding, feeding, or sheltering behaviors. We define ``important
eagle-use area'' as ``an eagle nest, foraging area, or communal roost
site that eagles rely on for breeding, sheltering, or feeding, and the
landscape features surrounding such nest, foraging area, or roost site
that are essential for the continued viability of the site for
breeding, feeding, or sheltering eagles.'' This term refers to the
particular areas, within a broader area where human activity occurs,
where eagles are more likely to be taken (e.g., disturbed) by the
activity because of the higher probability of interference with
breeding, feeding, or sheltering behaviors at those areas.
To clarify terms used within the definition of ``important eagle-
use area,'' we define ``foraging area'' to mean ``an area where eagles
regularly feed during one or more seasons.'' We define ``communal roost
site'' as ``an area where eagles gather repeatedly in the course of a
season and shelter overnight and sometimes during the day in the event
of inclement weather.'' Not all foraging areas and communal roost sites
are important enough such that interfering with eagles at the site will
cause disturbance (resulting in injury or nest abandonment). Whether
eagles rely on a particular foraging area or communal roost site to
that degree will depend on a variety of circumstances--most obviously,
the availability of alternate, suitable sites for feeding or
sheltering.
``Territory'' is defined as ``a defended area that contains, or
historically contained, one or more nests within the home range of a
mated pair of eagles.'' ``Cumulative effects'' means ``the incremental
environmental impact or effect of the proposed action, together with
impacts of past, present, and reasonably foreseeable future actions.''
We define ``indirect effects'' as ``effects for which a proposed action
is a cause, and which may occur later in time and/or be physically
manifested beyond the initial impacts of the action, but are still
reasonably likely to occur.''
The regulations include the requirement that an applicant have
avoided and minimized impacts to eagles to the maximum extent
practicable. ``Practicable'' is defined as ``capable of being done
after taking into consideration, relative to the magnitude of the
impacts to eagles (1) the cost of remedy comparative with proponent
resources; (2) existing technology; and (3) logistics in light of
overall project purposes.'' For programmatic permits, the comparable
standard is ``maximum degree achievable,'' defined as ``the standard at
which any take that occurs is unavoidable despite implementation of
Advanced Conservation Practices.''
[[Page 46847]]
``Necessary to ensure public health and safety'' is one criterion
for obtaining a nest removal permit, and it is a criterion for
prioritization in the regulations for both new permit types if demand
exceeds take thresholds. We define it as ``required to maintain
society's well-being in matters of health and safety.'' ``Safety
emergency'' means ``a situation that necessitates immediate action to
alleviate a threat of bodily harm to humans or eagles.'' Safety
emergencies take precedence over take that is merely necessary to
ensure public health and safety (as does take necessary for Native
American religious use and renewal of programmatic permits). We may
issue a permit to remove an active eagle nest in a safety emergency,
but not for any other purpose.
We are defining ``programmatic take'' as ``take that (1) is
recurring, but not caused by indirect effects (2) occurs over the long
term and/or in a location or locations that cannot be specifically
identified.'' We define ``programmatic permit'' as ``a permit that
authorizes programmatic take.'' A programmatic permit can cover other
take in addition to programmatic take. We can issue programmatic
permits for disturbance and as well as take resulting in mortalities,
based on implementation of ``advanced conservation practices''
developed in coordination with the Service. ``Advanced Conservation
Practices'' means ``scientifically-supportable measures that are
approved by the Service and represent the best-available techniques to
reduce eagle disturbance and ongoing mortalities to a level where
remaining take is unavoidable.''
Since Sec. 22.26 does not apply to nests or non-living eagle
parts, with regard to that section, we define ``eagle'' to mean only
live eagles or eggs. This definition does not apply within any
regulations other than Sec. 22.26.
Revisions to Permit Regulations at 50 CFR 22.28
On May 20, 2008, the Service published regulations creating a new
permit category at 50 CFR Sec. 22.28 to provide expedited Eagle Act
permits to entities authorized to take bald eagles through ESA section
7 incidental take statements (73 FR 29075, May 20, 2008). That new
permit category applies to past section 7 take statements as well as
any that may have been issued after the rule took effect. (e.g., for
take of Sonoran Desert nesting bald eagles, or if bald eagles or golden
eagles were ESA-listed in any other portion of their respective
ranges). Now that a permit is available to authorize eagle take not
associated with an ESA take authorization, for purposes of
accountability and consistency, the same process and procedures should
be used to authorize take under the Eagle Act regardless of whether it
was also exempted under ESA section 7. Accordingly, as part of the
regulations we are promulgating today, we are amending the regulations
at Sec. 22.28 to restrict their application to section 7 incidental
take statements issued prior to the date today's rule becomes
effective. For any incidental take exempted under ESA section 7 that is
authorized after the date specified in DATES and that also constitutes
take under the Eagle Act, the only permit that is available to provide
Eagle Act take authorization is the Sec. 22.26 permit being finalized
herein. Therefore, except for take authorized through ESA section 10
permits (which confer authority to take under both the ESA and the
Eagle Act under the new provision at 50 CFR Sec. 22.11), any take we
authorize that is associated with, but not the purpose of an activity,
would be provided under the single regulatory authority we are
finalizing today, 50 CFR Sec. 22.26, rather than 50 CFR Sec. 22.28.
Revisions to Information Collection Requirements at 50 CFR 22.4
This section describes the requirement that Federal information
collections, such as permit applications and report forms related to
Federal permits, be reviewed and approved by the OMB. It also provides
the approval number(s) (OMB Control Numbers) for the forms used to
collect information related to eagle permits. We are removing the
language describing the average reporting burden for all the
collections related to eagle permits because that figure varies as new
forms are added or removed and we are no longer required to provide
this estimate.
Revisions to General Permit Conditions at 50 CFR 13
As part of establishing the new permit authorizations under 50 CFR
22.26 and 22.27, we amend 50 CFR 13.12 to add the new permit types to
be issued under 50 CFR 22.26 and 22.27. We also amend 50 CFR 13.11(d),
the nonstandard fee schedule, to establish application-processing fees
(user fees) for the permits. The general statutory authority to charge
fees for processing applications for permits and certificates is found
in 31 U.S.C. 9701, which states that services provided by Federal
agencies are to be ``self-sustaining to the extent possible.'' Federal
user-fee policy, as stated in OMB Circular No. A-25, requires Federal
agencies to recoup the costs of ``special services'' that provide
benefits to identifiable recipients. Permits are special services
authorizing identifiable recipients to engage in activities not
otherwise authorized for the general public.
For the standard Sec. 22.26 take permit and the Sec. 22.27 nest
take permit, we will assess a $500 permit application fee and a $150
permit amendment fee. For programmatic permits under either permit
type, the application fee is $1,000 and the amendment fee is $500.
While higher than many other Service permit application processing
fees, these fees are comparable to those assessed for other migratory
bird permits relative to the level of review necessary to process and
evaluate an application for a permit to take eagles or to remove eagle
nests under the authorities of the Eagle Act. \2\ Furthermore, we
expect these fees to make up less than half the permit-processing costs
to the Service.
---------------------------------------------------------------------------
\2\ The notable exception is the permit-application-processing
fee for take of golden eagle nests for resource recovery and
development operations under 50 CFR 22.25, which is currently set at
$100. We intend to propose a regulation in the near future to raise
the processing fee to a level commensurate with the processing fees
for the new Sec. 22.27 nest take permit.
---------------------------------------------------------------------------
The typical permit-application process will be less burdensome for
the applicant than the permit process under the ESA, since an HCP is
not required. Preparing an HCP can be time-consuming and is usually
delegated to a professional consultant. HCPs often cover large
geographic areas--some larger than a million acres--and set forth terms
and mitigation measures designed to protect species for up to 100
years. In contrast, the information required to apply for an individual
Eagle Act permit does not include an extensive habitat analysis, is
easier to compile, and will require less information, since permits
will be valid for no more than five years.
Service biologists at GS-11 to 13 grade levels on the Office of
Personnel Management General Pay Schedule, with support of GS-7 staff,
would be responsible for pre-application technical assistance;
reviewing and determining the adequacy of the information provided by
an applicant; conducting any internal research necessary to verify
information in the application or evaluate the biological impact of the
proposed activity; assessing the biological impact of the proposed
activity on the bald or golden eagle; evaluating whether the proposed
activity meets the issuance criteria; preparing or reviewing NEPA
documentation; determining consistency with other laws such as the
[[Page 46848]]
section 106 of the NHPA; coordination and consultation with States and
tribes; and preparing either a permit or a denial letter for the
applicant. To evaluate the impact of the proposed activity, Service
biologists may also need to visit the location to examine site-specific
conditions.
Programmatic permits will take considerably longer to craft and
process. We expect most industry-wide or agency-wide standard practices
for programmatic permits would be developed with the respective
entities and Service staff who work on policy development in the
Washington Office, in coordination with Service Regions. We anticipate
that some programmatic permits, particularly early ones will require
the Service to convene and lead meetings of workgroups representing the
entities seeking permits. The workgroups would develop metrics for
establishing/quantifying baseline effects through estimates or a
sampling scheme; identify the best-available techniques and mutually-
approved standard practices for minimizing the likelihood of take of
eagles; and develop standards for system or program risk analyses,
guidance for determining reasonable timeframes for completion of any
required retro-fitting, standards and guidelines for effective
monitoring programs and reports of eagle take to the Service, and
measurable criteria for evaluating the implementation and efficacy of
practices. Over the long term, we estimate it will take about 100
Service staff hours to process the average programmatic take permit.
The programmatic permits we develop initially will likely take longer,
as will large-scale and more complex programmatic permits. Those may
take up to 400 Service staff hours to prepare.
We estimate it will cost the Service approximately $1,750 to
process the average Sec. 22.26 permit application, including $940 for
pre-application technical assistance from Field Office biologists, and
$810 for the Regional Migratory Bird Permit Office once it receives the
application. For Sec. 22.27 permits, we estimate the cost to the
Service to be $1,950. We estimate it will cost the Service about $650
to amend the average permit. The average programmatic permit
application under either Sec. 22.26 or Sec. 22.27 is likely to cost
the Service $5,000. We estimate the average cost to the Service for
substantive amendments to programmatic permits to be $1,500. These
estimates include technical assistance provided by the Field Office, as
do the hourly estimates below.
On average, we estimate that it will take Service employees
approximately 42 hours to process each individual Sec. 22.26 permit
application, approximately 46 hours for each Sec. 22.27 permit
application for take of an eagle nest, and approximately 120 hours for
a programmatic permit under either permit type. Therefore, an
application fee of $500 will offset only about 28% of the cost to the
Government of responding to a request for a Sec. 22.26 and about 25%
of the cost of processing a Sec. 22.27 nest-take-permit application.
The $150 standard amendment fee will make up about 27% of the Service's
costs. The $1,000 programmatic permit application fee will recoup about
20% of the permit processing cost to the Service. The $500
programmatic-permit amendment fee will recoup about 33% of the cost to
the Service. Although these fees are not high enough to allow the
Service to recoup even half the cost of issuing them, they are
significantly higher than other permit application processing fees we
assess. The fees associated with these regulations must be manageable
to small business owners, home owners, and other members of the public
who may find a higher fee prohibitive.
Economic Analysis
A brief assessment to clarify the costs and benefits associated
with this rule follows:
Change. This rule will provide for the authorization of activities
that take bald eagles and golden eagles under the Bald and Golden Eagle
Protection Act (Eagle Act). Under the rule, the public will have the
opportunity to apply for permits to authorize the take of bald eagles
and golden eagles under the Eagle Act. Some incidental take of eagles
was previously authorized under the Endangered Species Act, primarily
bald eagles covered by an incidental take statement issued pursuant to
ESA section 7. Some bald eagle take was authorized under ESA section 10
incidental-take permits. Twelve ESA section 10 permits authorized take
of golden eagles as covered listed species. However, ESA take
authorization for eagles has not been issued in Alaska, where neither
species of eagles was ever listed under the ESA. Thus, any
authorization for take in Alaska would be newly available.
Authorizations for take of bald eagles and golden eagles are expected
to increase from what was authorized under the ESA.
Baseline. The costs and benefits will result from (1) the
authorization of take of bald eagles and golden eagles throughout the
United States under Sec. 22.26, and (2) the number of permits for take
of bald eagle and golden eagle nests throughout the United States under
Sec. 22.27.
Costs Incurred. In general, the costs incurred due to the rule
would relate to the costs of assembling the necessary information for
the permit application, permit fees, and the costs of monitoring and
reporting requirements associated with the permit. As explained below,
it is difficult to predict the number of applications the Service
should anticipate under these regulations. However, due to various
factors, we expect that demand for eagle-take permits will increase,
from about 54 authorizations per year under the ESA to approximately
910 permits per year under the two new Eagle Act permit regulations.
Therefore, using the current number of authorizations issued under the
ESA as a baseline, approximately 856 permit authorizations would be
new.
Some of these entities (those that are non-governmental) would bear
the higher permit application fees under the Eagle Act as compared to
the current fee for an ESA incidental-take permit (to capture a more
equitable share of the costs to the Service that would otherwise be
borne by taxpayers), although many applicants will be State, local,
tribal, or Federal agencies, which are exempt from application
processing fees for Service permits. Costs for other aspects of the
permit-application process will generally be lower than costs
associated with the ESA section 10 permit application process (e.g.,
less information needs to be compiled and provided to the Service as
part of this permit application versus the requirement to create a
Habitat Conservation Plan (HCP) under the ESA).
We are establishing a $500 permit application processing fee for
the standard Sec. 22.26 take permit and standard Sec. 22.27 nest-take
permit. Each of these permit categories will require a $150 fee for
permit amendments. Programmatic permits under both regulations require
a $1,000 processing fee and a $500 amendment fee. We anticipate
receiving about 1,120 take permit applications under Sec. 22.26
nationwide annually, and 20 applications for programmatic permits under
Sec. 22.26. We estimate receiving 70 nest-take-permit applications
under Sec. 22.27 and 20 applications for programmatic nest-take
permits. (We anticipate that we will issue permits in response to the
majority of these applications, particularly the programmatic permit
applications, because applicants will already have coordinated with the
Service before applying for a permit, and many project proponents will
have either adjusted their projects so as not to need a permit
[[Page 46849]]
or concluded that a permit will not be issued for the take associated
with the proposed project. The remaining potential applicants are those
who are likely to need and qualify for a permit.) Approximately 60
standard permits and 16 programmatic permits may need amendment
annually.
We expect about half of the applicants for both types of permits to
be Federal, State, local, or tribal governments, none of which are
required to pay a permit-application processing fee or amendment-
processing fee. Therefore, we estimate that annual application fees and
amendments will total approximately $320,000 (560 permit applications
under Sec. 22.26 x $500 fee, + 35 nest-take-permit applications under
Sec. 22.27 x $500 fee, + 20 programmatic permit applications x $1,000
fee, + 30 standard amendments x $150 amendment fee, + 8 amendments to
programmatic permits x $500 amendment fee). There is no fee for
processing annual reports.
These permit fees would be new costs related to this rule. There
may be additional costs associated with the permit process, which may
include mitigation costs and, if the applicant engages a consultant or
attorney, consultant and legal fees. The information required to apply
for an individual Eagle Act permit is less extensive and easier to
compile than permits under the ESA. Information such as latitude and
longitude are publicly available (e.g., Google Earth). The majority of
people will be able to submit this information to the Service without
the need to hire a consultant, especially with the help of local and
State government staff who may be willing to provide assistance with
location and distance information between the project and the eagle
nest or use area. The Service will direct applicants to available, free
or inexpensive tools and services for obtaining the necessary
information.
Larger project proponents may prefer to hire consultants.
Consultant fees could range from $300 to many thousands of dollars,
depending on the scale of the project, but presumably still would be
cost-effective, as compared to avoiding the take, since the choice is
the applicant's to make. In many cases, for larger projects, project
proponents will have hired consultants to address a multitude of other
factors unrelated to impacts to eagles, so additional costs related to
Eagle Act authorizations would be minimal.
We anticipate that there will be many instances where project
proponents approach the Service, and based on preliminary coordination
with us, adjust project plans to reduce the likelihood of take to the
point where no permit is needed, and none is therefore issued. Some
costs will be associated with this process. However, these costs are
not the result of this permit regulation, but stem from the statutory
prohibitions against taking eagles.
Costs may have been incurred related to current projects that are
in process and are delayed and potential projects that were not
initiated due to the lack of availability of ESA permits during the
period after the bald eagle was delisted in most parts of the lower 48
States and prior to Eagle Act take permits becoming available under
this rule. These costs would be attributed to the determination to
delist the bald eagle. Therefore, this analysis does not quantify these
costs.
In addition to costs to the public, the Service will incur
administrative costs due to this rulemaking. We do not have a firm
basis on which to confidently predict how much demand there will be for
permits under these regulations. We estimate that the number of eagle-
take permits will increase under the rule from an average of 54
authorizations previously issued under the ESA, to 830 Eagle Act Sec.
22.26 take permits, 40 nest-take permits issued under Sec. 22.27, and
40 programmatic permits issued under both regulations, annually. We
expect an increase because: (1) many smaller projects will no longer be
able to get under the ESA section 7 ``umbrella'' of a Federal project
when seeking authorization to take bald eagles; (2) following
delisting, it is now more acceptable and less burdensome to get a
permit to take eagles; (3) most bald eagle populations are increasing;
(4) permits will be available for golden eagle take, and (5) ESA take
permits were not issued in Alaska, but Eagle Act permits may be issued
there under these permit regulations.
The cost of issuing most permits will decrease, but many
authorizations similar to those we previously granted under section 7
of the ESA (where the consultation covered numerous species in addition
to bald eagles) would now require the issuance of an Eagle Act permit
in addition to a biological opinion. On average, we estimate it will
cost the Service approximately $1,750 to process the average Sec.
22.26 permit application (including pre-application technical
assistance). Assuming approximately 1,120 permit applications under
Sec. 22.26, 70 nest-take-permit applications under Sec. 22.27, 40
programmatic permit applications, 60 standard permit amendments, and 16
programmatic amendments, per year, the annual costs associated with
processing permit applications to the Service would total approximately
$2,348,500 (1,120 x $1,750 for Sec. 22.26 permit applications, + 70 x
$1,950 for Sec. 22.27 nest-take-permit applications, + 40 x $5,000 for
programmatic-permit applications, plus 60 x $600 for standard
amendments, plus 16 x 1,000 for programmatic amendments).
The Service will also incur the cost of providing technical
assistance, even where no permit is issued. The workload associated
with each such consultation will generally be less than for situations
where a permit is issued, but it will often be substantial. We estimate
the average technical consultation will require 20 hours of staff time,
and we anticipate the number of such consultations not resulting in
permits will be about 800 per year, resulting in $628,000 in increased
costs to the Service from technical consultations. All estimated costs
for staff time include salary and benefits.
Overall, we estimate that new administrative costs for the Service
to implement this rule will be over $3 million per year, including the
costs to Regional and Field Offices for actual implementation of the
permit program, plus costs associated with the development and
maintenance of the program (e.g., training, developing implementing
policies, responding to Freedom of Information Act requests, budget
formulation, etc.), which will be borne by the Service's Migratory Bird
and Ecological Services program offices.
Benefits Accrued. Under the rule, benefits to the public will
accrue from issuance of permits to take bald eagles and golden eagles
throughout the United States. In general, benefits will include
increased value in land that can now be developed or harvested for
timber, as well as the elimination of the risk and future costs
associated with the potential unpermitted take of eagles that could
occur from the development activities. Benefits will depend on the
level of potential future growth associated with the authorized permit
activity.
Only minimal take of golden eagles (as covered non-listed species
in HCPs) has been authorized under the ESA prior to proposing this
rule. However, because population data indicate that take of golden
eagles should be extremely limited, we anticipate issuing only a
minimal number of new take authorizations for golden eagles under these
new regulations. Some take of golden eagles throughout the United
States that may be authorized by these regulations may result in new
development and activities that could not have proceeded legally
without this
[[Page 46850]]
rule. We expect that economic benefits may accrue as a result of the
implementation of this rule for oil and gas development operations,
farming and ranching operations, mining companies, utilities, the
transportation sector, and private land owners.
Overall, we anticipate issuing approximately 910 take permits per
year, under both regulations. We have completed a final environmental
assessment (FEA) of the effects of this rulemaking, which is available
on our website at http://www.fws.gov/migratorybirds/baldeagle.htm).
Under the FEA, we developed take thresholds that will guide permit
issuance to ensure that take is compatible with the preservation of the
bald eagle and the golden eagle. As a result, we anticipate that the
amount of take that will be requested and authorized under this permit
regulation will not significantly affect bald or golden eagle
populations.
Response to Public Comments
Unless otherwise noted, each subject heading includes all
substantive comments we received on both the June 5, 2007, proposed
rule and the proposed revisions to the rule noted in our August 14,
2008, notice re-opening of the comment period on the rule and
announcing the availability of the DEA. We are responding to the
comments concerning the environmental analysis, population modeling,
take thresholds, and other aspects of the DEA in the FEA. Copies of the
FEA are available at http://www.fws.gov/migratorybirds/baldeagle.htm.)
Populations and Take Thresholds.
(The comments addressed under this heading were all made on the
June 5, 2007, proposed rule. Comments addressing populations and take
thresholds that we received after release of the draft environmental
assessment are addressed in the FEA.)
Comment: The use of the Partners in Flight (PIF) threshold for rate
of population decline beyond which permits would not be issued is
inappropriate. The PIF threshold is unacceptable because it amounts to
a 15% loss over 30 years.
Service response: The final regulation caps the number of permits
we can issue with thresholds designed to ensure increasing or stable
breeding populations. Our reasoning is based on the fact that steady
declines, even as small as 0.54% annually, the rate we proposed in the
June 5, 2007, proposed rule (72 FR 31141), will cumulatively result in
an unacceptably large decrease in population over time. Accordingly, we
are establishing take thresholds consistent with the goal of stable or
increasing breeding populations.
Therefore, for purposes of this regulation, ``compatible with the
preservation of the bald eagle and the golden eagle'' means
``consistent with the goal of stable or increasing breeding
populations.'' Although take thresholds are based on regional
populations, the regulation requires the Service to consider additional
factors, such as cultural significance, that may warrant protection of
smaller and/or isolated populations within a region.
We anticipate no more than modest increases in bald eagle
populations in the future. We have no evidence at this time that leads
us to expect any increase in golden eagle populations. Golden eagles
appear more likely to experience declines, due to loss of prey base,
disturbance, and loss of habitat due to resource extraction activities,
and other factors. For more discussion on population thresholds, see
our FEA of this action.
Comment: The appropriate population threshold on which to base the
number of permits that can be issued (to be compatible with the
preservation of the bald eagle and the golden eagle) should be ``no
negative impact on the eagle's population growth rate.''
Service response: We disagree with this comment. Even if considered
a desirable goal, maintaining the same growth rate indefinitely is
unrealistic. How large a population is ideal for either species of
eagle depends on a range of factors, but as with any other species,
there are ecological limits that weigh against and ultimately prevent
continuous growth. Although we do not predict either species of eagle
will become overabundant in the foreseeable future, some regional
populations of bald eagles will likely level out after reaching an
ecologically-sustainable size. To prohibit human activity within those
areas because the growth rate of eagles has slowed would overly burden
people without any benefit to eagles.
Comment: The Service should clarify the relationship between the
permit regulation and the draft bald eagle post-delisting monitoring
plan (PDMP). The PDMP data will not be adequate for purposes of
detecting the rate of decline the Service will use for permitting
purposes, and neither will the other monitoring sources referenced in
the rule. The Service should instead apply a harvest model that takes
into consideration current population trend and assumes that permits
issued will result in take.
Service response: We acknowledge that our description in the June
5, 2007, proposed rule of how we intended to analyze appropriate levels
of take was not as clear as it could have been (72 FR 31141). Our
intent was always to use modeling, similar to harvest modeling we
conduct for other migratory bird species.
The PDMP is a national-level monitoring plan designed to detect
declines that would merit reconsideration of the bald eagle as
threatened or endangered under the ESA, whereas the population trends
on which we would base take thresholds under this take permit
regulation will be smaller in scale and at levels that are below the
detectability of the PDMP.
To establish take thresholds for this permit regulation, we will
rely on the best data we can obtain, including the sources noted in the
proposed rule. We will use models to ascertain how much take could be
permitted before causing impacts to eagle populations that would not be
compatible with the preservation of the species. If we have inadequate
data to run the models and no other means of assessing the status of
the population where the take will occur, we may not be able to
determine that the take is compatible with the preservation of the
species. If we are unable to make that determination, we cannot
authorize take under the Eagle Act.
Comment: Take thresholds should be assessed based on the national
population as a whole. (The commenter did not provide a basis for this
recommendation.)
Service response: Under the ESA, listing and delisting decisions
must be made purely on the basis of the ``best scientific and
commercial data available.'' Effects on the economy are excluded from
the analysis, as are other human social or cultural values beyond those
furthered by the ESA. Because the Eagle Act is not delimited by such
statutory constraints, and because protecting regional and local
populations of bald eagles and golden eagles is culturally important to
the American people, this regulation interprets compatibility with the
preservation of the species to include maintaining regional and
locally-important populations. Take thresholds would be based on
modeling of regional population data, but within a regional population,
as part of our evaluation of take applications, we will take into
consideration factors that may warrant protection of more localized
populations, including the cultural significance of a local population.
Comment: In addition to the nine bald eagle management populations
mentioned in the proposed rule, the
[[Page 46851]]
Service needs to assess eagle populations by State and NABCI bird
conservation area, or local areas. Otherwise some regional and local
populations would be threatened. Local populations can be of unique
importance, including to the public.
Service response: We are using the NABCI bird conservation regions
(BCRs) to manage golden eagle populations, further broken down by
portion of BCR within each Service Region. For bald eagles, we are not
using nine management populations as we referred to in the proposed
rule. Instead, to establish management populations for bald eagles, we
used natal populations to look at distribution across the landscape,
allowing us to determine rough natural ``boundaries'' between regional
eagle populations. Because the management populations delineated by
this approach roughly correspond to the Service's organizational
structure made up of 8 Service Regional Offices, we will manage bald
eagles using populations within Service Regions, with some adjustments,
explained in more detail in the FEA.
Regarding the concern that local populations will not be adequately
protected, as part of our evaluation of take applications, we will take
into consideration biological and human-induced pressures on, and
cultural significance of, more localized populations. In evaluating
whether the take is compatible with the preservation of the eagle, we
must consider cumulative effects, which will help ensure adverse
impacts are not concentrated in one locality.
Comment: The regulations should explicitly state that permits will
be denied if the population declines to the threshold level.
Service response: The regulations explicitly state that before
issuing a permit, the Service must determine that the take is
compatible with the preservation of the bald eagle or the golden eagle,
which is the statutory mandate. If data indicate populations at either
national or regional scales are declining, depending on the source and
severity of the decline, the Service may establish lower take permit
thresholds where appropriate or suspend permitting until data confirm
the population can support take.
Comment: The Service provides no assurances that bald eagles in
Arizona will be protected. Arizona bald eagles must be considered
separately.
Service response: As explained in greater detail within our FEA, we
will not issue permits that would result in declines in the Sonoran
Desert bald eagle population. Permit thresholds for all regions of the
U.S. will be consistent with the goal of stable or increasing breeding
populations.
Comment: The proposed rule stated that, if populations decline to
the threshold level, the Service will refrain from issuing permits
``until such time that the take would be compatible with the
preservation of the bald or golden eagle.'' That statement should be
amended to add ``unless human life may be impacted.''
Service response: Depending on what factors are responsible for the
decline and whether the decline is likely to be short-term (part of a
recurring population cycle) or long-term, the Service may not need to
suspend permit issuance, and may merely reduce the number of permits
issued. However, if the breeding population is reduced to the degree
that issuance of a permit would be incompatible with the preservation
of the bald eagle or the golden eagle, we cannot issue that permit and
remain in compliance with the Eagle Act, which authorizes the Secretary
of the Interior to issue take permits only if he finds that the take
would be compatible with the preservation of the bald eagle or golden
eagle (16 U.S.C. 668a). Fortunately, in the majority of cases,
emergency take will meet that standard, since many threats to human
life that could be caused by eagles may also threaten the eagles
themselves. For example, if for human safety purposes, a utility needed
to remove a nest to prevent an electrical fire or an airport needed to
haze eagles to prevent them from nesting near runways, the authorized
take would prevent both eagle and human mortalities. Because issuing a
permit in these types of situations would prevent harm to the eagle,
the action would be compatible with the preservation of the eagle.
Nevertheless, to ensure that safety emergencies can be legally
redressed, we are adding issuance criteria to the regulations to ensure
that take associated with safety emergencies is given priority over
take for any other purpose.
Comment: The statement that permits will be issued on a limited
basis raises concerns that a predictable incidental take process will
not be available.
Service response: The Service has the responsibility to implement
certain laws that protect wildlife, including eagles. The Eagle Act
contains a mandate that take of eagles be compatible with the
preservation of the species. Unlimited authorizations for take would be
compatible with the preservation of the bald eagle and the golden eagle
only if demand for permits remains below the level that would cause
population declines. If demand is higher than that threshold, we must
limit the number of permits we issue. Hence, the availability of
permits will depend on the level of demand and the availability of
reliable data reflecting healthy eagle populations. In addition, the
process will be predictable in that the take thresholds for each year
in each region will be known.
Comment: Since the Service cannot issue permits unless the take
will be compatible with the preservation of the species, meaning that
permits cannot be issued without adequate data, the Service should
consider either requiring permittees to contribute to monitoring
efforts, or making the availability of permits expressly contingent on
there being in place a monitoring program sufficiently rigorous to
detect the threshold decline upon which permit issuance will be
predicated.
Service response: As discussed earlier in the preamble, and more
fully in the FEA, we have reduced initial take thresholds for both
species, capping permitted take for bald eagles at 5% of estimated
annual productivity and for golden eagles at historically-authorized
take levels. This more conservative approach will buffer the natural
variability in vital rates affecting population trends and, perhaps
more importantly, ensure against gaps in our data.
``Other interests in a particular locality''
Comment: The Service states that the Eagle Act's authority for
granting the proposed permits stems from the Act's provision that the
Secretary of the Interior may issue permits ``for the protection of
wildlife or of agricultural or other interests in a particular
locality.'' The final rule must define ``other interests.'' Without
doing so, the rule is an overbroad interpretation of the Eagle Act
because it ignores the fact that ``other interests'' is associated with
``wildlife'' and ``agricultural'' interests, and does not comport with
the remainder of the statute's provisions restricting the purposes for
which take can be authorized.
The proposal is not consistent with the Eagle Act because it would
authorize take for any purpose or activity, whereas the statute clearly
intended to limit the purposes for which take could be authorized.
Furthermore, the proposal fails to show what ``other interests'' have
been jeopardized by the long-standing legal prohibition on taking
eagles. At the very least, the Service needs to delineate what ``other
interests'' will qualify for the permit. The proposal's over-broad
interpretation
[[Page 46852]]
of ``other interests,'' would allow permits for a vastly broader range
of purposes than is currently authorized under the MBTA, which is
nonsensical, since the Eagle Act clearly restricts take to certain
purposes, whereas the MBTA can authorize take wherever it is consistent
with the treaties.
Service response: We read Congress's inclusion of the phrase ``or
other interests in any particular locality'' as intended to ensure that
other interests besides wildlife and agricultural claims would be able
to seek remedy through a permit issued pursuant to regulations. In
drafting the statute as it did, Congress gave the Secretary broad
discretion to determine what types of other interests might be
jeopardized by the broad protections afforded to eagles. When the
statutory language was developed, the perception that eagles were a
significant threat to livestock was widespread. Today, the American
economy is comprised of numerous additional ``interests'' that have
largely supplanted ranching in many areas of the country. These ``other
interests'' provide jobs and support our infrastructure and quality of
life, and by so doing merit similar protection as agriculture and
livestock. Therefore these regulations provide a means to authorize
eagle take to protect ``other'' interests such as transportation needs,
electric utility maintenance, residential and commercial development,
forestry, resource development and recovery, and other public and
private interests.
Comment: In contrast to the restrictive process for authorizations
for Native American religious use, the Service here proposes a sweeping
process for allowing a broad spectrum of public and private interests
to take eagles where their locations stand in the way of development
and utility interests. The disparate treatment between these approaches
must be reconciled.
Service response: The process by which we issue permits to Native
Americans for take of eagles from the wild and permits for possession
of eagle parts and feathers from the National Eagle Repository are the
least restrictive means of doing so while protecting other compelling
interests. Unlike under the permit regulations we are finalizing
through this rulemaking, we do not require any mitigation or other
conservation measures to offset the impacts of Native American
religious take permits.
Furthermore, the effect of issuing permits under this proposed
regulation will not impinge on Native Americans' access to eagles for
religious/ceremonial use. This regulation includes provisions to ensure
that, if overall demand for authorizations to take eagles approaches
what would be compatible with the preservation of the bald eagle or the
golden eagle, requests related to Native American religious/ceremonial
use will be authorized before other requests for take.
Scope and Criteria of Sec. 22.26
Comment: The proposed rule states that a permit may be issued when
several criteria are met including where ``the take cannot practicably
be avoided.'' The use of a ``practicable avoidance'' standard is
inconsistent with the Eagle Act because it elevates cost and overall
project concerns over protecting bald eagles. The Eagle Act provides
that take should be authorized only where it is necessary to protect a
legitimate interest, not merely a facilitating factor. The applicant
should have to affirmatively demonstrate that, in the absence of the
permit, the legitimate interest cannot be met, and the applicant must
not be allowed to define the goals in an overly narrow manner.
Service response: We agree with the commenter that the goal for
which the take is necessary must not be defined too narrowly by the
applicant. For example, if a municipality is installing a bike trail
with the goal to create a trail with an unbroken view of the river, it
may be more difficult to avoid disturbing eagles along the river, than
were the goal less narrowly defined--for example, to create a bike path
that loosely parallels the river. Where possible, interests should be
defined broadly enough to allow plans to be reasonably modified if
necessary to protect bald eagles or golden eagles.
We do not agree that the practicable avoidance standard elevates
the interest of the project proponent over eagles because whether the
impact can practicably be avoided is only one of the factors we will
weigh before issuing a permit, and it is secondary to whether the take
will be compatible with the preservation of the bald eagle or the
golden eagle. Nevertheless, to address this concern, when we re-opened
the comment period on the regulation in August 2008, we modified the
proposed definition of ``practicable'' to incorporate the need to
consider the feasibility of the action relative to the scope of the
impact on eagles. The final definition of ``practicable'' reads:
``capable of being done after taking into consideration, relative to
the magnitude of the impacts to eagles (1) the cost of remedy
comparative with proponent resources; (2) existing technology; and (3)
logistics in light of overall project purposes.''
Comment: The applicant should not have to show that the take cannot
practicably be avoided or that he has minimized impacts to the extent
practicable. The language is similar to that used under the Clean Water
Act section 404 wetlands permit program, which raises the concern that
the Service will require applicants to conduct a detailed alternatives
analysis test, including consideration of project purpose and
alternative project sites. The Service should identify the authority
under the Eagle Act for requiring that impacts be minimized to the
extent practicable.
Service response: The Eagle Act stipulates that permits may be
issued where the take is necessary to protect ... other interests in
any particular locality (italics added for emphasis). Some could argue
that, to be necessary, a thing is absolutely required and cannot be
omitted or avoided. We believe a less strict interpretation is
reasonable and justified to ensure that human activity is not overly
restricted, and so interpret ``necessary'' as something that cannot
practicably be avoided. In short, we view the practicability standard
as less burdensome than other reasonable interpretations of the
statute's purpose and intent, and therefore appropriate to adopt for
purposes of this rulemaking.
Comment: Take authorized by these permits should be limited to
activities that benefit the public welfare.
Service response: The Eagle Act does not limit take to activities
that benefit the public as opposed to private interests. The statute
specifically provides that take can be authorized to protect
agriculture, which in this case primarily meant privately-owned
livestock.
Comment: The Service should model the regulation on the U.S. Army
Corps of Engineers' requirements for avoidance, minimization, and
mitigation of unavoidable impacts, and these should be clearly set
forth in the regulation.
Service response: While it was not our goal to model this proposed
rule on Corps' regulations, the Service's official mitigation policy as
set forth in the U.S. Fish and Wildlife Service Manual (501 FW 2) and
reflected in this rule, is based on a similar tiered approach to
reducing the overall impact of activities, beginning with avoidance and
minimization, and requiring compensatory mitigation for large-scale
activities with greater impacts.
Comment: Permits for take that results in mortality should be
issued only for human health and safety.
Service response: Our goal and responsibility under the Eagle Act
is to
[[Page 46853]]
preserve bald eagles and golden eagles, which we interpret and define
as consistent with the goal of stable or increasing breeding
populations of both species, but not protecting each and every eagle.
Take that results in a loss of productivity and take that results in
mortality must be assessed primarily in terms of affects to the
regional and local area populations. Depending on the age and breeding
status of an individual eagle, some take that results in mortality will
have less impact than some disturbance take. Therefore, we believe
there is no rationale to enact a prohibition on take that results in
mortality--versus take in the form of disturbance--for commercial
purposes.
Comment: There is a big difference between lethal vs. non-lethal
take in terms of the significance of the eagle as a sacred being for
Native Americans. Native Americans will not support lethal take for
commercial purposes.
Service response: First, see our preceding response. We will,
however, when appropriate, undertake consultation with tribes that may
be affected by the lethal take of an eagle on a case-by-case basis, and
will consider the cultural and spiritual significance of eagles and how
take that results in mortality could adversely affect tribal cultural
values at that time.
Comment: Where take resulting in mortality is authorized for an
industry or other non-tribal entity, tribal members should be given the
opportunity to physically take the eagles.
Service response: If feasible and appropriate, we may encourage a
tribe that applies to take eagles to take ones that would otherwise be
taken under the regulations herein. However, as a generality, we think
it will be difficult to meet the purposes of both permits with a single
take. Tribes that qualify for a take permit must certify that the take
itself is an integral aspect of the religious ceremony in order to
justify why an eagle from another source will not meet the tribe's
needs. In other words, presenting the tribe with an eagle carcass will
not suffice. Most eagle mortalities authorized under the permit
regulations at Sec. 22.26 are ``non-controllable,'' that is, the
timing and location of each take is not precisely known before it
occurs. When discovered, the carcasses of eagles killed under these
permits will be sent to the National Eagle Repository to meet the
religious needs of tribal members where the take itself is not
necessary to carry out the religious ceremony for which eagle parts and
feathers are sought. This provision provides an equitable opportunity
for members of all federally-recognized tribes to use feathers and
parts from such eagles for religious purposes.
Comment: The consideration of secondary impacts must be in the
regulations, not just the preamble.
Service response: We agree, and have added language addressing
consideration of secondary impacts--now denoted as ``indirect
effects''--to the regulations under Sec. 22.26 at (e)(1), (e)(2) and
(f)1, and under Sec. 22.27 at (b)(7) and (e)(1).
Comment: Secondary impacts will sometimes affect eagles that are
known to breed, feed, or shelter on tribal land, and the tribes should
be consulted before a permit is issued that would affect such eagles.
Service response: Before issuing a permit under these regulations,
the Service will consider whether proposed plans might affect tribal
rights to trust resources. If the Service determines that such effects
might occur, we will notify the affected tribe(s) and consult with them
if requested.
Comment: The use of ``means test,'' requiring the Service to
consider ``the cost of a remedy comparative with proponent resources''
in determining whether a measure is practicable, is arbitrary and will
result in more stringent requirements for project proponents with more
financial means, rather than basing measure purely on what is
practical.
Service response: In fact, we do believe that more stringent
measures are appropriate for project proponents with more financial
means. The plainest meaning of ``practicable'' is ``capable of being
done.'' Greater resources, financial and otherwise, enhance capability
and increase options. For example, a large landowner will generally
have more options when designing a project than a small landowner.
Thus, a large land-holding company building on 500 acres should be able
to site proposed buildings farther from a communal roost than would a
private homeowner on a 2-acre lot. Similarly, if the potential remedies
for avoiding the take entail more money as opposed to more land, a
proposed, large commercial project that is likely to take eagles may be
able to alter the project design in a manner that requires additional
financial resources but avoids the take, and still make enough money to
be profitable.
Comment: Concentration areas need more protection than is proposed.
The Service should designate areas like the Chesapeake Bay as critical
to the continued recovery and maintenance of bald eagles, and establish
higher standards for permitting take in those areas.
Service response: The commenter's suggestion is beyond the
Service's authority under the Eagle Act. However, to the degree that
the Chesapeake Bay and other areas are critical to the preservation of
bald eagles, take in those areas will be more highly scrutinized, since
we must consider compatibility with the preservation of the eagle
before issuing a take permit. Part of that assessment will be an
analysis of cumulative impacts, which will help safeguard particular
localities that are critical for bald eagles.
Comment: The same consideration of whether alternative habitat is
available that is proposed to be used for nest take should also be a
criterion for disturbance permits when the disturbance is associated
with the permanent loss of a nest, foraging area, or roost site.
Service response: We agree with this comment and have added this
consideration to Sec. 22.26(e), Evaluation of applications.
Prioritization Criteria
Comment: There needs to be a system of prioritization. Otherwise,
the demand will threaten to reverse population recovery.
Service response: Recognizing the possibility that demand could
exceed what would be compatible with the preservation of the bald or
golden eagle in certain regions, we established regional take
thresholds and will not issue permits in excess of those limits. We
agree with the commenter that a system of prioritization is needed in
case demand runs up against the thresholds, particularly in light of
other types of eagle take permits we issue. Therefore, in the event
demand exceeds take thresholds, the regulations include issuance
criteria to ensure eagle take permits are issued according to following
prioritization order:
1. Safety emergencies (Sec. 22.23 and new Sec. Sec. 22.26 and
22.27);
2. Native American religious use for rites and ceremonies that
require eagles be taken from the wild (Sec. 22.22);
3. Renewal of programmatic permits (Sec. Sec. 22.26 and 22.27, and
possibly other sections);
4. Non-emergency activities necessary to ensure public health and
safety (Sec. 22.23 and new Sec. Sec. 22.26 and 22.27);
5. (For golden eagle nests only) resource development and recovery
operations (Sec. 22.25);
6. Other interests (Sec. Sec. 22.21, 22.22, 22.23, and new Sec.
22.26).
[[Page 46854]]
Comment: The Service should give priority to projects that are in
the public interest.
Service response: If demand exceeds take thresholds that would be
compatible with the preservation of the bald eagle or the golden eagle,
we will prioritize Native American religious and cultural use and
activities that serve the public interest over those that would largely
benefit private or commercial interests.
Comment: Will the criteria giving Native Americans preference for
eagle take mean that they will get depredating golden eagles instead of
falconers?
Service response: Yes; although this rulemaking is separate from
the regulations governing take of depredating eagles, the same
principals that underlie the prioritization criteria in this regulation
would apply to take of depredating golden eagles. Thus, if both a tribe
(for religious purposes) and falconer request possession of such an
eagle, we will give priority to the tribe.
Comment: The provisions giving first priority to tribes should
require them to take from areas with the highest thresholds (if
location not dictated by their religion).
Service response: If demand is greater than take thresholds in a
given region, and a tribe requesting take can practicably take an eagle
in another region that has take thresholds that are higher than demand
while meeting the religious needs of the tribe, we may require the
tribe to take the eagle in that other region.
Comment: The prioritization criteria and allocation process could
affect the ability of the U.S. Department of Agriculture's Wildlife
Services' program to manage depredating golden eagles.
Service response: The prioritization criteria could affect Wildlife
Services' management of depredating golden eagles in rare cases. Where
feasible and in accordance with tribal religious needs, if requests for
take exceed take thresholds, we will direct tribes to take depredating
eagles that would otherwise be taken by Wildlife Services or falconers.
Relationship to the National Bald Eagle Management Guidelines
Comment: The rule is unclear as to whether a permit is required for
take that results from activities conducted in accordance with the
Guidelines and other best management plans. The final rule should
explicitly state that compliance with the Guidelines amounts to a de
facto permit, or at least creates a presumption of compliance with the
Eagle Act. The new bald eagle management scheme in Florida clearly
states that no permit will be required for activities that conform to
the Guidelines. The Service should do the same.
Service response: The State of Florida's new bald eagle management
scheme is based on Florida law and does not require a permit to take
bald eagles. Our regulations are authorized by the Eagle Act, which
specifically requires a permit to take bald eagles. Therefore, we
cannot do as Florida has done, that is: promulgate regulations that
authorize some take without a permit. We believe take is generally
unlikely to occur when our Guidelines are used to conduct of activities
near eagles. Therefore, most activities that clearly conform to the
recommendations provided by the Guidelines would not necessitate a
permit. However, adherence to the Guidelines is not always as
straightforward as simply keeping the project footprint 330 or 660 feet
from an eagle nest, based on a category of activities. The Guidelines
are guidance, and do not dictate what effects will actually happen to
eagles from any particular activity. Many activities entail a variety
of impacts, sometimes to eagles in more than one location, sometimes as
the result of subsequent, foreseeable effects. Accordingly, to avoid
take of eagles, more than the immediate project footprint should be
considered. Also, some activities will not fit neatly into the
categories provided in the Guidelines, and sometimes special
circumstances may be present that make take more or less likely to
occur. Examples of such circumstances include unusually open
topography, acoustic anomalies, scarcity of alternative resources in a
particular vicinity, and so forth. In summary, ``adherence to the
Guidelines,'' is not a simple formula that will uniformly predict
whether take will occur.
Comment: The Service should consider ways to allow for minor
exceptions to the Guidelines without requiring a permit.
Service response: See our response to the preceding comment. We do
not prohibit or authorize exceptions to the Guidelines. All we can
prohibit or authorize are certain impacts to eagles. Anyone may choose
to ignore the Guidelines, and that choice requires no authorization
from us. However, if an eagle is disturbed or otherwise taken without a
permit, it will be a violation of the Eagle Act.
Comment: The Service should make permits available for activities
that conform to the Guidelines. At the very least, the Service should
issue ``No-take'' letters to give landowners written protection from
take liability for activities consistent with the Guidelines.
Service response: Due to the limited staff and resources of our
agency, we want to discourage applications for permits to cover take of
eagles that is in fact unlikely to occur. We believe our conservation
mission is better served by helping the public reduce the likelihood of
take by providing permits in appropriate circumstances where take is
likely (and cannot practicably be avoided). If, after an application is
submitted, the Service determines that take is not likely to occur, we
may issue the permit (if permit issuance criteria are met); however, if
we do not consider take likely to occur, we will not subtract the
authorized take from Regional take thresholds--unless follow-up
monitoring reveals that it did actually occur.
Comment: The Service should use the various guidelines that have
been developed for specific States or regions when evaluating take.
Service response: The guidelines developed by different States and
regions largely predate the Federal regulatory definition of
``disturb.'' To the degree that ``disturb'' has been interpreted
relatively consistently by the different State and Federal agencies
that developed the various guidance, those documents were useful to us
when we developed our National Bald Eagle Management Guidelines.
Because the Guidelines are designed to prevent an impact (disturbance)
that is a Federal prohibition, we believe that a single set of
recommendations for avoiding a violation of that prohibition should be
applied throughout the United States. This in no way precludes States
from enforcing their own statutory and regulatory protections for
eagles, and applying their own guidance for minimizing State-prohibited
impacts to eagles.
Mitigation
Comment: The proposed rule was unclear as to whether mitigation
will be required for every permit issued, and also as to the range and
types of mitigation that will be used.
Service response: Mitigation includes: avoidance, minimization,
rectification, reduction over time, and compensation for negative
impacts. Under these regulations, all permittees are required to avoid
and minimize the potential for take to the degree practicable, and for
programmatic permits, to the point where take is unavoidable.
Depending on the scale of the take, and the particular
circumstances, the Service may require rectification and/or
[[Page 46855]]
reduction over time from some permittees. Additional compensatory
mitigation will usually be required only for (1) programmatic take, and
other multiple take authorizations; (2) disturbance associated with the
permanent loss of a breeding territory or important traditional
communal roost site; or (3) as necessary to offset impacts to local
area populations. The take thresholds associated with this permitting
process will ensure that each authorized take, along with cumulative
take, is compatible with the preservation of bald eagles and golden
eagles. Permit issuance is based on our making a finding that the
population can withstand the take that will be authorized without
experiencing a decline. Therefore, compensatory mitigation for one-
time, individual take permits will not typically be necessary for the
preservation of eagles. For projects with long-term impacts and/or
impacts of a greater magnitude, compensatory mitigation will generally
be required to reasonably offset the magnitude of the impacts.
We are developing implementation guidance to ensure consistency in
how these permits are administered. Mitigation will be addressed in
more detail in that document, which will be made available for public
notice and comment before being finalized. Some compensatory mitigation
options we are considering at this point include: purchase and
preservation of habitat or potential habitat; use of conservation
easements to protect important eagle-use areas or potential nest sites;
and contributions to a fund established to benefit eagles.
Comment: Requiring compensatory mitigation for every permit will
create a disincentive for landowners who would seek a permit in lieu of
following the Guidelines.
Service response: Permit issuance is predicated on the requirement
that the take cannot practicably be avoided and that the applicant has
proposed avoidance and minimization measures to the extent practicable.
Under those circumstances, if the applicant can practicably avoid the
take, he must. Requiring additional compensatory mitigation should have
no effect on whether the applicant can follow the Guidelines.
Comment: The final rule itself (and not just the preamble) must be
explicit that secondary, foreseeable impacts will be assessed for
purposes of determining what mitigation will be required.
Service response: The rule provides that we must consider
reasonably foreseeable secondary impacts when assessing the overall
level of take. Also, we added language to the permit conditions at
Sec. 22.26(c)(1) that requires the Service to consider indirect
effects for purposes of determining whether compensatory mitigation is
appropriate.
Comment: Mitigation must be geared to preservation of the local/
regional population.
Service response: Avoidance and minimization are inextricably tied
to the local population. Generally, rectification and reduction over
time also benefit the local population. Ideally, as provided in our
Service Mitigation Policy, the benefits of compensatory mitigation
would accrue to the area where the take will occur and second priority
would be in proximity to that area. However, if compensatory mitigation
within or in proximity to the planning area is not practicable or a
significantly larger benefit could be realized in another locality or
region, the permit may include mitigation measures that benefit eagles
in a different locality.
Comment: Any funding from mitigation should be used to protect
eagle habitat.
Service response: We agree that protecting eagle habitat should be
a high priority. However, there may be other beneficial uses for
mitigation funds--for example to support surveys and population
monitoring.
Comment: The Service must affirmatively describe the required
minimization measures within the terms and conditions of the permit. As
written, the rule allows the applicant to propose his or her own
measures.
Service response: The project proponent must provide as part of his
or her application a description of the measures to which he or she is
prepared to commit. Without that information, we cannot evaluate the
overall impact of the project. If the proposed measures are not
adequate, we will not issue the permit as proposed. The regulations
preclude us from issuing a permit if the applicant has not proposed
measures to minimize impacts to the degree practicable. In such a case,
we will work with the applicant to develop stronger minimization
measures or we must deny the permit. In reality, we will often work
with the applicant during the application process, so the terms and
conditions proposed by the applicant have already been evaluated by us
when we receive the completed application. The final terms and
conditions will be explicitly spelled out on the permit.
Comment: Mitigation funding should be required and should go to
States to compensate for their monitoring costs.
Service response: As explained above, we will not always require
compensatory mitigation for take that we think is likely to amount to a
one-time loss of productivity. Also, compensatory mitigation may not be
in the form of payment. For example, it might be fulfilled by donation
of an easement. If compensatory mitigation is required in the form of
payment to a fund established to offset the impacts of take, the
disposition of those funds will depend on various factors, such as
whether the funds could be used to benefit local eagle populations and
whether the Service has entered into agreements with the State or tribe
to apply such funding. If States or tribes conduct surveys and
monitoring of bald or golden eagles, mitigation funds could be directed
to help offset the costs.
Comment: The rule should allow compensatory mitigation only in
extraordinary circumstances.
Service response: We interpret this comment to mean that the
Service should always require avoidance and minimization, and not allow
compensatory mitigation to take the place of such measures. We agree,
and the regulations require that applicants for both types of permits
must take all practicable steps to avoid and minimize take. If this
condition is not met, the regulations do not allow us to issue a
permit.
Comment: The Service needs to clarify which Service program office
(Ecological Services or the Migratory Bird Program), will be
responsible for determining impacts and how much take will occur. It is
important that the Service adopt a consistent methodology across
regions.
Service response: Evaluation of impacts will be consistent across
Service Regions and between Service programs, which will all be using
national implementation guidance (to be developed) addressing this and
other aspects of permit issuance.
Comment: Compensatory mitigation should not exceed the level of
measurable impacts.
Service response: We agree with this comment, but note that
compensatory mitigation will rarely precisely counteract impacts to
eagles. In reality, for the largest impacts, compensatory mitigation is
more likely to fall short of, rather than exceed impacts, since it is
difficult to replace the loss of territory or communal roost site with
creation of new ones.
Comment: If an applicant conducts avoidance and minimization to the
point where take will likely be avoided, he will probably want a permit
to justify his efforts, resulting in a bigger workload than the Service
appears to be anticipating.
[[Page 46856]]
Service response: We now anticipate a larger workload than when we
proposed the June 2007 rule, partially because of the demand from
project proponents who re-design projects to avoid take. First, the
process of providing them with the technical assistance needed to avoid
the take may require significant staff resources from our Ecological
Services biologists, and second because our Migratory Bird Permit
Offices will still need to consider every permit application we receive
and either deny or issue a permit. For this reason, we discourage
permit applications from people who are not likely to take eagles.
However, issuing permits to some of these applicants will provide a
benefit: the permittees will be required to monitor the activity site
and report how eagles react to the activity, providing us with valuable
information on whether take that we believe is unlikely to occur does
not in fact occur.
Comment: Will compensatory mitigation be required for removal of
nests that are of low biological value?
Service response: We are unlikely to require compensatory
mitigation for removal of nests that have very low biological value.
Permit Conditions
Comment: The public should be given the opportunity to comment on
each permit after public notice.
Service response: While bald eagles were listed under the ESA, the
public was provided an opportunity to comment before the Service issued
each section 10 incidental take permit that authorized take of eagles.
That process is a statutory requirement of the ESA (16 U.S.C.
1539(a)(2)(B)). The Eagle Act has no such requirement. While that does
not preclude us from creating such a requirement under these
regulations, we do not believe a public-comment period for each permit
would provide an additional benefit to eagles that would justify the
regulatory burden on the public and on our limited staff and resources.
Comment: The permit must be specific as to how much take is
authorized and how it will occur. Otherwise, the permit may
inadvertently grant indemnity for all take, whether anticipated or not.
Service response: Most permits will be specific as to how much take
is authorized and how and roughly when it will occur. The exception
will be programmatic permits, which will authorize take for large-scale
and or long-term activities where take is anticipated but the exact
amount, location, and timeframes are impossible to identify. Rather
than ``grant indemnity for all take,'' programmatic permits will
authorize only the take that occurs despite implementation of stringent
ACPs designed to reduce take to the point where it is essentially
unavoidable (yet anticipated). The overall effect of these types of
permits will be a reduction in mortalities and other adverse impacts to
eagles.
Comment: Permits should not specify exact numbers of authorized
take. Rather, levels of take should be identified regionally.
Service response: Levels of take will be identified regionally in
order to establish population thresholds up to which take can be
authorized. However, each permit (except programmatic permits designed
to reduce ongoing take) will authorize a specific amount of take to
ensure that the cumulative take authorized under all the permits in a
region does not exceed the regional population threshold.
Comment: The time period for a permit should be identified. Permits
should not exceed one year.
Service Response: Each permit will have a limited tenure specified
on the face of the permit. These final regulations limit the tenure for
all permits to five years or less. Many projects are multi-year
projects, and a 1-year tenure would introduce unnecessary uncertainty
for a project proponent that cannot identify exactly when the take will
occur. Receiving applications for the same take in consecutive years
would also create more work for our permit offices without providing
any benefit to eagles. That said, the rule limits permit tenure to five
years or less because factors may change over a longer period of time
such that a take authorized much earlier would later be incompatible
with the preservation of the bald eagle or the golden eagle.
Accordingly, we believe that five years is a long enough period within
which a project proponent can identify when the proposed activity will
result in take.
Comment: The rule should provide for inspections at any hour with
no notice from the Service.
Service Response: The rule provides that the Service, or a
designated agent, may inspect the area ``where eagles are likely to be
affected, at any reasonable hour, and with reasonable notice from the
Service, for purposes of monitoring eagles at the site(s).'' The
purpose of the inspection is to determine whether eagles are using the
site, not to surprise and scrutinize the permittee's activities.
Comment: The final rule should contain provisions for review,
denial, modification, and revocation. Of particular concern is the
potential situation where populations decline unexpectedly, or new
information reveals the take would not be compatible with the
preservation of the bald or golden eagle.
Service response: Provisions for review, denial, modification, and
revocation, and other general processes and procedures that apply to
all the types of permits the Service issues are found in 50 CFR part
13. For that reason, we do not reiterate those provisions within each
section of regulations that govern individual permit types. Regarding
the scenario raised by this commenter, 50 CFR 13.28(a)(5) provides that
a permit may be revoked if ``the populations of the wildlife or plant
that is the subject of the permit declines to the extent that
continuation of the permitted activity would be detrimental to
maintenance or recovery of the affected population.''
Comment: The rule should address unanticipated take by specifying
that the permittee must contact the Service immediately and apply for a
new permit.
Service response: We have added language to the rule requiring the
permittee to contact the Service if unanticipated take occurs. As to
whether a new permit would be required, that will depend on the
circumstances. Some situations may be more appropriately addressed by
amending the existing permit or taking some other action.
Monitoring
Comment: Monitoring should not be required of the permittee. It is
the responsibility of the Service. A three-year monitoring period is
overly burdensome and would not result in useful information. Public
reporting is not accurate or timely. The Service should develop a
research project to monitor eagles to obtain accurate information.
Service response: The monitoring that will be required of the
permittee is relatively minimal yet will serve several important
purposes. The monitoring simply entails observing periodically, during
the season(s) when eagles would normally be present, the area where the
take is likely to occur and noting whether eagles continue to nest,
roost, or forage there. Even this minimal monitoring will be important,
however, because it will provide the Service with the best information
available as to how human activities impact eagles. If we find that
take does not occur as frequently as we anticipated, we can adjust the
recommendations we provide in management guidelines and technical
assistance. Also, if demand for take is
[[Page 46857]]
high enough to approach take thresholds, ascertaining that it did not
occur under some permits could enable us to issue other permits where
we otherwise would not. We know that reporting will not always be
accurate, but even so, it is our best available option for garnering
this data, since we do not have the staff and resources to monitor
every site ourselves.
Comment: The Service needs to provide methodology for monitoring.
The Service should be more specific as to what information is required
by ``information on eagle use of important eagle-use areas potentially
affected.''
Service Response: The monitoring requirements are relatively simple
and require little in the way of methodology. The annual report form
requires the permittee to submit the dates, times and numbers of eagle
sightings at the important use areas where eagles are likely to be
affected. Also, the report requires monitoring the site(s) periodically
during the season that eagles normally breed, feed, or shelter in the
area, at a time of day when eagles are most likely to be in the
vicinity, if applicable (e.g., for communal roosts in the evening; for
foraging areas, in the morning or afternoon).
Comment: The rule should require that monitoring be conducted by
professional raptor biologists. Permittees will not be able to
ascertain whether eagles adopt alternative nest sites or how the
permitted activity may have affected the dynamics of a communal roost
or feeding area.
Service response: We agree that more extensive monitoring would be
very useful for purposes of understanding how eagles are affected by
human activities. However, we expect that many permittees will not have
the resources to hire professional biologists to perform that service.
Our agency also does not have the resources to monitor all project
sites. Therefore, the rule requires very minimal monitoring that the
average person can easily perform. However, the rule also provides that
the permittee must allow the Service or a designated representative to
visit the area for purposes of monitoring eagle use. During those
visits, we should be able to collect more extensive information
regarding the dynamics of eagle behavior at the site. Although we do
not have the capacity to carry out that function at the majority of
permit sites, we can use the data we collect from the limited site
visits to extrapolate eagle responses to permitted actions over a
larger geographic scale.
Comment: The post-delisting monitoring plan should be adequate for
purposes of monitoring bald eagles.
Service response: The PDMP is a national-level plan designed for an
entirely different purpose than the monitoring that would be required
under this permit regulation. The purpose of the PDMP is to detect
declines in bald eagle populations that could trigger relisting. The
purpose of the permittee's monitoring requirements in this rule is to
ascertain whether permitted take actually occurs.
Comment: Is a permittee (such as an electric utility) only required
to implement post-activity monitoring for three years after the initial
construction of the site or for ongoing unavoidable take? Will its
monitoring plan need Service approval, and will the results need to be
furnished to the Service?
Service response: Monitoring is related to the activity that is
likely to take eagles. If a project is likely to take eagles during an
initial construction phase, but take is unlikely to occur during the
subsequent, ongoing use of the facility, then monitoring may be
required for up to three years after the construction is completed. If
the ongoing activity is likely to take eagles, then the monitoring may
be required for up to three years after cessation of the activity. For
programmatic permits, the permitted industry may develop, in
coordination with the Service, a specific, more extensive monitoring
protocol, adherence to which would be a condition of the permit.
Otherwise, as discussed above, monitoring for most permits is
relatively straightforward and will not require any plan that needs
approval from the Service. Monitoring results will need to be reported
on an annual basis to the Service, for as long as monitoring is
required.
Comment: Monitoring and report data should be provided to the
State, particularly when activities could affect nesting results during
State surveys.
Service response: We will make monitoring and report data available
to States and tribes whenever requested (to the degree allowable by
laws such as the Privacy Act). As with other data we collect, as well
as data collected by the States and tribes, we support the sharing of
information that pertains to joint interests between our governments.
Comment: The proposal's reliance on permittee self-monitoring is
misplaced and threatens the long-term preservation of eagles. A
detailed plan for achieving compliance, consistency, and
confidentiality is needed. The rule should require monitoring to be
conducted by a disaffected third party approved by the Service.
Permittees should pay into a fund for experienced, independent
organizations to provide or verify data.
Service response: We may include a requirement that monitoring be
conducted by a third party as a permit condition for some larger
projects and programmatic permits. However, although it might sometimes
improve accuracy, we do not think it would be reasonable to require all
permittees to enlist a third party to conduct the required monitoring.
Also, we are not confident that enough disaffected third-party entities
would be available to permittees in every location. We believe most
permittees will try to provide accurate information. To increase the
chances of that, we added language to the annual report form
emphasizing that (1) filing an accurate report is a condition of the
permit and (2) reporting the absence of eagles from the monitoring site
will not, by itself, affect the continued validity of the permit.
Application and Issuance Process
Comment: The proposed rule requires the permit applicant to provide
a certification that the proposed activity is in compliance with local,
State, and Federal laws. What is meant by ``certification''? Who is
responsible for this evaluation?
Service response: We meant that the application form would require
the applicant to sign a statement that the proposed activity is in
compliance with other applicable laws. However, we have revised the
draft application form. It no longer requires that certification, but
instead asks the applicant to state whether he or she has obtained the
State or tribal authorizations necessary to conduct the activity. All
of our migratory bird and eagle-related permits contain the standard
condition that the Federal authorization is not valid unless the
activity complies with all other applicable laws, including State and
local laws. Permits issued under this regulation will include that
condition and clarify that the activity must also be in accordance with
any applicable tribal laws.
Comment: Can a landowner apply for a permit for multiple takes in
an entire area of ownership that is not contiguous?
Service response: A landowner can apply for as many takes as he or
she wants in different locations. However, each take we authorize will
have to meet the permit-issuance criteria (e.g., it must be compatible
with the preservation of the eagle, cannot be practicably avoided,
etc.). Depending on the particular circumstances and in order to ensure
that issuance criteria are met, we may authorize only a portion of the
requested take (or all or none).
[[Page 46858]]
Comment: The Service should be required to coordinate with State
wildlife agencies when issuing permits. The Service should work with
the States to develop implementation guidance to avoid
incompatibilities.
Service response: We intend to work with States to establish
protocols for coordination between the Service and States during the
permit process.
Comment: The rule should contain timelines for how long the Service
can take to issue permits. Projects are often subject to very specific
construction and financing constraints.
Service response: Timelines for permit issuance do not belong in a
regulation, but rather in internal implementation guidance. We plan to
include target processing times in the implementation guidance
associated with this permit program.
Comment: The Service should establish the expectation for and a
process of pre-application consultation to direct potential applicants,
establish the need for a permit, and protect the eagle resource. It is
essential that the Service make technical assistance readily available
to advise project proponents regarding how to avoid impacts and to help
in preparation of permit applications. However, it appears that neither
the Service nor the States have the resources for technical assistance
and consultation with applicants. Who will be providing this service
(and how) needs to be addressed.
Service response: We agree that technical assistance is a vital
customer service. It enables us to provide our best advice as to
whether take will occur and how to avoid or minimize any take, and at
the same time reduces uncertainty for the public. It will also reduce
unnecessary permitting workload and better protect eagles. For these
reasons, we are committed to providing technical assistance early in
the process to the extent our limited staffing and resources will
allow.
Comment: The requirement that the applicant be responsible for
field surveys and providing data on the location of nests and
important-use areas is overly onerous and would make it difficult to
apply for a permit.
Service response: We removed this language from the regulation
because many projects will not require field surveys and we felt that
language might intimidate people whose activities were relatively
straightforward. Nevertheless, it is the applicant's responsibility to
provide us with a complete application before we can process it. We
will assist those in need to the degree our staffing and resources
allow.
Comment: Provisions should be added for expedited permit issuance
for emergency situations. Under the ESA, there are provisions for
emergency take that the Service should adopt for eagles, wherein the
take can be documented through emergency consultation done after the
emergency response has been completed.
Service response: The Eagle Act does not allow the Service to
authorize bald eagle take without issuing a permit (16 U.S.C. 668a). We
will make every effort to expedite issuance of a permit in situations
where take is unavoidable due to an emergency. If circumstances are
such that a permit cannot be issued prior to the take in cases of
genuine emergencies despite the best efforts of the parties involved,
we are unlikely to refer such take for prosecution under the MBTA or
the Eagle Act. Procedures for addressing emergency take will be
addressed in implementation guidance.
Comment: Any eagle take permit must be reviewed under section 106
of the National Historic Preservation Act (NHPA) because any such take
has the potential to affect historic properties and culturally
significant sites. Eagle nests and other sites where eagles are present
may be considered culturally significant to Native Americans as well as
other American citizens, requiring the Service to conduct a cultural-
resource assessment prior to issuing these permits.
Service response: We appreciate this comment, and will comply with
Section 106 on a case-by-case basis when issuing permits that have the
potential to result in effects on historic properties. We also plan to
consult with appropriate stakeholders, including tribes, to develop
State or regional agreement to govern how the Service will comply with
the NHPA when issuing permits to take eagles in specific States or
regions.
Comment: Even if not on tribal land, eagles, eagle nests, and other
sites have cultural significance to many Native American tribes and
tribal members. For that reason, tribes should be consulted before any
eagle take permit is issued.
Service response: Before issuing a permit, we will consult with
federally-recognized tribes if issuance of the permit may adversely
affect their traditional tribal activities, practices, or beliefs; or
if issuance of the permit may adversely affect the tribe's ability to
regulate, protect, provide services to, or otherwise govern their
tribal membership, lands and resources. We plan to work with tribes to
develop guidance for us to use when processing permits to manage and
resolve tribal concerns.
Comment: The proposal implies that permits will never be denied
because the number of anticipated applications (300) is the same as the
number of permits the Service anticipates issuing (300) (see discussion
under Regulatory Planning and Review at 72 FR 31148). Will the Service
not deny any permit applications?
Service response: Our intent is to use technical assistance at the
Field Office level to minimize potential take from proposed activities.
Service Field Office biologists will assist project proponents by
assessing whether take is likely to occur and how it can be avoided or
minimized. The Field Office should also inform applicants if permits
will not be available to them because they do not meet the issuance
criteria or because take thresholds for the species preclude further
issuance of permits. If this process works successfully, most people
who actually submit applications for permits will qualify for a permit.
Thus, the pre-application process will reduce take and the need for
permits, and serve as a filter through which qualifying applicants will
pass before submitting a completed application. For that reason, we
anticipate issuing permits for the majority of the complete
applications we receive.
We have increased our estimates of permit applications received and
permits issued to 1,168 applications received and 910 permits issued,
annually, under both new permit regulations.
Comment: The Service should consider ways to allow its Ecological
Services Field Office staff to handle bald eagle and golden eagle
permitting on behalf of the Migratory Birds Division. Field Office
biologists have experience and established relationships with project
proponents such as State departments of transportation. Also, having to
work with multiple offices will place a burden on applicants.
Permitting should be done in conjunction with any ESA consultation that
needs to be done as part of the proposed project.
Service response: We agree that technical assistance should be
streamlined where feasible to address the requirements necessary to
comply with more than one regulatory program. In accordance with
Service Mitigation Policy (501 FW 2), we will provide assistance to
project proponents in crafting conservation measures early in the
planning phases of projects so that all conservation mandates are
integrated into the project rather than introduced later in the
planning process. In many cases, other trust resources such as wetlands
or endangered and threatened
[[Page 46859]]
species may be affected in addition to eagles. Many requests for eagle-
take authorization will be associated with projects that have a Federal
nexus, including energy, transportation, water, and restoration
projects, and thus could be assessed in conjunction with the section 7
consultation process. The Service's Ecological Services Field Office
staff provide conservation planning assistance that uses a streamlined
approach to incorporate the requirements of multiple environmental
reviews into a single integrated process.
For example, as provided in our Habitat Conservation Planning
Handbook, we recommend ``integration of the National Environmental
Policy Act (NEPA) analysis with the other planning and environmental
review requirements'' so that ``all procedures run concurrently rather
than consecutively.'' Thus, for projects that involve other planning
and review requirements in addition to under the Eagle Act, the Field
Offices would integrate the assessment of the impacts of the eagle take
authorization into the NEPA process.
After projects are designed with the technical assistance provided
by our Field Offices, the project proponent will submit his or her
completed application to the Regional Migratory Bird Permit Office for
processing.
Comment: Permits should be expedited for recipients of technical
assistance letters. Recipients of technical assistance letters that
authorized activities inconsistent with the National Bald Eagle
Management Guidelines may be subject to Eagle Act prosecution.
Service response: Technical assistance letters did not provide any
authorization to take eagles. The only means available to gain
authorization to take eagles under the ESA was by means of the permit
issued under section 10 or an incidental take statement issued under
section 7. The role of technical assistance letters was to inform the
landowner or project proponent that the Service did not consider take
likely to occur. Generally we issued these letters after providing
technical assistance to the project proponent that included recommended
modifications to the planned activity to minimize the possibility of
take, and after the project proponent agreed to incorporate the
measures. Technical assistance letters do not authorize take should it
occur despite the recommended measures; only a permit or incidental
take statement could absolve a person of liability for take of eagles.
In situations where these letters were issued and the activity
proceeds, there is no Eagle Act violation unless an eagle is disturbed
or otherwise taken, regardless of whether the activity was consistent
with the National Bald Eagle Management Guidelines.
If take does occur, the Service is unlikely to prioritize
enforcement actions against a party that followed the Service's written
advice (in the form of the technical assistance letter) as to what
steps were necessary to avoid taking eagles. Furthermore, although take
of bald eagles under the Eagle Act can be authorized only by permit, it
is not our goal to encourage applications for permits to cover take of
eagles that is in fact very unlikely to occur. We believe our
conservation mission is better served by helping the public reduce the
likelihood of take, and to provide permits in appropriate circumstances
where take is likely (and cannot practicably be avoided).
Comment: The approval process should give ``substantial weight'' to
findings of consistency with a State management plan where such plans
are consistent with the Eagle Act's goal of preservation of the eagle
(examples: FL and MD Chesapeake Bay Critical Area Program).
Service response: We encourage consistency with State management
plans. However, the need for Eagle Act authorization is not based on
State land-use planning or habitat protection. Though we recognize the
vital importance of those tools in protecting eagles, the Eagle Act
directly protects eagles, eggs, and nests, rather than habitat. State
management plans such as the ones cited by the commenter are designed
to help guide development away from areas that may be more important to
eagles or other wildlife or natural resources. To the degree that a
take that is consistent with a State management plan may be more
compatible with the preservation of the bald eagle or the golden eagle,
we are more likely to authorize it. However, we will evaluate it under
the statutory mandate of the Eagle Act rather than a State management
plan. At the same time, we plan to establish protocols for coordination
with States and tribes during the permit review process. Some will
desire a greater degree of coordination than others, but we will
involve the States and tribes in developing processes for coordination
between agencies.
Comment: The Service needs to address how it will ensure compliance
with State regulations, particularly in light of the need to protect
local populations. Because most States do not have a regulatory process
to address much of this take, the Service should clearly state that its
Regional Offices will coordinate closely with and receive approval (if
requested) from any State where take would be authorized. Also, States
need to be kept apprised of the level of take currently authorized in
each management population. A nationwide database accessible to the
States or regular (e.g., bi-weekly) reports to the States may be
needed.
Service response: As discussed above, we will coordinate with
States and tribes as appropriate. The level of coordination may differ
from State to State (and tribe) depending to some degree on how closely
each wants to be involved. However, we do not currently envision
seeking approval from the State or tribe for each permit we issue. The
permit is a Federal authorization for an impact to eagles that would
otherwise be prohibited under Federal law. If the State or tribal law
also prohibits the action, the Federal permit does not insulate the
permittee from liability under such State and tribal laws. In addition
to our direct communications with States and tribes, we will try to
ensure that permit applicants understand the need to comply with State
and tribal laws and regulations.
We like the idea of a database we could make available to States
and tribes, and may pursue that option if we have the resources to do
so. Biweekly reports are probably not a realistic option due to limited
staffing and busy schedules, but are not out of the question. At a
minimum, we anticipate working with the Flyway Nongame Technical
Committees to keep them apprised of applications that are likely to be
of high interest, as well as pending and issued permits in their
States. We hope to establish a process comparable to the Flyway
structure, but comprised of representatives from tribal wildlife
agencies to allow us to share information with tribes in a coordinated
manner.
Comment: To ensure that State programs for eagle management are
considered before permits are issued, the Service should develop a
comprehensive compilation of State regulations for both species,
including how take is defined and regulated in each State, and it
should be published in the final EA.
Service response: We agree that a compilation of State and tribal
regulations could be useful and have included a simplified version of
such in Appendix B of the FEA. However, to do full justice to the
complexity and nuances of the different approaches taken by States and
tribes in protecting eagles would require considerably more
[[Page 46860]]
time, effort and resources than we have been able to supply for such an
effort at this time. There is enormous variation in how States and
tribes manage eagles. Some have no regulations that pertain to eagles
specifically, some are habitat management plans, some are permit
programs, but the prohibitions are not the same as Federal
prohibitions, while others have similar or even stricter prohibitions
but completely different issuance criteria for permitting. This high
degree of variability may be difficult to capture in a single, user-
friendly compilation. More effective, at least for the short term, will
be for each Service Regional Migratory Bird Office to familiarize
themselves with the laws and regulations of States and tribes within
their respective regions that apply to eagle management. We already
operate in this manner when issuing other types of permits. For
example, we will not issue a permit to possess a red-tailed hawk in
Hawaii, because Hawaii regulations do not allow raptors within the
State.
Comment: The government should give the tribes notice of all
pending and future applications for permits, particularly where eagles
may be affected on or near tribal lands.
Service response: As with States, some tribes will want closer
coordination with us than others. We plan to work with each tribe that
is interested to establish implementation protocols regarding the level
of coordination desired by the tribe.
Comment: The regulation needs to include stronger, more explicit
language regarding the need to be compliant with tribal law.
Service response: The requirement to be in compliance with other
laws and regulations is a standard condition of all Service Migratory
Bird permits and it is spelled out on the face of each permit. However,
to ensure this condition is given sufficient weight, we have added the
following new regulatory language to the permit conditions in both
Sec. 22.26 and Sec. 22.27: ``The authorization granted by permits
issued under this section is not valid unless you are in compliance
with all applicable Federal, tribal, State, and local laws and
regulations applicable to take of eagles.''
Comment: The Service should issue programmatic permits to the
Corps, other Federal agencies, and State agencies, allowing them to
provide take authority subject to their own programs where they are
consistent with the Eagle Act's requirements.
Service response: Our ability to delegate permit authority to
outside agencies is limited because the Eagle Act does not allow take
of bald eagles unless a permit is procured from the Secretary of the
Interior. However, within our statutory authority and to the degree
that is compatible with the preservation of eagles, we intend to
explore ways of streamlining the permit-issuance process, which might
include issuing a ``Master permit'' to other agencies, allowing them to
allocate take authorization where needed. One of many complicating
factors is that requests for permits may exceed what would be
compatible with eagle preservation in some areas, in which case the
issuance criteria governing prioritization to certain interests (safety
emergencies, Native American religious needs, and so forth) will come
into play. If permits are ``re-distributed'' by a third party, the
coordination needed to ensure the prioritization issuance criteria are
met could be rather challenging.
Programmatic Permits
Comment: The June 2007 proposed rule suggested that permits for
lethal take would only be available if the take was unavoidable and
best management practices (BMPs) are being implemented. The proposed
definition of ``unavoidable'' is flawed because it relies on industry-
accepted measures for avoiding take, but in most circumstances,
industry-accepted measures will not be all that can be done to avoid
take. Are the BMPs limited to those developed specifically for the
purpose of reducing eagle mortality? What would happen if different
BMPs proscribe conflicting actions? Clarification is needed as to what
constitutes lethal take; disturbance can sometimes result in eagle
mortalities.
Service response: Our reference to BMPs caused understandable
confusion because it was interpreted to mean any type of industry-
accepted BMPs for the conduct of the activity, regardless of whether
the BMPs were designed to reduce eagle mortalities or serve some
entirely unrelated function (such as human safety and hygiene). Our
intent was that the BMPs would have to be designed to reduce eagle
mortalities and other take of eagles. We have revised this part of the
rule. Rather than referencing BMPs, we are clarifying that we will work
with industries to develop what we are calling ``Advanced Conservation
Practices'' (ACPs), designed specifically to reduce take of eagles (and
sometimes other migratory birds). Implementation of ACPs will qualify
some entities for programmatic take permits, and can be used to
authorize ongoing unavoidable disturbance as well as unavoidable
mortalities. The ACPs will be developed by the applicant in
coordination with the Service and will be scientifically-supportable
measures representing the best-available techniques designed to reduce
disturbance and ongoing mortalities to a level where remaining take is
unavoidable.
Comment: Will lethal take permits be issued for industries that
have no such measures?
Service response: These regulations allow us to authorize take that
results in mortality as long as the issuance criteria for a standard
permit under this section are met, but would not allow us to issue a
permit for programmatic take without development and implementation of
ACPs.
Comment: Programmatic permits will increase mortalities by giving
the perpetrators a ``free pass.''
Service response: The design and intent of programmatic permits is
exactly the opposite of what the commenter suggests. Programmatic
permits will be issued and valid only where the applicant/permittee
implements rigorous conservation measures to reduce take to the point
where it is unavoidable.
Comment: The regulation should be clear that development of
programmatic permits will entail coordination with States where the
activity will occur.
Service response: We envision close coordination with States and
tribes when developing programmatic permits. We will address such in
forthcoming implementation guidance, which we intend to develop in
coordination with States and tribes, as well as the general public, via
a public comment period.
Comment: The Service should codify programmatic permit conditions
through the Federal Register process.
Service response: Programmatic permits are designed to reduce
mortalities and other take. In our view, a public comment period for
each programmatic permit would not provide an additional benefit to
eagles sufficient to justify the delay, regulatory burden, and the
substantial additional resources from our agency needed to navigate the
Federal Register process.
Comment: Programmatic permits are not acceptable unless the Service
retains the authority to decide what constitutes advanced conservation
practices, required mitigation, and how much take is unavoidable.
Service response: Although we will develop ACPs in coordination
with applicant industries and other entities, the Service will make the
final decision as to what measures constitute the ACPs that will serve
as required conditions of programmatic permits.
[[Page 46861]]
Comment: Current best management practices such as those developed
by the Avian Power Line Interaction Committee (APLIC) should be the
baseline, and more should not be required to get a permit.
Service response: The voluntary recommendations for avoiding avian
mortality developed by APLIC are much more comprehensive than any we
are aware of for other industries. However, most utilities that have
adopted them have done so in a relatively piecemeal manner, using some
recommendations in some areas, applying others in different places, and
very rarely implementing all the measures that could be used to reduce
eagle mortalities. Furthermore, there are practices over and above what
APLIC recommends that could further reduce take in some situations.
Programmatic permits are premised on the permittee implementing all
achievable measures to reduce take to the point where it is
unavoidable.
Comment: Programmatic permits must include provisions to safeguard
local populations (geographic limits) and mechanisms to restrict
permits when and where populations decline. Programmatic permits should
contain provisions subjecting them to revocation if eagle take
resulting from the activity is greater than anticipated.
Service response: We have added the following language to both
permit regulations: ``The Service may amend, suspend, or revoke
programmatic permits if new information indicates that revised
conditions, suspension, or revocation is necessary to safeguard local
or regional eagle populations.''
Comment: Programmatic permits should be issued for multi-year
periods to provide certainty.
Service response: Most programmatic permits will be issued for the
full five years that a permit can be valid under these regulations.
Furthermore, renewal of programmatic permits will have priority over
other permits for eagle take except to address safety emergencies and
meet the religious needs of tribes.
Comment: There should be no time limit for programmatic permits
because they are based on the premise that there is nothing more the
permittee can do to minimize take.
Service response: We expect that circumstances will often change
such that the original ACPs may no longer be considered the most
effective measures that could be adopted. There are likely to be
technological advances in some industries that would warrant adoption
of new, more effective conservation measures. Also, new information
regarding eagle biology, behavior, and responses to the permitted
activity may warrant re-examination of the effects of the permitted
activity and re-evaluation of the permit conditions.
Comment: Programmatic permittees should not be subject to enhanced
monitoring and reporting requirements; so long as the ACPs are being
carried out, no further information should be necessary for the Service
to know as far as population impacts are concerned.
Service response: See our response to the comment above. Also, the
monitoring we will require for programmatic permits will not be large-
scale population monitoring (such as the bald eagle post-delisting
monitoring plan). Rather, the monitoring required of programmatic
permittees will be focused on assessing how effective the ACPs actually
are, how much take is actually occurring, and overall eagle presence
and use of the project area. This type of information will be critical
for evaluating the impact of the permit program on eagles, as well as
for crafting future guidance for minimizing human impacts outside the
permitting program as necessary to maintain healthy eagle populations.
Comment: The final rule must provide for the situation where there
are no practicable ACPs that can mitigate ongoing, unavoidable take.
Service response: There are probably very few situations where
nothing can be done to reduce impacts to eagles. All sorts of factors
will be in play, such as timing and siting of the activity; timing and
siting of surrounding activities being conducted by different entities
that can come to the table; technological advances; additional staff;
and other factors. Creativity may be required in some cases to find
effective, achievable measures. However, in the rare situation where
all parties agree that nothing can be done to decrease the take from an
activity that is a legitimate interest in a particular locality,
compensatory mitigation can be used, and the measures required for
compensatory mitigation would need to result in a reduction of take at
a different location and/or from a separate activity. Those measures
would be the ACPs for the permit.
Comment: The final EA and regulation should make clear that the
permitted entity may implement measures that do not fully avoid or
minimize take where doing so is not within the authority of the entity.
Service response: Generally, if measures to reduce take are outside
the authority of the entity, then liability for the take rests
elsewhere too. Usually, whoever has the authority to affect the level
of take will be the entity responsible for the take. There will be some
situations where one industry takes eagles in part because of the
actions of another entity. Even then, however, the liability would
usually be shared. An example would be a railroad company with trains
that sometimes strike bald eagles that are attracted to an artificially
baited site nearby. The person feeding the eagles may be in violation
of the Eagle Act because of its prohibition on disturbance, since the
feeding interferes with normal feeding behaviors and results in injury
of eagles, which meets the definition. However, the railroad company is
also in violation, since its trains are actually killing eagles. In a
situation this straightforward, enforcing against the feeder would be
appropriate, and would reduce eagle mortality to a point where the only
remaining, effective measures to further reduce take would be the
railroad company's responsibility. If one entity's actions are not
themselves a violation but do contribute to a violation on the part of
another entity, we envision that a dialogue would be necessary between
the two actors to arrive at joint measure to reduce take. We may aid in
the process of dialogue if we have the resources, but the
responsibility to comply with the Eagle Act preceded the existence of
this permit program, and remains with the actors regardless of the
availability of these permits.
Comment: The process for developing industry metrics should be set
forth in the rule.
Service response: At this time, we have not established a process
for developing industry metrics. We plan to do so as part of crafting
implementation guidance. There will be an opportunity for public notice
and comment before any such process is formalized.
Comment: The final rule should make clear that industry standards
can be developed over time as various entities from different locations
(with different conditions) apply for permits, and it is not necessary
for the entire industry to be regulated with a national standard.
Service response: Yes, our intent mirrors what the commenter
suggests: we anticipate that ``an industry'' will often be a single
large utility, or one major railroad line, or one transportation
agency. Circumstances for that single entity may be quite different
than for a comparable entity in another part of the U.S., warranting
ACPs that might be ineffective or counterproductive if applied
elsewhere. ``An industry'' could also be an association of
participating smaller entities who will be permitted under the
standards developed by the association.
[[Page 46862]]
We agree that industry standards will evolve over time. After several
programmatic permits are in place for one type industry, we may, in
developing ACPs for another entity within the same industry, arrive at
superior measures that can be achieved. If appropriate, those can be
applied to the earlier programmatic permits when those permittees apply
for renewal.
Comment: Programmatic permits should not include an estimate of
mortality because: (1) it is too difficult to estimate; (2) even if the
ACPs are effective, increasing eagle populations can still result in
increased mortality, and (3) by definition, the ongoing operations will
improve mortality rates.
Service response: We think estimates of mortality are possible. The
Eagle Act requires that we determine that take is compatible with eagle
preservation prior to issuing a permit. Therefore, if data on effects
of an activity on eagles are so spotty that no estimate is possible, a
permit may not be appropriate. The only activities that will qualify
for programmatic permits are those that have been studied fairly
rigorously in order to develop comprehensive ACPs to reduce take to the
maximum level achievable. This level of research should typically yield
data sufficient to develop reasonable estimates of eagle mortality
before and after implementation of the ACPs.
Comment: Programmatic permits should not be issued for unlimited
take; otherwise there will be no incentive to pursue additional methods
to minimize take.
Service response: Programmatic permits will all include estimates
of take. To ensure that take does not continue to be authorized if it
exceeds the estimate and is incompatible with the eagle preservation,
we added a condition to each regulation that we can amend, suspend, or
revoke a programmatic permit if ``new information indicates that
revised conditions, suspension, or revocation is necessary to safeguard
local or regional eagle populations'' (Sec. 22.26(c)(7) and Sec.
22.27(b)(8)).
Comment: It should be possible to meet the requirement that an
applicant demonstrate reduced mortality before getting the permit via
scientifically-based predictions, rather than requiring field data;
many operations will not have good historical baseline with which to
compare data.
Service response: If an applicant for a programmatic permit cannot
establish a historical baseline, we may use estimates of take based on
predictions generated by sound scientific research. This applies to
development of ACPs, as well. It may not be feasible for an industry to
demonstrate the effectiveness of the ACPs or to fully implement them
prior to obtaining the permit. We envision that in many cases,
programmatic permits will be issued before all ACPs are completely
implemented; however, the validity of the permit is conditioned on
implementation of ACPs where the take occurs. In other words, if ACPs
are phased into a project, any take that occurs outside of the area
where the required ACPs have not been implemented, is not authorized by
the permit.
Comment: Programmatically authorizing eagle mortalities under the
Eagle Act is of limited value to the power industry because utilities
will still be liable under the Migratory Bird Treaty Act for incidental
take of other birds, since no permit is available for incidental take
under the MBTA.
Service response: No permit is currently available to authorize
incidental take under the MBTA. However, many of the ACPs that would
minimize eagle take will also reduce other avian mortalities with the
result that utilities that implement the ACPs under these Eagle Act
regulations will minimize take of other migratory birds in addition to
eagles, decreasing their liability under the MBTA. The Service focuses
its enforcement resources on investigating and prosecuting individuals
and companies that take migratory birds without regard for the
consequences of their actions and the law, especially when available
conservation measures have not been implemented.
Comment: It would be impossible to demonstrate that all avoidable
eagle mortality has been eliminated. Recommended practices cannot
completely eliminate the risk of mortality. Programmatic permits should
not be based on a standard of ``unavoidable''; rather, they should be
based on the practicability standard applied to individual permits.
Service response: We agree it would be impossible to demonstrate
that all avoidable eagle mortality has been eliminated. What we expect
instead is that the permittee fully implement the ACPs agreed to by the
Service as conditions of the permit, which are measures designed to
reduce take to the maximum degree achievable. The standard for
programmatic permits is higher than the practicability standard applied
to ``individual'' permits because programmatic permits authorize more
take on a larger scale than individual permits. Where an individual
permittee's required conservation measures will factor in the ``cost of
remedy comparative with proponent resources,'' a programmatic take
permit will be available only if the applicant can implement all
available, technically-achievable measures to reduce take. We believe
this higher standard is necessary to protect eagles from large-scale
and cumulatively significant take.
Comment: Will the development of programmatic permits be subject to
NEPA? A full environmental analysis must be done on a case-by-case
basis for programmatic permits.
Service response: Programmatic permits will each be subject to
NEPA.
Comment: The regulations should include the requirement that
industry standards required for programmatic permits must specifically
include facility-siting criteria.
Service response: The location of facilities often can have
significant impacts to eagles (e.g., wind farms), and some industries
may be able to reduce take substantially by selecting particular sites
over others. However, for other industries or entities seeking
programmatic permits, location of facilities may not be a primary
factor in reducing eagle take, and for that reason we have not included
language in the regulations to require facility siting criteria as
conditions of the permit. However, we intend to ensure that siting
criteria are emphasized in the implementation guidance that we will
develop for programmatic permits and adopted where applicable.
Definitions
Comment: Adding ``destroy'' to the ``take'' definition enlarges the
statutory definition of ``take,'' but the Service has no authority to
do so. The Service should say what the intended effect is of adding
``destroy'' to the definition of ``take.''
Service response: We have the authority to define ``take'' in a way
that includes more than just the specific examples Congress included in
the statutory definition. The Eagle Act, expressly states ``take
includes also pursue, shoot, shoot at, poison, wound, kill, capture,
trap, collect, molest or disturb.'' 16 U.S.C. 668c (emphasis added). If
Congress had intended to restrict the definition to the terms included
in the Act, it would have stated what take means, not what it also
includes. The intended effect of adding ``destroy'' is to clarify the
meaning of ``take'' in a way consistent with Congressional intent.
Legislative history demonstrates that the Eagle Act was intended to
protect nests from destruction, and we have previously
[[Page 46863]]
interpreted ``take'' to include ``destruction.'' However, as written,
the statutory definition of ``take'' does not include any term that
explicitly applies to nest destruction. Therefore, we are adding
``destroy'' to the regulatory definition to codify our long-standing
informal interpretation and to ensure that the public has adequate
notice of this interpretation.
Comment: By defining ``important eagle-use area,'' the Service has
gone beyond its statutory authority. The definition ``appears to cast a
wide regulatory net over areas that may be used by eagles'' by implying
that eagle take permits will be required for activities within these
areas. Also, who will determine what is ``essential'' to the viability
of the eagle? What if the important eagle-use area is on someone else's
property?
Service response: Defining a ``term of art'' is not the same as
regulating it. Sometimes, as in this case, a definition can be used in
order to refer to multiple objects by applying a single name to them as
a group, eliminating the need to reiterate each component of the group
whenever they are referenced.
In this case, because eagles can only be disturbed if their
breeding, feeding, or sheltering behaviors are substantially interfered
with, disturbance is likely to occur near important breeding, feeding,
and roosting areas. Therefore, in assessing whether disturbance is
likely to occur, it is logical to evaluate the relationship between the
potentially disturbing activity and the important breeding, feeding,
and sheltering areas. To more succinctly address this concept, we will
use the term ``important eagle use-area'' to refer to one or more of
the areas where eagles will potentially be disturbed by an activity.
Naming this term in no way extends our regulatory reach over these
areas, but rather provides a logical means to evaluate potential take.
It does not matter on whose property the important eagle-use area is
located; the important eagle-use area is not being regulated. What is
regulated are certain impacts of an activity on eagles.
Finally, what is ``essential'' to the viability of the site for
breeding, feeding, and sheltering eagles will depend on the various
factors that affect the degree to which eagles depend on the site.
Those best able to evaluate what is ``essential'' are likely to be
State and Federal biologists or other eagle experts. Many important
eagle-use areas are well-documented, and even where not specifically
documented, bald eagles are relatively well-surveyed, and much is known
about behaviors of eagles in particular localities.
Comment: Additionally, the terms within the phrase ``important
eagle-use area'' need to be defined (e.g., ``foraging area,''
``communal roost site''). ``Foraging area'' should be defined narrowly
to mean only those areas used during migration and wintering periods at
traditionally-used sites, perhaps as those ``containing traditionally-
used concentrations of preferred prey.''
Service response: We agree that defining ``foraging area'' and
``communal roost site'' would be helpful and we have done so, as
follows: ``foraging area'' means ``an area where eagles regularly feed
during one or more seasons''; ``communal roost site'' means ``an area
where eagles gather repeatedly in the course of a season and shelter
overnight and sometimes during the day in the event of inclement
weather.'' Not all foraging areas and communal roost sites are
important enough such that interfering with eagles at the site will
cause disturbance (resulting in injury or nest abandonment). Whether
eagles rely on a particular foraging area or communal roost site to
that degree will depend on a variety of circumstances--most obviously,
the availability of alternate sites for feeding or sheltering.
Comment: ``Important eagle-use areas'' should include migration
corridors.
Service response: We agree that take of eagles within migratory
corridors is a significant concern with regard to certain activities,
particularly wind-power facilities. However, we think the majority of
applicants for individual permits will not be engaging in activities
that are likely to take eagles in migration corridors, so have left
them out of the definition of ``important eagle-use areas.''
Comment: ``Nest'' should be defined more narrowly than was
proposed, to account for whether the structure was ever used, has been
abandoned, or is occupied by great-horned owls, etc. The proposed
definition is inconsistent with the five-year period specified in the
Guidelines after which a nest can be considered abandoned for purposes
of maintaining the buffers recommended in the Guidelines. The
definition should limit nests to those that are maintained or used
within twelve months.
Service response: The Guidelines do not define a nest as
``abandoned'' after five years. The Guidelines suggest that buffers may
no longer be warranted after five years of disuse because the
likelihood of disturbing eagles is decreased by that point. However,
under the Guidelines, the term ``nest abandonment'' has no relation to
that five-year period. The definition of ``nest abandonment'' in the
Guidelines does not necessarily entail permanent rejection of the nest.
In fact, the Guidelines specifically state that ``nest abandonment
occurs when adult eagles desert or stop attending a nest and do not
subsequently return and successfully raise young in that nest for the
duration of a breeding season.'' NBEMG, p. 17 (emphasis added).
We based the definition of ``eagle nest'' on the existing
regulatory definition of ``golden eagle nest'' (50 CFR 22.3), which has
no expiration date. As we note in the Guidelines, the probability of
disturbance occurring at a nest decreases the longer the nest goes
unused. However, it would be arbitrary to state a time limit after
which an eagle nest no longer meets the definition of a nest, given
that suitable nest sites are limited in many areas of the country and
are often re-occupied by eagles after many years of disuse. The
definition provided by this rule is consistent with the long-standing
definition of golden eagles nests and better satisfies the statute's
intent to protect eagles by protecting nests: until the structure is no
longer ``readily identifiable as a structure that is built, maintained,
or used by eagles for purposes of reproduction,'' it is protected as a
nest by the Eagle Act.
Comment: Clarification is requested as to whether the definition of
``nest'' includes alternate nests as well as the primary nest site.
Service response: To clarify that the definition includes alternate
nests, we revised it by changing ``a'' to ``any.'' The definition now
reads: ``any readily identifiable structure built, maintained, or used
by bald eagles or golden eagles for the purpose of reproduction.''
Comment: The rule should use the definition of ``eagle nest''
already in the Code of Federal Regulations.
Service response: In addition to applying to bald eagle nests as
well as golden eagle nests, the new definition differs from the old one
in two ways. First, the new definition substitutes ``used'' for
``occupied'' in order to avoid confusion with the term as used in
scientific literature where it has very specific connotations. Second,
the new definition replaces ``for propagation purposes'' with ``for
purposes of reproduction,'' because ``propagation'' sometimes refers to
human-induced breeding, whereas ``reproduction'' more plainly means
what is intended.
Comment: The definition of ``inactive nest'' is inconsistent with
the National Bald Eagle Management Guidelines, which use the terms
``active nest'' and ``alternate nest.''
Service response: The NBEMG use the following terminology: An
``active nest''
[[Page 46864]]
is a nest that is attended (built, maintained or used) by a pair of
bald eagles during a given breeding season, whether or not eggs are
laid. An ``alternate nest'' is a nest that is not used for breeding by
eagles during a given breeding season (NBEMG, pg. 17). The definition
of ``inactive nest'' in these regulations is not consistent with the
terminology applied in the Guidelines because the definitions serve
different purposes. The Guidelines distinguish between ``active'' and
``alternate nests'' in order to recommend different practices to avoid
disturbing eagles. An ``alternate nest'' as defined in the Guidelines
is not the same concept as an ``inactive nest'' in the regulations. As
defined in the Guidelines, an ``alternate nest'' can also be an
``active nest'' if it was attended during the breeding season, but not
used for breeding. This distinguishes it from a nest that is completely
unattended during the course of a breeding season (which had it been
defined, might have been called an ``inactive nest,'' although that
definition should also include any nest outside the breeding season).
The Guidelines recognize that disturbance can only occur if eagles at
some point notice something that agitates them (in addition to other
factors), and therefore an eagle could be disturbed at an attended nest
during the breeding season, thereby causing the attended nest to become
alternate. Therefore, recommendations for conducting activities during
the nesting season near nests that might go either way (might become
alternate nests or might be used for breeding purposes), when no nest
has yet been definitively selected by eagles in the territory, are as
strong as for nests that are selected for breeding purposes.
In contrast, the regulations distinguish between nests that are not
being used at present for breeding purposes (including the 10 days just
prior to an egg being laid) to ensure there is no associated take of
eggs or nestlings, and that eagles are not prevented from laying eggs
in a nest they have selected to breed in that season. An ``inactive
nest'' under the regulations would theoretically include some nests
deemed ``active'' under the Guidelines if it was attended by eagles
during that breeding season (at least 10 days prior), but not used for
breeding purposes. The aim is different: eagles at that nest could have
been disturbed during the earlier period when they attended the nest--
hence its designation as ``active'' under the Guidelines to minimize
that possibility. But if eagles are not using it for breeding purposes
as evidenced by lack of attendance for at least 10 days (whether within
or outside of the nesting season) its removal would have significantly
different impacts to eagles than removal of a nest that is occupied or
attended during the past 10 days for purposes of breeding, leading to
the designation in the regulations of such nests as ``inactive nests.''
Comment: The definition of ``inactive nest'' is inconsistent with
the existing definition.
Service response: The new definition is consistent with the old
definition, which, in any case, is being removed. The new definition
differs primarily in that it includes bald eagle nests as well as
golden eagle nests. The second difference is replacement of the phrase
``absence of any adult, egg, or dependent young at the nest for 10 days
before the nest is taken'' with ``continuing absence of any adult, egg,
or dependent young at the nest for 10 consecutive days immediately
prior to, and including, at present.'' The change serves dual purposes.
First, it eliminates the inadvertent implication in the old definition
that a nest cannot be inactive unless it has been taken. Second, it
clarifies that the period of when the nest is not attended has to be
current in order for the nest be considered inactive. The last
difference is the addition of the following sentence: ``An inactive
nest may become active again and remains protected under the Eagle
Act.'' This sentence is included to clarify that nests that become
inactive generally retain significant biological value to eagles, and
are subject to the same prohibitions against take as active nests. None
of these revisions are inconsistent with the old definition of
``inactive nest.''
Comment: Because an inactive nest may become active again and
remains protected under the Eagle Act, there should be no distinctions
in the level of protection afforded to active and inactive nests.
Designation of the nest as inactive for the purposes of this rule might
allow for easier granting of permits, even though such a nest might be
the only nest structure within a particular pair's territory.
Service response: The reason for distinguishing between active
nests and inactive nests and for defining the term ``inactive nest'' is
because the new nest-take-permit regulation, as well as existing
regulations for take of golden eagle nests for resource development and
recovery operations (50 CFR 22.25), regulate nests differently
depending on whether they are currently active or inactive. Under
existing Sec. 22.25, a permit may only be issued for inactive nests.
Under the regulations being finalized by this rulemaking, a permit can
be issued for an active nest only if the location of the nest poses an
immediate threat to safety. This definition is intended to be applied
only to questions of whether or not a nest may be taken with reduced
risk of associated take of birds. It is not intended to convey any
other biological status.
We will consider whether the nest is the only one in the territory.
If the take is not necessary to alleviate a safety emergency, before
issuing a permit we must find that ``suitable nesting and foraging
habitat is available to the area nesting population of eagles to
accommodate any eagles displaced by the nest removal'' (Sec.
22.27(e)(6)).
Comment: Is a nest considered ``abandoned'' under the Guidelines
still protected by the Eagle Act? The rule should clarify how the Eagle
Act applies in this case. Does it prohibit only removal of the
structure?
Service response: A nest that has been abandoned is not necessarily
permanently abandoned and remains protected under the Eagle Act. The
NBEM Guidelines refer to nest abandonment as follows: ``Nest
abandonment occurs when adult eagles desert or stop attending a nest
and do not subsequently return and successfully raise young in that
nest for the duration of a breeding season .... [N]est abandonment can
occur at any point between the time the eagles return to the nesting
site for the breeding season and the time when all progeny from the
breeding season have dispersed'' (NBEMG, p. 17).
By ``a nest considered abandoned under the Guidelines,'' the
commenter may have been referring to the Service's recommendations for
nests that have not been active for five years, in which case the
Guidelines suggest that the buffer distances the Service recommends
around nests may not need to be maintained at that point, since, in
general, the probability of disturbing eagles at nests that have not
been attended for five years is decreased. However, as the Guidelines
continue on to state, ``[t]he nest itself remains protected by other
provisions of the Eagle Act, however, and may not be destroyed''
(NBEMG, pg. 11).
Comment: ``Territory'' should be defined in the regulation.
Service response: This comment was made on the June 5, 2007,
proposed rule. The regulations governing nest removal (new Sec. 22.27)
use the term ``territory'' to refer to the area where a nest could
potentially be relocated. When we released the DEA and re-opened the
comment period on the rule,
[[Page 46865]]
we proposed to define ``territory'' as ``a defended area that contains,
or historically contained, one or more nests within the home range of a
mated pair of eagles, and where no more than one pair breeds at a
time.''
Comment: The last 10 words in the proposed definition of
``territory'' (``where no more than one pair breeds at a time'') should
be deleted, since this changes from year to year.
Service response: We deleted those last 10 words from the final
definition so that it reads: ``[t]erritory means a defended area that
contains, or historically contained, one or more nests within the home
range of a mated pair of eagles.
Comment: The definition of ``territory'' should not include the
word ``historically'' because that would encompass areas that eagles
have not occupied for many years. Perhaps it could be modified to read
``recently contained'' or ``within 10 years.''
Service response: We considered removing the word ``historically''
and adding some limit to the time frame in which a territory could be
considered a territory, but rejected the suggestion because a time
frame would be arbitrary, and the phrase ``recently contained'' does
not have any biological basis. Primarily, we opted to leave
``historically'' within the definition because the rule does not use
the word ``territory'' to restrict or authorize any action. The statute
itself does not protect or even reference territory. Its only use
within these regulations is to refer to the area that will be
considered when a nest can feasibly be relocated ``within the same
territory to provide a viable nesting option for eagles within that
territory, unless such relocation would create a similar threat to
safety'' (Sec. 22.27(a)(2)).
Comment: The definition of ``practicable'' is of central importance
and should be incorporated into the regulation.
Service response: We agree and have defined ``practicable'' in the
regulation as ``capable of being done after taking into consideration,
relative to the magnitude of the impacts to eagles: (1) the cost of
remedy comparative with proponent resources; (2) existing technology;
and (3) logistics in light of overall project purposes.'' The phrase
``relative to the magnitude of the impacts to eagles'' is important
because whether something is practicable is relative to the risk of not
doing it. If the adverse impact is small, it may be impracticable to
undertake enormously costly measures to avoid it, but it if the impact
will be extremely detrimental, increased measures may be deemed
reasonable and practicable. For example, it may not be practicable to
find a new site for a proposed large-scale wind turbine project in
order to avoid disturbing one nesting pair of eagles, whereas it may be
considered practicable to find an alternative if the site originally
proposed was within a major migration corridor for golden eagles and
would likely result in significant eagle mortalities.
Comment: The definition of ``practicable'' must not include any
consideration of the applicant's financial resources. (Some commenters
asserted such a consideration would result in too high a bar for large
projects with resources, while others were concerned it would result in
too low a bar because applicants will always claim not to have enough
resources to avoid or minimize impacts.)
Service response: We believe ``practicable'' inherently encompasses
consideration of what the proponent can muster and marshal towards
achieving a goal, whether it be money, time, ingenuity, or other
factors that contribute to the chances of being able to accomplish
something. Our inclusion of the phrase ``the cost of remedy comparative
with proponent resources'' was intended to confirm the integral role
such a consideration plays in determining what is practicable. For more
discussion on this issue, see our related responses to comments under
the heading Scope and Criteria of 22.26.
Comment: The rule should define ``public welfare'' as ``the well-
being of a community, state, region, or nation in matters of health,
safety, or order.''
Service response: When we released the DEA and re-opened the
comment period on the proposed rule, we proposed to base some aspects
of the new permit programs on the concept of ``necessary for the
public's welfare,'' which we proposed to define as ``needed to maintain
society's well-being in matters of health, safety, and order.''
We would have used the concept when demand for take exceeds what is
compatible with the preservation of the bald eagle or the golden eagle,
to ensure that take that is necessary for the public's welfare be
prioritized over other take for other purposes except for Native
American religious use and safety emergencies. The concept would also
have been central to issuance of eagle nest take permits under new
Sec. 22.27, expanding the reasons for which nests could be taken from
safety emergencies only, to situations where the take is necessary to
protect the public's welfare. However, as a number of commenters
observed, the definition was unacceptably broad and subjective,
particularly when used as a qualifying factor for nest removal. For
example, it could be argued to include any activity that increases a
locality's tax base, which could include any commercial activity, and
this was not our intent because we do not believe it accords with
Congressional intent underpinning the Eagle Act. Although the Eagle Act
does incorporate protection of private interests (e.g., protection of
livestock from depredating eagles), the language and legislative
history of the statute convey a greater degree of protection for eagle
nests than for individual eagles. For that reason, we replaced the
over-broad term ``the public's welfare'' with the narrower concept of
``public health and safety.'' This will encompass projects that are
genuinely necessary to protect people, while excluding projects that
may have only intangible benefits incommensurate with the negative
impact to eagles from removing a nest. The rule also provides that a
nest may be taken for any purpose as long as there is a net benefit to
eagles provided either by the activity itself or mitigation for the
activity. Had we more time to develop this rule, we might consider
adopting a permitting system wherein nests with lesser biological value
could be removed for a broader range of purposes without requiring the
permittee or activity to provide a net benefit to eagles. However, due
to the importance of finalizing this rulemaking expeditiously, the
analysis of the merits, complexities, and potential drawbacks of such
an approach, if undertaken, will have to be addressed in the
implementation guidance for this regulation or in a future rulemaking.
Comment: The definition of ``public welfare'' is too broad and
vague and greatly exceeds the purposes for which golden eagle nest take
now can be permitted. Clarification is needed as to what specific types
of activities will fall under ``public welfare.''
Service response: We agree that ``the public's welfare'' was too
vague a concept and very difficult to define. As discussed in the
preceding response, the final rule incorporates the narrower concept of
``public health and safety.''
Comment: ``Public welfare'' should not include transportation
projects, which should be treated like any construction or development.
Service response: We replaced the concept of ``the public's welfare
with ``public health and safety,'' to provide parameters on what can
qualify under the term. However, we intend that the concept of ``public
health and safety'' will sometimes, though not necessarily always,
apply to transportation projects.
[[Page 46866]]
For example, where a highway department proposes to modify a highway
interchange to reduce a disproportionately high incidence of traffic
accidents, if the modifications needed to improve safety cannot
practicably avoid an eagle nest, the project may qualify for a nest
removal permit, depending on whether the remaining permit issuance
criteria can be met.
Comment: The rule should define ``cumulative impacts'' as ``the
incremental environmental impact or effect of the proposed action,
together with impacts of past, present, and reasonably foreseeable
future actions. Cumulative effects can result from individually minor
but collectively significant actions taking place over a period of
time.''
Service response: We largely agree with this comment and have
adopted the first sentence suggested by the commenter as the definition
of ``cumulative effects'' within this rule. We omitted the second
sentence because we believe it unnecessarily narrowed the definition by
suggesting that cumulative impacts occur only over time, whereas
cumulative impacts also can refer to multiple impacts from a variety of
sources occurring concurrently with one another.
Comment: The rule should define ``indirect effects'' as ``effects
caused by the action and which are later in time or farther removed in
distance, but are still reasonably foreseeable. Indirect effects may
include growth-inducing effects and other effects related to induced
changes in the pattern of land use, population density or growth rate,
and related effects on air and water and other natural systems,
including ecosystems. Indirect impacts include those impacts resulting
from interrelated actions that are part of a larger action and depend
on the larger action for their justification and from interdependent
actions that have no independent utility apart from the proposed
activity.''
Service response: The definition suggested by the commenter is too
broad for the context of this regulation. Beyond what is appropriate
for us to consider as part of the NEPA analysis (where one is
required), we do not intend to base permit decisions on how growth
enabled by a proposed action would affect air, water, and other natural
ecosystems. The permit authorizes eagle take and the issuance criteria
will include consideration of reasonably foreseeable secondary effects
on eagles to ensure that authorized take is compatible with the
preservation of the bald eagle or the golden eagle. To the degree that
these secondary or ``indirect effects'' will foreseeably result in
additional impacts to eagles, we will consider those impacts. However,
impacts to air quality and water quality may require authorizations
from other agencies, and the responsibility to authorize or prohibit
such impacts is generally beyond our authority.
We agree with the commenter that a definition of secondary or
indirect effects may be beneficial. In the proposed rule, we used the
term ``secondary impacts'' to refer to impacts that result from an
activity after an initial action (e.g. building a road has an impact,
and the traffic that results is a secondary impact). We had considered
using the term ``indirect effects'' but felt it was unsatisfactory
because secondary impacts are often direct. They may occur somewhat
later in time, but they are the direct result of the first action and
may directly affect eagles (e.g., without the road having been built,
there would be no vehicular traffic). However, the term ``secondary
impacts'' has its own drawbacks; most notably it could be interpreted
to omit any impacts that were tertiary or beyond. For that reason, and
because ``indirect effects'' is used much more commonly, we are
replacing the term ``secondary impacts'' with ``indirect effects.''
When we re-opened the comment period on the rule in August 2008, we
proposed to define ``indirect effects'' as ``effects that are caused by
an action and either occur later in time or are physically manifested
beyond the immediate impacts of the action, but are still reasonably
foreseeable.'' We modified that proposed definition to clarify that the
proposed action can be a contributing factor to the effect and does not
have to be the sole cause. The final definition of ``indirect effects''
under this rule is: ``effects for which a proposed action is a cause,
and which may occur later in time and/or be physically manifested
beyond the initial impacts of the action, but are still reasonably
likely to occur.''
Comment: ``Indirect effects'' must include the requirement of a
reasonably close causal relationship between the environmental effect
and the alleged cause.
Service response: We agree with this comment, and will address this
issue in more depth in the implementation guidance for these
regulations.
Comment: The rule should require the Director to consider both
cumulative impacts and indirect effects before concluding compatibility
with preservation of the eagle.
Service response: The final rule requires the Service to consider
indirect effects when assessing the scope of the impact, and it
requires us to consider cumulative effects in determining whether the
take will be compatible with the preservation of the bald eagle or the
golden eagle.
Comment: ``Cumulative effects'' should not be considered because
each permit application will be assessed at the time it is processed.
Service response: This comment appears to misunderstand the
essential concept of cumulative effects, which no matter how defined,
must include consideration of more than one effect at a time. The need
to assess cumulative effects arises from the fact that combinations of
effects can create impacts that would not result from a single effect,
and which, in the case of eagles, could threaten their preservation.
The assessment of cumulative effects will also be critical to
protection of local eagle populations, since it will afford the Service
a view of where a concentration of impacts may be occurring, a view
that otherwise may not in every case be adequately examined during the
permit-issuance process.
Comment: The definition of ``cumulative effects'' overreaches and
is not supported by the Eagle Act. The regulations should adopt the
approach the Service is imposing on itself in revisions to ESA
interagency coordination regulations, that is: for the effect to be
reasonably certain to occur, the Service must have clear and
substantial information that the proposed action is an essential cause.
It would put both statutes on the same definitional footing and
eliminate confusion.
Service response: The revisions to ESA interagency coordination
regulations have been withdrawn. Regardless, they pertained to a
different statute, the ESA, and are not appropriate under the Eagle
Act, which has separate standards and a different mandate. Also, the
commenter appears to be merging the (now withdrawn) ESA section 7
definitions for ``cumulative effects'' and ``indirect effects.'' Under
both the retracted and the reinstated ESA regulations, ``cumulative
effects'' are limited to effects that are ``reasonably certain to
occur.'' Preservation of the bald eagle and the golden eagle may not be
achieved if the Service must carry the burden of proving an effect will
occur before it can be prevented, which would effectively be the case
if the only cumulative effects we could consider were those that are
reasonably certain to occur. The ESA regulatory definition of
``cumulative effects'' is not related to the concept of an ``essential
cause,'' as the
[[Page 46867]]
commenter mistakenly suggests. ``Essential cause'' was used under the
withdrawn ESA section 7 regulations to clarify the definition of
``indirect effects.'' For purposes of permitting under the Eagle Act,
we define ``cumulative effects'' as ``the incremental environmental
impact or effect of the proposed action, together with impacts of past,
present, and reasonably foreseeable future actions.''
Other
Comment: ``Absence of data'' should not be used to deny take
authorization for infrastructure projects that promote public safety
and welfare; rather the ``best available science'' should be used.
Service response: We certainly believe that the best available
science should be used. However, the Eagle Act requires the Secretary
of the Interior to determine that take will be compatible with the
preservation of eagles before he or she may authorize the take. To
permit take without sufficient data to show that it will not result in
a decline in the eagle population would violate the statutory mandate.
Comment: Will any activities be exempt from the take provisions of
the Eagle Act?
Service response: What is prohibited is ``take,'' not the
activities that result in take. In any case, we cannot exempt any take
of bald eagles from the permit requirement imposed by the Eagle Act.
Any such exemption would have to be provided by an amendment to the Act
by Congress.
Comment: In addressing the information-collection requirements of
the Paperwork Reduction Act, the Service has probably underestimated
the public reporting burden for completing an application. Forest
Service staff estimate it will take 3-6 person-days to complete the
application process.
Service Response: The reporting burden we provided was an estimate
of the average hourly burden we anticipate. For large-scale activities
such as the Forest Service management plans, the application process
will be much longer than the average. Nevertheless, we have increased
our estimate of the average hourly burden from 10 hours to 16 hours and
added an estimate of 40 hours for a programmatic take permit. Some
programmatic permits may take longer than that to develop; however,
once ``templates'' have been developed for particular industries or
activities, the process will be more streamlined for subsequent
programmatic permits for similar activities.
Comment: Far more than 300 permits per year will be needed,
partially due to the ``uncertainty caused by the definition of disturb
and the fact that the guidelines are not possible to follow in
general.'' The Service should revise its estimates to reflect the
higher demand. The lower estimate is arbitrary and capricious and
results in a cost estimate that is too low. The Service should provide
documentation, evidence, or rationale for the time estimates.
Service response: We want to be clear about the fact that we do not
have any reliable documentation or evidence to indicate how many people
will seek permits under this regulation, and we received none from the
public during the public comment period. These are new permit programs
that will apply to a newly-delisted species (bald eagles) and a species
for which no similar authorization was previously available (golden
eagles). Having said that, we have increased our estimate to 1,168
permit applications and 910 permits issued under both regulations.
We do not agree that the number of permits is larger than it
otherwise would be because of the ``uncertainty caused by the
definition of disturb.'' In the past, disturb was not defined at all,
and the new definition limits the pool of impacts that might otherwise
have been considered disturbance in the absence of a definition by
establishing a relatively high threshold that requires injury or nest
abandonment. We also disagree that the National Bald Eagle Management
Guidelines are not possible to follow in general. The Guidelines are
more flexible than any guidance that proceeded bald eagle delisting and
they recommend the smallest buffers that applied in any part of the
country prior to delisting. In Alaska, parts of which have the highest
density of bald eagles in the United States, no ESA permits to take
eagles were ever available because the bald eagle was never listed
under the ESA in Alaska. Since guidelines similar to our National
Guidelines (but less flexible) have proven to be possible to follow in
Alaska, we believe they can be workably applied in other parts of the
U.S. where eagles are present in lower densities.
Finally, as provided in these regulations, we will only issue
permits where the take cannot practicably be avoided, which will help
minimize the number of permits.
Comment: The Service should avoid heightening regulatory burdens
with regard to the golden eagle. Golden eagles cause damage to crops
and livestock and the location of their nests can restrict agricultural
activities on farms and ranches. They are only protected under the
Eagle Act in order to better protect juvenile bald eagles, which they
resemble. Golden eagles are plentiful and will tolerate a much higher
level of take than bald eagles. Therefore the permit-application
process and issuance criteria should be much less rigorous than for
bald eagles.
Service response: Rather than heightening regulatory restrictions,
this regulation provides a mechanism for authorizing impacts that
otherwise would be prohibited. The Eagle Act prohibits take of both
bald eagles and golden eagles. Accordingly, this regulation provides a
means to authorize take of golden eagles as well as bald eagles.
The need to protect juvenile bald eagles was the third of three
reasons Congress provided for extending Eagle Act protection to golden
eagles. In a joint resolution amending the Act, Congress stated
``Whereas the population of the golden eagle has declined at such an
alarming rate that it is now threatened with extinction; and Whereas
the golden eagle should be preserved because of its value to
agriculture in the control of rodents; and Whereas protection for the
golden eagle will afford greater protection for the bald eagle...''
(Bald and Golden Eagle Protection Act Amendments of 1962, Pub. L. No.
87-884, 76 Stat. 1246 (1962).
Contrary to the statements made by the commenter that golden eagles
are plentiful and will tolerate a higher level of take, our data
indicate the opposite. In contrast to bald eagles, golden eagle
populations do not appear to be increasing, and may be declining in
some parts of their range, possibly due to loss of habitat to support
their prey base. Overall, our data for golden eagles are not as
comprehensive as for bald eagles, and, under the Eagle Act, we cannot
issue take permits for golden eagles unless we have enough data to make
the determination that the take to be authorized will be compatible
with the preservation of golden eagles.
Golden eagles do sometimes prey on newborn livestock, and losses to
individual producers can occasionally be significant. However, the
economic benefit provided by golden eagles (as recognized by Congress)
consuming rabbits, rodents and other prey that otherwise would damage
crops likely far outweighs any economic losses to the agricultural
industry.
Finally, golden eagles have enormous cultural significance to many
Americans, particularly many Native Americans. Even without
consideration of the other reasons why golden eagles were protected by
Congress, the cultural and spiritual value accorded to golden eagles
justifies the level of protection
[[Page 46868]]
they share with bald eagles under the Eagle Act.
Comment: The economic analysis should not be limited to a pre-
versus post-delisting assessment. Rather, the Service should consider
the costs of the regulatory program in comparison to other recovered
species.
Service response: Comparing the costs of this permit program to the
costs of making a similar permit available for other recovered species
would yield little or no useful information because we have never
before created a new permit regulation to authorize take of a recently-
delisted species. Even had we done so, we doubt the comparison would be
very useful because, unlike any other species, bald eagles and golden
eagles are protected by the Eagle Act, and it is the unique protections
of that statute that fundamentally shape this regulation.
Comment: The Service, by stating that it only rarely expects to
issue permits for take associated with activities that conform to the
guidelines, appears to have foreclosed the option to seek and gain
assurance against prosecution under the Eagle Act through issuance of a
permit.
Service response: While we will continue to discourage applications
for take we believe is unlikely to occur, preferring to put our
agency's limited resources towards our mission of conserving wildlife,
we anticipate issuing some of these permits. The monitoring and
reporting that will be required of permittees will be of value, since
it will provide documentation we rarely would otherwise obtain: whether
the activities we thought would not disturb eagles do result in take.
Normally, permittee monitoring will be for activities that are likely
to take eagles. In addition, the Service may exercise enforcement
discretion by not referring such take for prosecution under the MBTA or
the Eagle Act if it occurs despite the low probability.
Comment: Sensitive nest data maintained by States will be made
public through the Freedom of Information Act (FOIA) process,
jeopardizing the safety of the nest.
Service response: Although we do not share this State commenter's
concern that eagle nests will be less protected if their location is
known, we respect the State's intentions, and to the degree we can
under law, we will honor its wishes to safeguard State nest data.
However, we cannot circumvent the requirements of the FOIA.
Comment: The tenure of depredation permits for hazing eagles should
not be increased because it could lead to abuse.
Service response: In addition to amending the eagle-depredation-
permit regulations under Sec. 22.23 to extend potential permit tenure
to up to five years, we included the following language: ``We may
amend, suspend, or revoke permits issued for a period of longer than 90
days if new information indicates that revised conditions, suspension,
or revocation is necessary to safeguard local or regional eagle
populations.''
Comment: Penalties for violations should be dramatically increased
and the compensation used to develop and implement management plans.
Service response: The Service does not establish and cannot effect
changes to penalties for violations of the Eagle Act and other statutes
we enforce. Congress establishes the penalties.
Comment: Due to the unique circumstances of Alaska, the Service
should develop streamlined procedures for ensuring that infrastructure
projects can comply with the Eagle Act.
Service response: We intend to establish working groups with
interested States and tribes to develop streamlined procedures to boost
the efficacy of this permit program and enhance compliance with the
Eagle Act.
Fees
Comment: The permit-processing fees must be higher to comply with
the Service's mandate that permit programs be ``self-sustaining to the
extent possible'' as required by 31 U.S.C. 9701(a). The program will
drain money that should be used for important conservation needs.
Service response: The commenter is correct that the permit
application processing fees associated with the new permits are not
high enough to allow the Service to recoup even half the cost of
issuing them. However, the fees are significantly higher than other
permit application processing fees we assess. The fees associated with
these regulations must be manageable to small business owners, home
owners, and other members of the public who may find a higher fee
prohibitive. We are establishing a higher application fee for
programmatic permits: $1,000, with a $500 amendment processing fee.
Comment: The proposed fees are too high, especially when
encouraging landowners in conservation efforts. The Service should
consider a designation of ``low-effect'' permits for which a lower
permit-application-processing fee would be charged. Also, the Service
should consider a lower fee for private landowners and small
businesses.
Service response: Permits are a ``service'' provided to specific
individuals and individual corporations within the public at large. Our
agency is directed by Congress and OMB to recoup the costs of permit
programs where feasible. The lower the permit processing fees, the
larger are the percentage of costs that must be shifted to taxpayers or
diverted from other Service responsibilities. Therefore, we do not
believe the $500 permit processing fee is unreasonable for applications
for individual permits.
While we are not adopting the commenter's suggestion that
application fees be less for ``low-effect'' permits, we are
establishing a higher fee for permits that will take longer to process;
the application-processing-fee for programmatic permits is $1,000.
While the typical programmatic permit will likely cost the Service more
than twice as much as the typical individual-take permit, we believe
the $1,000 application fee, rather than a higher fee more in line with
our processing costs, is justified because programmatic permittees will
be required to undertake rigorous and potentially costly conservation
measures.
Regarding the suggestion that fees be lower than $500 for private
landowners and small businesses, if we did that, we would recoup an
unacceptably small percentage of the costs of the permit program.
Federal, State, tribal and local government agencies will likely
constitute a large portion of applicants, but they are exempt from
permit application fees. It is inappropriate to require the American
taxpayer to bear all the costs of administering permits that primarily
benefit private individuals. We believe that the fees associated with
this rulemaking are a fair compromise between recouping all of our
costs and ensuring that no one is disqualified because he or she cannot
afford the permit application-processing fee.
Comment: The Service should not charge fees for tribal religious
purposes.
Service response: We do not charge permit application processing
fees for permits for tribal religious purposes. This regulation has no
effect on our policy regarding such fees.
Permits for Take of Eagle Nests
Comment: The final rule should clarify that a safety emergency
means a threat to life, not a threat to property.
Service response: The regulation includes the following definition
of ``safety emergency'': ``a situation that necessitates immediate
action to alleviate a threat of bodily harm to humans or eagles.''
However, the rule now provides that permits may be issued to remove
inactive nests where
[[Page 46869]]
necessary to ensure public health and safety, which includes situations
beyond immediate safety emergencies.
Comment: Nest removal permits should be available to avert severe
financial impacts.
Service response: The plain language and legislative history of the
Eagle Act prevent us from making permits available to remove eagle
nests to reduce financial impacts. Congress amended the Act in 1978 to
provide the Secretary of the Interior the ability to authorize take of
golden eagle nests that ``interfere with resource development or
recovery operations.'' Congress specifically did not include bald eagle
nests in this narrowly-focused amendment, nor did it provide us with
the ability to authorize golden eagle nest take for purposes as broad
as financial impacts, even severe ones. Therefore, we interpret our
authority to issue permits to take golden eagle nests as limited to
purposes no broader than the 1978 amendment, and for bald eagle nests,
even narrower. Take that is necessary to benefit eagles and protect
public health and safety is conservative and falls within the narrow
range of purposes for which we may issue eagle nest take permits for
both species.
Comment: Relocation of nests is not always realistic. The final
rule should not depend on that approach.
Service response: The regulation does not require that nests be
relocated. It provides that ``[w]here practicable, the nest should be
relocated, or a substitute nest provided, in a suitable site within the
same territory to provide a viable nesting option for eagles within
that territory, unless such relocation would create a similar threat to
safety.'' The rule also specifically provides that permits may be
issued under the regulation when nests cannot be relocated.
Comment: The rule should specifically state that the applicant must
take all reasonable steps to minimize impacts to eagles before a nest
is removed to ensure that all alternatives have been exhausted. Such
alternatives would include take of nests outside of the breeding
season. The applicant must be required to demonstrate that (1) the
removal is in the public interest; (2) there is a clear threat to eagle
or human safety; and (3) there is no alternative to removal that would
alleviate the emergency.
Service response: Nests that need to be removed because they pose a
safety hazard should be removed outside the breeding season. However,
removing nests outside of nesting season is not always possible. Thus,
the rule provides that, in a genuine safety emergency, active nests can
be removed if necessary to prevent imminent death or physical injury to
people or eagles. We have added provisions to the rule for programmatic
authorizations to remove nests for situations where the need for nest
removal will be ongoing (e.g., at some airports or for utilities that
maintain power lines). Programmatic nest-removal permits would be
available only when the applicant has developed comprehensive measures
to reduce take to the degree practicable.
In response to the commenter's specific suggestions, we consider
(1) redundant with (2) because any time there is a clear threat to
eagle or human safety, correcting the situation will be in the public
interest. The proposed rule already incorporated the substance of (2).
We have added the language suggested under (3) to the evaluation
criteria of the rule at Sec. 22.27(d).
Comment: Nest-removal permits for airports should be guaranteed.
Denial of such an application should not be an option.
Service response: A permit is never ``guaranteed.'' The statutory
mandate that the take be compatible with the preservation of the bald
eagle or the golden eagle must be met. Also, the permit will not be
issued if there is an alternative to nest removal that would alleviate
the threat to human and/or eagle safety or public welfare.
Comment: Airports are a good example of how safety issues are
invoked when they do not actually exist. Airports have done a poor job
of assessing risks before resorting to lethal take and habitat
destruction.
Service response: Although airports are already subject to FAA
regulations that require them to assess and mitigate for wildlife
hazards (14 CFR 139.337(b) and (c)), this permit should improve the
alternatives analysis that airports undertake because the programmatic
nest-take permit will require permittees to undertake comprehensive
measures to reduce take.
Comment: Emergency nest take will need to be authorized more than
five times a year, largely due to airport safety concerns.
Service response: We based our estimate on the number of emergency
situations that arose in the past few years. However, we have revised
our estimate for the number of nest take permits we anticipate issuing
from five permits a year to 48 permits per year. The higher estimate is
based on the somewhat broader parameters established in the final rule
for when nest take may be authorized, as well as our expectation that
bald eagle populations will continue to grow in most regions. On the
other hand, as airports develop comprehensive measures to reduce the
need for take permits, we will issue them programmatic authorizations,
lowering the total number of authorizations required.
Comment: The one-year tenure is not long enough to address the
hazing needed to prevent re-nesting at airports.
Service response: Hazing requires a permit only if it is likely to
result in disturbance as defined in regulation. Permits to haze eagles
under those circumstances will not be authorized under either of the
new permit categories, since Sec. 22.26 applies only to take that is
associated with, but not the purpose of the activity, whereas hazing is
intentional; and Sec. 22.27 authorizes nest take. Permits to haze
eagles are already issued under existing regulations at Sec. 22.23.
However, those regulations until now did not allow us to issue permits
for a period longer than 90 days. This rulemaking amends Sec. 22.23 to
allow an extended tenure of up to five years for hazing, only.
Comment: What if action is needed before a nest-removal permit can
be issued? The proposed rule preamble states that it may take 40 hours
to process such a permit. The time needs to be shorter and needs to be
codified in the rule, or else a statement is needed that if the Service
does not respond quickly enough, the take is authorized.
Service response: The rule estimates that it will take a total of
40 Service staff hours to process the nest-take permit, not 40
consecutive hours. More than one Service employee will need to
participate in the process. We cannot authorize bald eagle take without
issuing a permit. If a bona fide emergency response action must be
taken before the permit can be issued, the Service may exercise
enforcement discretion by not referring such take for prosecution under
the MBTA or the Eagle Act.
Comment: An on-site inspection by the Service should be required
before issuing a nest-take permit, for oversight.
Service response: We will not always be able to conduct an on-site
inspection before issuing the permit. If the situation is an emergency,
there may not be sufficient time for us to travel to the area. Second,
some areas (e.g., parts of Alaska) may be remote, making travel
expensive and time-consuming. Finally, due to limited staff resources,
we will not necessarily have personnel available to conduct a site
visit.
Comment: The rule should require the permittee to pay for any care
needed for eggs or nestlings.
[[Page 46870]]
Service response: Active nests may only be taken in cases of bona
fide safety emergencies. Therefore, care of viable eggs or nestlings
will only be necessary in some emergency situations. Because
emergencies are intrinsically unplanned, we do not consider it
justified to ask the permittee to pay for rehabilitative care that may
be necessitated by circumstances outside the permittee's control.
Comment: The rule should require mitigation payments for nest
removal. Otherwise, it creates a financial incentive to remove nests.
Service response: Nest removal permits will be available only
where: (1) necessary to alleviate a safety emergency; (2) necessary to
ensure public health and safety; (3) the nest is built on, and
obstructs the use of, a human-engineered structure; or (4) the project,
or mitigation for project, will provide a long-term benefit to eagles.
Under the first scenario, financial incentives are not germane. Under
the second and third scenarios, some mitigation may be required,
depending on the particular situation, including the availability of
other nests in the territory, whether the applicant could have taken
reasonable steps to prevent eagles from nesting on the structure, and
other factors. Under (4), the permittee would be required to provide
compensatory mitigation designed to provide a net benefit to eagles,
that is, to more than compensate for the biological impacts of the nest
removal. If, despite the cost of compensatory mitigation, the permittee
profits from removing the nest, the profit should not be an issue,
since the overall effect on eagles will be beneficial.
Comment: The rule should clarify that lethal take of eagles is not
an option under this permit.
Service response: We added the following language to the final
regulation: ``This permit does not authorize intentional, lethal take
of eagles.''
Comment: The rule should provide that the permit ``will'' (rather
than ``may'') authorize take of eagles, eggs, or nestlings associated
with the removed nest to protect the permittee from liability due to
incidental take.
Service response: The permit may or may not authorize take of
eagles associated with nest removal, and where take is authorized, the
method of take will be specified (e.g., collection and disposition of
live nestlings, disturbance of adults, etc). For inactive nest take,
authorization to take eagles in addition to the nest would usually not
be necessary or appropriate.
Comment: A programmatic permit is needed for operations that need
to remove nests regularly. For example, locations of all eagle nests on
transmission and distribution facilities may not be known, complicating
the permit process.
Service response: We agree with this comment and added provisions
to the final regulation for programmatic nest removal ``provided the
permittee complies with comprehensive measures that are developed in
coordination with the Service, designed to reduce take to the maximum
degree practicable.''
Comment: Will the new nest-take permit affect permits issued under
50 CFR 22.25 for take of golden eagle nests for resource-development-
and-recovery operations?
Service response: The new permit for nest removal is unlikely to
affect issuance of permits under Sec. 22.25. Although, it includes
permit issuance criteria that prioritize take for certain purposes over
others, the interests that are prioritized above resource-development-
and-recovery operations are compelling government interests: public
health and safety, and upholding our trust responsibilities towards
Native American tribes by ensuring that eagles continue to be available
for religious ceremonies. Based on past history, we anticipate only a
few requests to remove golden eagle nests for health and safety.
Although regulations have existed for decades that would enable us to
issue permits to tribes to take eagle nests for religious purposes, we
have had only one such request to date. As such, we think the new nest
take authorization under Sec. 22.27 will not affect how we administer
permits under Sec. 22.25.
Comment: The provision to allow take of golden eagle nests during
resource-recovery operations based on 10 days of nest inactivity is at
odds with long-term occupancy of nests demonstrated by the species, and
needs to be better evaluated.
Service response: The provision the commenter objects to is
codified in existing regulations that predate this rulemaking.
Nevertheless, we did re-examine the language during this rulemaking
process, which extended the definition of ``inactive nest'' to apply to
bald eagle nests in addition to golden eagle nests. As we explain in
our discussion above regarding the new definition of ``inactive nest,''
the distinction between active and inactive nests is for the purpose of
evaluating whether or not a nest may be taken with reduced risk of
associated take of birds. The nest is protected under the Eagle Act
whether active or inactive and may not be taken without a permit.
Comment: The rule should explicitly state that when evaluating
whether suitable habitat is available, constructed nest platforms are
not considered available suitable habitat. Otherwise, entire local
populations could be displaced to nest platforms if a highway was to go
through nesting habitat.
Service response: Suitable habitat might include constructed nest
platforms if they are located in areas with adequate foraging and
perching sites, and other features necessary for them to be viable
breeding sites.
Comment: We strongly suggest including a narrower and more detailed
definition of ``public's welfare,'' and a prioritization scheme where
the highest priority for nest removal permits is given to ``projects
that are determined to promote the greatest common societal and
environmental good.''
Service response: We replaced the term ``the public's welfare''
with the narrower concept of ``public health and safety.'' For more
discussion of this issue, see our response to a comment under Scope and
Criteria of 22.2.
Comment: The definition of ``the public's welfare'' may be
interpreted too narrowly for purposes of nest removal. The final rule
should explicitly provide that infrastructure projects ``to maintain or
expand domestic energy production and delivery fall within the scope of
projects necessary for public welfare.''
Service response: Under this final rule, permits to remove eagle
nests will be available only for safety emergencies, public health and
safety, nests located on human-engineered structures where the nest
interferes with the intended use of the structure, or for projects that
provide a net benefit to eagles. Thus, we can issue a permit to remove
a nest where necessary to protect any interest, including where
necessary ``to maintain or expand domestic energy production,'' as long
as the project proponent will implement conservation measures that
provide an overall benefit to eagles greater than the adverse effect of
nest removal (and the other permit issuance criteria are met).
Comment: A permit to take a nest for ``the public's welfare''
should be available whether the nest is active or inactive.
Service response: The Eagle Act requires the take to be necessary
to protect an interest. Taking an active nest should only be necessary
in a safety emergency; otherwise the take can be delayed until the nest
is inactive so there is less risk of a loss of productivity and no risk
of associated take of eggs or young.
[[Page 46871]]
Comment: Take of nests should not be allowed for anything other
than a safety emergency.
Service response: Limiting nest take to safety emergencies has the
potential to create unacceptable gridlock across the United States.
Many projects and activities that benefit society would be
disqualified, resulting in untenable degradation of social services and
infrastructure.
Comment: The Service should not issue nest-take permits where the
nest is the only structure in a territory or if its removal would
interfere with future reproduction in that territory.
Service response: Where the take is not necessary to alleviate a
safety emergency, we will consider whether the nest is the only one in
the territory. Unless a safety emergency necessitates the nest removal,
before issuing a permit under Sec. 22.27, we must find that ``suitable
nesting and foraging habitat is available to the area nesting
population of eagles to accommodate any eagles displaced by the nest
removal.''
Comment: The Service should not issue a programmatic nest permit to
the Federal Aviation Administration for nationwide airport coverage
because, with no biologists, it will err on the side of human safety
and remove nests that pose little threat.
Service response: We do not anticipate issuing a single,
nationally-applicable permit to the FAA. At this point, we envision
issuing permits to individual airports and county or regional airport
authorities.
Comment: The Service's estimate of only 30 programmatic nest take
permits per year is too low. That many would probably be needed in
Alaska alone.
Service response: We have increased our estimate of how many
programmatic permits we will issue - but only by 10, to 40 permits,
annually. Programmatic permits will be issued only where ACPs are
implemented to reduce take to a level that is unavoidable. The process
of developing most programmatic permits will be more time-consuming
than for most individual permits, at least until we have developed
``templates'' applicable to other permits for the same or similar
activities. Thus, we think it unlikely we will be issuing more than 40
such permits per year nationwide. The permits we are creating through
this rulemaking are for take that is necessary, not take that is merely
convenient or more profitable than avoiding the take.
Comment: The rule should include a separate nest-take category for
situations where eagles nest on a pre-existing man-made structure.
Service response: We thought this idea had merit and added language
to the final rule that provides for removal of nests that are built on
human-engineered structures, creating ``a functional hazard that
renders the structure inoperable for its intended use.''
Rulemaking Process
Comment: Tribal consultation should have been sought prior to
proposing this regulation. How can the government claim to have
considered cultural values without proper government-to-government
consultation with the tribes?
Service response: We sent each federally-recognized tribe a letter
soliciting input on this action when the proposed rule was published in
the Federal Register. Even though the comment period was open for 90
days, we received only three letters from tribes and no requests to
extend the comment period. The Service sent a second letter to the
tribes when the DEA was released, and several Service Regional offices
have hosted or attended meetings in order to clarify the Service's
actions and hear tribal concerns. However, due to the need to
promulgate permit regulations in an expeditious manner, there was not
enough time to fully engage any tribes in formal government-to-
government consultation during the rule-making period. We do intend to
do so with interested tribes during the next phase: development of
implementation guidance.
As part of developing the implementation guidance, we intend to
work with tribes to establish protocols regarding the types of permit
applications and potential actions on which individual tribes would
like the Service to consult with them. We will also consider cultural
values, including Native American cultural values as part of the NHPA's
section 106 review. (See our discussion in the Required Determinations
section below under National Historic Preservation Act.)
Comment: The comment period was too short for the public to provide
meaningful input.
Service response: The initial comment period for the rule was 90
days, which is standard for a significant rule. We also re-opened the
comment period on the rule for another 30 days when we released the DEA
in August 2008. Therefore, the total length of time the rule was open
for public comment (120 days) was longer than for most rules.
Comment: States should have been given a greater role in developing
the regulation, particularly since it will require investment of
significant State resources. The Service should delay completion of the
regulations and form a work group with the State fish and wildlife
agencies to develop more administratively- and economically-feasible
regulations.
Service response: We did not delay completion of the regulations
because there is a genuine, substantial, and impending public need for
these permits. Without them, many activities, including critical
infrastructure projects, that might disturb or otherwise take eagles
have no means of gaining authorization for the take, and are either on
hold or compelled to violate the law. Due to the need to promulgate the
regulations without further delay, we were unable to coordinate closely
with States and tribes during the rule-development phase. However, we
plan to establish work groups with State and tribal representation to
assist with development of implementation guidance for the regulations.
The implementation guidance will address numerous important facets
regarding administration of the permit program that have yet to be
worked out, including how the Service will coordinate with States and
tribes during the permit-application-and-processing phase.
Comment: The Service should delay implementation until it gets an
adequate monitoring program in place for both species throughout the
U.S. If the Service will not delay completion or implementation of the
regulations, they should be enacted on a short-term basis, allowing the
Service to work cooperatively with the States to develop a more
comprehensive, data-driven permitting system.
Service response: If, after implementation, the regulations need
revision, we can amend them. There is no need to finalize them with a
built-in expiration clause. We agree that more data, monitoring, and
surveys would be useful, and we plan to pursue possibilities for
additional funding and partnerships to bolster the scientific data
currently available for both eagle species.
Comment: The Service should publish the proposed rule with the
changes noted in the DEA. Without being able to review the explicit
regulatory changes in context, the public cannot adequately evaluate
the proposal.
Service response: We believe the August 2008 Notice of Availability
for the DEA and the DEA itself effectively described the changes that
we were proposing from the rule we proposed in June 2007. Republishing
a proposed rule incorporating the changes noted in the DEA would have
triggered a number of
[[Page 46872]]
regulatory requirements that would have been onerous and--more
important--time consuming. Due to the need to finalize the regulations
expeditiously, we believe that the approach we took was in the best
interests of the public.
Endangered Species Act Consideration
Consultation pursuant to section 7(a)(2) of the Endangered Species
Act is not required for these regulations. The regulations do not
directly or indirectly authorize any activities that would result in
adverse effects to listed species, so they will not affect any listed
species or critical habitat. We will conduct section 7 consultations on
the issuance of any future permits where the authorized activities may
affect listed species or critical habitat.
Required Determinations
Energy Supply, Distribution or Use (E.O. 13211). On May 18, 2001,
the President issued Executive Order 13211 addressing regulations that
affect energy supply, distribution, and use. E.O. 13211 requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. This rule is not expected to significantly affect
energy supplies, distribution, and use, except that it provides means
to authorize otherwise-prohibited impacts to eagles that may be
necessary in the course of supplying and distributing some energy in
particular localities. This action is not a significant energy action,
and no Statement of Energy Effects is required.
Regulatory Planning and Review (Executive Order 12866). The Office
of Management and Budget (OMB) has determined that this rule is
significant and has reviewed this rule under Executive Order 12866
(E.O. 12866). OMB bases its determination upon the following four
criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act. Under the Regulatory Flexibility Act
(as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever a Federal agency publishes a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions) (5
U.S.C. 601 et seq.). However, no regulatory flexibility analysis is
required if the head of an agency certifies that the rule would not
have a significant economic impact on a substantial number of small
entities. Thus, for a regulatory flexibility analysis to be required,
impacts must exceed a threshold for ``significant economic impact'' and
a threshold for a ``substantial number of small entities.'' See 5
U.S.C. 605(b). SBREFA amended the Regulatory Flexibility Act to require
Federal agencies to provide a statement of the factual basis for
certifying that a rule would not have a significant economic impact on
a substantial number of small entities.
This rule may benefit a variety of small businesses including real
estate developers and brokers (NAIC 531); construction companies (NAIC
23); forestry and logging (NAIC 113), farming (NAIC 111), and ranching
operations (NAIC 112); tourism companies (NAIC 713); utility companies
(NAIC 221); and others. Across the United States, there are 255,871
small real estate companies; 617,737 small construction companies;
9,596 small forestry and logging companies; 46,730 small tourism
companies; and 10,173 small utility companies. We anticipate receiving
about 1,140 Sec. 22.26 take permit applications nationwide annually,
and about 90 Sec. 22.27 nest take applications (including 20
applications for programmatic permits under each of the two
regulations).
We anticipate issuing approximately 830 standard Sec. 22.26 take
authorizations across the United States, 40 standard nest-take permits,
and 40 programmatic permits, per year. Based on past permit
authorizations under the ESA, we anticipate approximately one-third of
new permit applicants would be small businesses. If 303 permittees are
small businesses within 4-6 different industries across the United
States, the demand would not represent a substantial number of small
entities in individual industries. The economic impact to individual
small businesses is dependent on the type of activity in which each
business engages. As noted in the economic analysis in the preamble
above, permit applicants will incur some costs assembling the necessary
information for the permit application, permit fees, and the costs of
monitoring and reporting associated with the permit. For example,
applicants will have to pay $500 for processing a permit application
under Sec. 22.26 and Sec. 22.27, and $150 for permit amendments. In
addition, particularly for larger projects, there may be consultant
and/or attorney's fees ranging from a few hundred to thousands of
dollars. However, if the permit applicant is successful, the economic
benefits to the small entity should outweigh the economic costs of
obtaining the permit. For some individual businesses, the benefit may
be substantial.
The Department of the Interior certifies that this rule will not
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Small Business Regulatory Enforcement Fairness Act (SBREFA). This
rule is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. This rule:
a. Will not have an annual effect on the economy of $100 million or
more. The principal economic effect of the rule will be to allow the
general public, small businesses, industry and government agencies to
obtain take permits that allow activities on their property where
avoiding impacts to eagles is not practicable. We are anticipating
that, due to increasing bald eagle populations, there will be an
increase in the number of applications for permits under this rule
compared to the number of people who sought authorization to take
eagles under the ESA, even though not all activities that require ESA
authorization would require Eagle Act authorization. All types of small
entities that benefited from the issuance of permits under the ESA will
continue to benefit from permits issued under this rule.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. Eagle take permits will not
significantly affect costs or prices in any sector of the economy. This
rule will provide a remedy that would allow various members of the
general public to pursue otherwise lawful uses of their property where
the activity will impact eagles. For example, a person wishing to build
on his property in the vicinity of a bald eagle nest may apply under
this proposed rule for a permit to disturb eagles, whereas the option
would not be possible after delisting without the promulgation of these
regulations. Another example would be a utility that wishes to
[[Page 46873]]
minimize eagle mortalities and liability to itself and so implements
conservation measures to reduce take to the level where any remaining
take is unavoidable and unauthorized. Whereas take of eagles is already
prohibited by the Eagle Act, the permit represents an opportunity for
the public to comply with the law, but it is not mandatory. These
regulations make a permit available to authorize take that is currently
prohibited under statute, enabling small businesses, industries,
government agencies, corporations, and private individuals to conduct
legitimate activities in accordance with the law.
c. Does not have a significant adverse effect on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. This
regulation establishes a mechanism to permit effects from activities
within the United States that would otherwise be prohibited by law.
Therefore, the effect on competition between U.S. and foreign-based
enterprises will be to benefit U.S. enterprises. There is no
anticipated negative economic effect to small businesses resulting from
this rule.
Unfunded Mandates Reform Act. A statement containing the
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
et seq.) is not required.
a. This rule is not a significant regulatory action under the
Unfunded Mandates Reform Act. A Small Government Agency Plan is not
required. The permit regulations that are established through this
rulemaking will not require actions on the part of small governments.
b. This rule is not a significant regulatory action under the
Unfunded Mandates Reform Act. This rule does not impose an unfunded
mandate on State, local, or tribal governments or the private sector of
more than $100 million per year.
Takings (E.O. 12630). In accordance with Executive Order 12630, the
rule does not have significant takings implications. This rule could
affect private property by providing owners the opportunity to apply
for a permit to authorize take that would otherwise violate the Eagle
Act. A takings implication assessment is not required.
Federalism (E.O. 13132). In accordance with Executive Order 13132,
the rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment. This rule will not
interfere with the States ability to manage themselves or their funds.
Changes in the regulations governing the take of eagles should not
result in significant economic impacts because this rule would allow
for the continuation of a current activity (take of eagles) albeit
under a different statute (shifting from the ESA to the Eagle Act). The
new regulatory process provides States the opportunity to cooperate in
management of bald eagle permits and eases the process for permit
applications. A Federalism Assessment is not required.
Civil Justice Reform (E.O. 12988). In accordance with Executive
Order 12988, the Office of the Solicitor has determined that this rule
does not unduly burden the judicial system and meets the requirements
of sections 3(a) and 3(b)(2) of the Order.
Government-to-Government Relationship with Tribes. In accordance
with Executive Order 13175, Consultation and Coordination with Tribal
Governments (65 FR 67249, Nov. 9, 2000); the President's memorandum of
April 29, 1994, ``Government-to-Government Relations with Native
American Tribal Governments'' (59 FR 22951); and 512 DM 2, we have
evaluated potential effects on Federally-recognized Indian tribes and
have determined that there may be potential effects. Although this rule
neither interferes with tribes' ability to manage themselves or their
funds nor affects the operations of the eagle-distribution system of
the National Eagle Repository, it does implement a new eagle-take
permit policy, and some tribes have asserted that take of eagles has
significant cultural and spiritual effects on them.
To meet our trust responsibility to tribes with regard to the
unique traditional religious and cultural significance of eagles to
Native American communities, we intend to minimize impacts by
consulting with interested tribes prior to implementation of this rule,
and on a case-by-case basis when issuance of individual permits may
affect particular tribes. In addition, this rule provides that take of
eagles for Native American religious purposes be given priority over
take for any other purpose except safety emergencies, which should help
ensure that Native American religious needs are not affected by this
rule.
When we initially proposed this rule in June 2007, we contacted
each recognized tribe with a letter describing this action and
soliciting input from the tribe. We received only three comments from
tribes on the proposal. We sent a second letter to the tribes when we
released the DEA and re-opened the comment period on the proposed rule.
In response to our draft EA, we heard from five tribes, three tribal
members, and three coalitions or confederations of tribes. The majority
of these tribes either asked the Service to extend the comment period
on the DEA and re-open rule, or asked the Service to delay finalizing
the rulemaking until tribes were given the opportunity to consult with
the Service on a government-to-government basis. We denied those
requests because of the myriad of other interests that would go unmet
if we did not complete and begin implementing the rule in an
expeditious manner. However, as noted above, we will engage interested
tribes in consultation as we develop the implementation guidance for
these regulations.
National Historic Preservation Act. Section 106 of the National
Historic Preservation Act of 1966, as amended (NHPA) (16 U.S.C 470 et
seq.) requires Federal agencies to take into account the effects of
their undertakings on historic properties. Federal agencies accomplish
this by following the Section 106 regulations, ``Protection of Historic
Properties'' (36 CFR part 800). The Section 106 regulations set forth a
process by which agencies: (1) evaluate the effects of any Federal
undertaking on historic properties (properties included in, or eligible
for inclusion in, the National Register of Historic Places (National
Register)); (2) consult with State Historic Preservation Officers,
Tribal Historic Preservation Officers, and other appropriate consulting
parties regarding the identification and evaluation of historic
properties, assessment of effects on historic properties, and the
resolution of adverse effects; and (3) consult with appropriate
American Indian tribes and Native Hawaiian organizations to determine
whether they have concerns about historic properties of religious and
cultural significance in areas of these Federal undertakings.
Some tribes and tribal members may consider eagle nests and other
areas where eagles are present to be sacred sites provided for in the
American Indian Religious Freedom Act of 1978 (42 U.S.C. 1996) (see
below). Such sites may also be considered properties of traditional
religious and cultural importance to an Indian tribe (commonly referred
to as Traditional Cultural Properties or TCPs), and as potential
historic properties of religious and cultural importance under the
NHPA. Such sites are not limited to currently recognized Indian lands,
and they occur across the entire aboriginal settlement area. TCPs may
be areas where eagles nest and have nested within living memory. Thus,
a landform or landscape known for eagle
[[Page 46874]]
habitation--a ridgeline, canyon, lakeshore, river valley, mesa,
mountain, etc.--may be considered by tribes as suitable for TCP
designation.
According to the Section 106 regulations, a property is considered
an historic property if it is listed on, or eligible for (emphasis
added) listing on, the National Register. Therefore, a lack of formal
listing does not lessen the need to consider a property; instead, it
emphasizes the need for close coordination with appropriate parties at
the project planning stage.
Because an eagle or eagle nest can be considered a contributing
feature or element of a TCP or sacred site, issuance of the proposed
permits for eagles could constitute an undertaking requiring compliance
with Section 106 of the NHPA, and may also require government-to-
government consultation with tribes. The Service would comply with
Section 106 on a case-by-case basis for permits that have the potential
to have effects on historic properties. Where issuance of a permit has
the potential to affect a TCP, the Service Regional Migratory Bird
Permit Office will coordinate with the Service Regional Historic
Preservation Officer to ensure necessary NHPA consultations take place
with the appropriate parties. We may deny permits or attach additional
conditions if necessary to avoid, minimize, or mitigate adverse effects
to historic properties. Nothing in these regulations limits the Service
from including additional conditions on individual permits for this
purpose.
If it is determined to be more efficient for all parties, the
Service may consult with appropriate stakeholders to develop State or
regional agreements that would govern and resolve compliance with the
NHPA for the issuance of permits in specific States or regions.
American Indian Religious Freedom Act. The American Indian
Religious Freedom Act (AIRFA) (42 U.S.C. 1996) sets forth Federal
policy to protect and preserve the inherent right of American Indians
to express and exercise their traditional religions, including but not
limited to, access to sites, use and possession of sacred objects, and
the freedom to worship through ceremonials and traditional rites. Given
the special trust relationship between the Federal Government and
federally-recognized Indian tribes, the accommodation of tribal
religious practices is in furtherance of the duty of the Federal
Government to promote tribal self-determination. AIRFA would be
construed in conjunction with the Service's trust responsibility to
federally-recognized tribes. The Service has incorporated these
principles into this regulation. To address the possibility that demand
exceeds our scientifically-based take thresholds, the regulation
contains permit-issuance criteria to ensure that requests by Native
Americans to take eagles from the wild, where the take is necessary to
meet the religious purposes of the tribe, are given first priority over
all other take except, as necessary, to alleviate safety emergencies.
Paperwork Reduction Act. This rule contains new information
collection requirements that require approval by the Office of
Management and Budget. The OMB has approved these revisions under OMB
Control Number 1018-0136, which expires on August 31, 2012. We have
addressed all comments received on the proposed rule above in this
preamble.
Title: Eagle Take Permits, 50 CFR 22.26 and 22.27.
Service Form Number(s): 3-200-71, 3-200-72, 3-202-15, and 3-202-16.
Affected Public: Individuals/households, businesses, and State,
local, and tribal governments.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion.
Total Annual Nonhour Cost Burden: $261,250 associated with
application or processing fees.
----------------------------------------------------------------------------------------------------------------
ANNUAL NO. OF TOTAL
ACTIVITY/REQUIREMENT RESPONDENTS (non- TOTAL ANNUAL COMPLETION TIME PER ANNUAL
Federal) RESPONSES RESPONSE BURDEN HRS
----------------------------------------------------------------------------------------------------------------
FWS Form 3-200-71 - permit application 746 746 16 hrs 11,936
(individual take)
----------------------------------------------------------------------------------------------------------------
FWS Form 3-202-15 - annual report & 1,119 1,119 30 hrs 33,570
monitoring under Sec. 22.26
----------------------------------------------------------------------------------------------------------------
FWS Form 3-200-72 - permit application 46 46 16 hrs 736
----------------------------------------------------------------------------------------------------------------
FWS Form 3-202-16 monitoring & 40 40 16 hrs 640
reporting for Sec. 22.27 permit
----------------------------------------------------------------------------------------------------------------
FWS Forms 3-200-71 and 72 - permit 26 26 40 hrs 1,040
application (programmatic take)
----------------------------------------------------------------------------------------------------------------
Amendments to standard permits 40 40 6 hrs 240
----------------------------------------------------------------------------------------------------------------
Amendments to programmatic permits 10 10 20 hrs 200
----------------------------------------------------------------------------------------------------------------
Totals 2,027 2,027 48,362
----------------------------------------------------------------------------------------------------------------
We will use the information that we collect on permit applications
to determine the eligibility of applicants for permits requested in
accordance with the Eagle Act. Eagle permit regulations (50 CFR 22) and
general permit regulations (50 CFR 13) stipulate general and specific
requirements that when met allow us to issue permits to authorize
activities that are otherwise prohibited.
All Service permit applications are in the 3-200 series of forms,
each tailored to a specific activity based on the information
requirements for specific types of permits. The application forms for
other permits authorized under the Eagle Act are covered by OMB Control
Number 1018-0022. After publication of this final rule, we will
immediately incorporate the new information burdens for 22.26 and 22.27
into OMB Control Number 1018-0022.
We will use two additional forms as (1) the application for a Sec.
22.26 take permit (FWS Form 3-200-71), and (2) the application for take
of eagle nests under Sec. 22.27 (FWS Form 3-200-72). We will use new
FWS Form 3-202-15 as the annual report form for the Sec. 22.26 eagle
take permit, and new FWS Form 3-202-16 as the report form for the Sec.
22.27 nest take permit. The information collected for eagle permits is
part of a system of
[[Page 46875]]
records covered by the Privacy Act (5 U.S.C. 552(a)).
We estimate receiving 1,120 permit applications for individual
takes under Sec. 22.26; 70 applications for nest take permits under
Sec. 22.27; and 40 applications for programmatic permits under Sec.
22.26 and Sec. 22.27, annually. We expect about one third may be
Federal Government agencies. Therefore, we estimate that approximately
746 non-Federal applicants will apply for eagle-take permits, 46 non-
Federal applicants will submit applications for eagle nest take
permits, and 26 non-Federal applicants will apply for programmatic
permits. We estimate it will take an average of 16 hours to complete an
application for an individual take permit. Programmatic permit
applications will require more time, particularly at the outset as the
first ones are developed for a given industry. As programmatic permits
measures are developed for particular industries, the time it will take
to apply for these permits will decrease. We estimate that the average
programmatic take permit application will require 40 hours to prepare,
although early programmatic permits that will serve as the
``prototypes'' for subsequent applications will require more time.
An agency may not conduct or sponsor and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The public may comment, at any
time, on the accuracy of the information collection burden in this rule
and may submit any comments to the Information Collection Clearance
Officer, Fish and Wildlife Service, Department of the Interior, 1849 C
Street, NW., (Mailstop 222-ARLSQ), Washington, D.C. 20240.
National Environmental Policy Act. The Service has prepared an
environmental assessment of this action, pursuant to the National
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.).
Copies of the final environmental assessment are available on our
website at http://www.fws.gov/migratorybirds/baldeagle.htm
Literature Cited
Good, R. E., R. M. Nielson, H. H. Sawyer, and L. L. McDonald. 2004.
Population level survey of golden eagles (Aquila chrysaetos) in the
Western United States. Final Report submitted to the Division of
Migratory Bird Management, U.S. Fish and Wildlife Service. Western
Ecosystems Technology, Incorporated; Cheyenne, Wyoming.
Good, R. E., R. M. Nielson, L. L. McDonald, and D. Tidhar. 2007.
Results of the 2006 survey of golden eagles (Aquila chrysaetos) in the
Western United States. Report submitted to the Division of Migratory
Bird Management, U.S. Fish and Wildlife Service. Western Ecosystems
Technology, Incorporated; Cheyenne, Wyoming.
Kirk, D. A. and C. Hyslop. 1998. Population status and recent
trends in Canadian Raptors: A review. Biological Conservation 83:91-
118.
Kochert, M. N., K. Steenhof, C. L. McIntyre, and E. H. Craig. 2002.
Golden Eagle (Aquila chrysaetos). Number 684 in The Birds of North
America, A. Poole and G. Gill, editors. The Birds of North America,
Inc., Philadelphia, Pennsylvania.
McIntyre, C. L., D.C. Douglas, and M. W. Collopy. 2008. Movements
of golden eagles (Aquila chrysaetos) from interior Alaska during their
first year of independence. Auk 125:214-224.
Millsap, Brian and George Allen. 2006. Effects of Falconry Harvest
on Wild Raptor Populations in the United States: Theoretical
Considerations and Management Recommendations. Wildlife Society
Bulletin, 34(5):1392-1400.
U.S. Fish and Wildlife Service. 2007. National Bald Eagle
Management Guidelines, Arlington, Virginia.
List of Subjects in 50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Reporting and record keeping requirements, Transportation,
Wildlife.
List of Subjects in 50 CFR Part 22
Birds, Exports, Imports, Migratory Birds, Reporting and
recordkeeping requirements, Transportation, Wildlife.
Regulation Promulgation
0
For the reasons described in the preamble, we amend Subchapter B of
Chapter I, Title 50 of the Code of Federal Regulations, as set forth
below:
PART 13--GENERAL PERMIT PROCEDURES
0
1. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 668a, 704, 712, 742j-1, 1374(g), 1382,
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C.
1202; 31 U.S.C. 9701.
0
2. Amend the table in Sec. 13.11(d)(4) as follows:
0
a. Under the heading ``Bald and Golden Eagle Protection Act,'' remove
the entry for ``Eagle Depredation'' and replace it with a new entry for
``Eagle Take Permits--Depredation and Protection of Health and
Safety''; and
0
b. Add four entries under ``Bald and Golden Eagle Protection Act'' in
the table immediately following the entry for ``Eagle Transport--Native
American Religious Purposes,'' to read as follows:
Sec. 13.11 Application procedures.
* * * * *
(d) * * *
(4) User fees. * * *
----------------------------------------------------------------------------------------------------------------
Type of Permit CFR citation Fee Amendment Fee
----------------------------------------------------------------------------------------------------------------
* * * * *
Bald and Golden Eagle Protection Act
----------------------------------------------------------------------------------------------------------------
* * * * * * * .......................
----------------------------------------------------------------------------------------------------------------
Eagle Take permits--Depredation and 50 CFR 22 100 .......................
Protection of Health and Safety
----------------------------------------------------------------------------------------------------------------
* * * * * * * .......................
----------------------------------------------------------------------------------------------------------------
Eagle Take--Associated With but Not 50 CFR 22 500 150
the Purpose of an Activity
----------------------------------------------------------------------------------------------------------------
Eagle Take--Associated With but Not 50 CFR 22 1000 500
the Purpose of an Activity--
Programmatic
----------------------------------------------------------------------------------------------------------------
Eagle Nest Take 50 CFR 22 500 150
----------------------------------------------------------------------------------------------------------------
Eagle Nest Take--Programmatic 50 CFR 22 1000 500
----------------------------------------------------------------------------------------------------------------
* * * * * * * .......................
----------------------------------------------------------------------------------------------------------------
[[Page 46876]]
* * * * *
0
3. Amend the table in Sec. 13.12(b) as follows:
0
a. Under ``Eagle permits,'' remove the entry for ``Depredation
control'' and replace it with ``Depredation and Protection of Health
and Safety''; and
0
b. Add to the table the following entries in numerical order by section
number to read as follows:
Sec. 13.12 General information requirements on applications for
permits.
* * * * *
(b) * * *
------------------------------------------------------------------------
Type of permit Section
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
Eagle permits:
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
Depredation and Protection of Health and 22.23
Safety
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
Eagle Take--Associated With but Not the 22.26
Purpose of an Activity
------------------------------------------------------------------------
Eagle Nest Take 22.27
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
PART 22--EAGLE PERMITS
0
4. The authority citation for part 22 continues to read as follows:
Authority: 16 U.S.C. 668-668d; 16 U.S.C. 703-712; 16 U.S.C.
1531-1544.
0
5. Amend Sec. 22.3 as follows:
0
a. By revising the introductory paragraph to read as set forth below;
0
b. By removing the definition of ``Golden eagle nest'';
0
c. By revising the definitions of ``Inactive nest'' and Take'' to read
as set forth below; and
0
d. By adding new definitions for ``Advanced conservation practices'',
``Communal roost site'', ``Cumulative effects'', ``Eagle nest'',
``Foraging area'', ``Important eagle-use area'', ``Indirect effects'',
``Maximum degree achievable'', ``Necessary to ensure public health and
safety'', ``Practicable'', ``Programmatic permit'', ``Programmatic
take'', ``Safety emergency'' and ``Territory'' to read as set forth
below.
Sec. 22.3 What definitions do you need to know?
In addition to the definitions contained in part 10 of this
subchapter, and unless the context otherwise requires, in this part 22:
Advanced conservation practices means scientifically supportable
measures that are approved by the Service and represent the best
available techniques to reduce eagle disturbance and ongoing
mortalities to a level where remaining take is unavoidable.
* * * * *
Communal roost site means an area where eagles gather repeatedly in
the course of a season and shelter overnight and sometimes during the
day in the event of inclement weather.
Cumulative effects means the incremental environmental impact or
effect of the proposed action, together with impacts of past, present,
and reasonably foreseeable future actions.
* * * * *
Eagle nest means any readily identifiable structure built,
maintained, or used by bald eagles or golden eagles for the purpose of
reproduction.
* * * * *
Foraging area means an area where eagles regularly feed during one
or more seasons.
* * * * *
Important eagle-use area means an eagle nest, foraging area, or
communal roost site that eagles rely on for breeding, sheltering, or
feeding, and the landscape features surrounding such nest, foraging
area, or roost site that are essential for the continued viability of
the site for breeding, feeding, or sheltering eagles.
Inactive nest means a bald eagle or golden eagle nest that is not
currently being used by eagles as determined by the continuing absence
of any adult, egg, or dependent young at the nest for at least 10
consecutive days immediately prior to, and including, at present. An
inactive nest may become active again and remains protected under the
Eagle Act.
Indirect effects means effects for which a proposed action is a
cause, and which may occur later in time and/or be physically
manifested beyond the initial impacts of the action, but are still
reasonably likely to occur.
Maximum degree achievable means the standard at which any take that
occurs is unavoidable despite implementation of advanced conservation
practices.
Necessary to ensure public health and safety means required to
maintain society's well-being in matters of health and safety.
* * * * *
Practicable means capable of being done after taking into
consideration, relative to the magnitude of the impacts to eagles, the
following three things: the cost of remedy compared to proponent
resources; existing technology; and logistics in light of overall
project purposes.
Programmatic permit means a permit that authorizes programmatic
take. A programmatic permit can cover other take in addition to
programmatic take.
Programmatic take means take that is recurring, is not caused
solely by indirect effects, and that occurs over the long term or in a
location or locations that cannot be specifically identified.
* * * * *
Safety emergency means a situation that necessitates immediate
action to alleviate a threat of bodily harm to humans or eagles.
Take means pursue, shoot, shoot at, poison, wound, kill, capture,
trap, collect, destroy, molest, or disturb.
Territory means an area that contains, or historically contained,
one or more nests within the home range of a mated pair of eagles.
* * * * *
0
6. Amend Sec. 22.4 as follows:
0
a. In paragraph (a), the first sentence, by adding ``and 1018-0136''
immediately following ``1018-0022''; and
0
b. By revising paragraph (b) to read as follows:
Sec. 22.4 Information collection requirements.
* * * * *
(b) Direct comments regarding any aspect of these reporting
requirements to the Service Information Collection Control Officer, MS-
222 ARLSQ, U.S. Fish and Wildlife Service, Washington, DC 20240, or the
Office of Management and Budget, Paperwork Reduction Project (1018-0022
and 1018-0136), Washington, DC 20603.
0
7. Amend Sec. 22.23 by revising:
0
a. The section heading;
0
b. Paragraph (a) introductory text and paragraphs (a)(5) and (a)(6);
0
c. Paragraph (b) introductory text;
0
d. Paragraph (c) introductory text and paragraphs (c)(2) and (c)(3);
and
0
e. Paragraph (d), to read as follows:
Sec. 22.23 What are the requirements for permits to take depredating
eagles and eagles that pose a risk to human or eagle health and safety?
(a) How do I apply for a permit? You must submit applications for
permits under this section to the appropriate Regional Director--
Attention: Migratory Bird Permit Office. You can find addresses for the
appropriate Regional Directors in 50 CFR 2.2. Your application must
contain the information and certification required by Sec. 13.12(a) of
this subchapter, and the following additional information:
* * * * *
[[Page 46877]]
(5) Kind and number of livestock or domestic animals owned by
applicant, if applicable;
(6) Kind and amount of alleged damage, or description of the risk
posed to human health and safety or eagles; and
* * * * *
(b) What are the permit conditions? In addition to the general
conditions set forth in part 13 of this subchapter B, permits to take
bald or golden eagles under this section are subject to the following
conditions:
* * * * *
(c) Issuance criteria. The Director will not issue a permit to take
bald or golden eagles unless the Director has determined that such
taking is compatible with the preservation of the bald or golden eagle.
In making such determination, the Director will consider the following:
* * * * *
(2) Whether evidence shows that bald or golden eagles have in fact
become seriously injurious to wildlife or to agriculture or other
interests in the particular locality to be covered by the permit and
the injury complained of is substantial, or that bald or golden eagles
pose a significant risk to human or eagle health and safety; and
(3) Whether the only way to abate or prevent the damage caused by
the bald or golden eagle is to take some or all of the offending birds.
(d) Tenure of permits. The tenure of any permit to take bald or
golden eagles under this section is that shown on the face of the
permit. We will not issue these permits for terms longer than 90 days,
except that permits to authorize disturbance associated with hazing
eagles from the vicinity may be valid for up to 5 years. We may amend,
suspend, or revoke permits issued for a period of longer than 90 days
if new information indicates that revised permit conditions are
necessary, or that suspension or revocation is necessary, to safeguard
local or regional eagle populations.
0
8. Amend part 22, subpart C, by adding new Sec. 22.26 and Sec. 22.27
to read as follows:
Subpart C--Eagle Permits
* * * * *
Sec. 22.26 Permits for eagle take that is associated with, but not
the purpose of, an activity.
(a) Purpose and scope. This permit authorizes take of bald eagles
and golden eagles where the take is compatible with the preservation of
the bald eagle and the golden eagle; necessary to protect an interest
in a particular locality; associated with but not the purpose of the
activity; and
(1) For individual instances of take: the take cannot practicably
be avoided; or
(2) For programmatic take: the take is unavoidable even though
advanced conservation practices are being implemented.
(b) Definitions. In addition to the definitions contained in part
10 of this subchapter, and Sec. 22.3, the following definition applies
in this section:
Eagle means a live bald eagle (Haliaeetus leucocephalus), live
golden eagle (Aquila chrysaetos), a bald eagle egg, or a golden eagle
egg.
(c) Permit conditions. In addition to the conditions set forth in
part 13 of this subchapter, which govern permit renewal, amendment,
transfer, suspension, revocation, and other procedures and requirements
for all permits issued by the Service, your authorization is subject to
the following additional conditions:
(1) You must comply with all avoidance, minimization, or other
mitigation measures determined by the Director as reasonable and
specified in the terms of your permit to compensate for the detrimental
effects, including indirect effects, of the permitted activity on the
regional eagle population;
(2) You may be required to monitor eagle use of important eagle-use
areas where eagles are likely to be affected by your activities for up
to 3 years after completion of the activity or as set forth in a
separate management plan, as specified on your permit. Unless different
monitoring protocols are required under a separate management plan
approved by the Service and denoted on the permit, monitoring consists
of periodic site visits, during the season(s) when eagles would
normally be present, to the area where the take is likely to occur, and
noting whether eagles continue to nest, roost, or forage there. The
periodic monitoring is required for the duration of the activity that
is likely to cause take (during the season(s) that eagles would
normally be present). The frequency and duration of required monitoring
after the activity is completed will depend on the form and magnitude
of the anticipated take and the objectives of associated conservation
measures, not to exceed what is reasonable to meet the primary purpose
of the monitoring, which is to provide data needed by the Service
regarding the impacts of human activity on eagles for purposes of
adaptive management. Monitoring will not be required beyond 3 years
after completion of an activity that was likely to cause take. For
ongoing activities and enduring site features that continue to be
likely to result in take, periodic monitoring may be required for as
long as the data are needed to assess impacts to eagles.
(3) You must submit an annual report summarizing the information
you obtained through monitoring to the Service every year that your
permit is valid and for up to 3 years after completion of the activity
or termination of the permit, as specified in your permit. If your
permit expires or is suspended or revoked before the activity is
completed, you must submit the report within 60 days of such date.
Reporting requirements include:
(i) Whether eagles are observed using the important eagle-use areas
designated on the permit; and
(ii) Description of the human activities conducted at the site when
eagles are observed.
(4) While the permit is valid and for up to 3 years after it
expires, you must allow Service personnel, or other qualified persons
designated by the Service, access to the areas where eagles are likely
to be affected, at any reasonable hour, and with reasonable notice from
the Service, for purposes of monitoring eagles at the site(s).
(5) The authorizations granted by permits issued under this section
apply only to take that results from activities conducted in accordance
with the description contained in the permit application and the terms
of the permit. If the permitted activity changes after a permit is
issued, you must immediately contact the Service to determine whether a
permit amendment is required in order to retain take authorization.
(6) You must contact the Service immediately upon discovery of any
unanticipated take.
(7) The Service may amend, suspend, or revoke a programmatic permit
issued under this section if new information indicates that revised
permit conditions are necessary, or that suspension or revocation is
necessary, to safeguard local or regional eagle populations. This
provision is in addition to the general criteria for amendment,
suspension, and revocation of Federal permits set forth in Sec. Sec.
13.23, 13.27, and 13.28.
(8) Notwithstanding the provisions of Sec. 13.26 of this
subchapter, you remain responsible for all outstanding monitoring
requirements and mitigation measures required under the terms of the
permit for take that occurs prior to cancellation, expiration,
suspension, or revocation of the permit.
(9) You must promptly notify the Service of any eagle(s) found
injured or
[[Page 46878]]
dead at the activity site, regardless of whether the injury or death
resulted from your activity. The Service will determine the disposition
of such eagles.
(10) The authorization granted by permits issued under this section
is not valid unless you are in compliance with all Federal, tribal,
State, and local laws and regulations applicable to take of eagles.
(d) Applying for an eagle take permit.
(1) You are advised to coordinate with the Service as early as
possible for advice on whether a permit is needed and for technical
assistance in assembling your permit application package. The Service
may provide guidance on developing complete and adequate application
materials and will determine when the application form and materials
are ready for submission.
(2) Your application must consist of a completed application Form
3-200-71 and all required attachments. Send applications to the
Regional Director of the Region in which the disturbance would occur--
Attention: Migratory Bird Permit Office. You can find the current
addresses for the Regional Directors in Sec. 2.2 of subchapter A of
this chapter.
(e) Evaluation of applications. In determining whether to issue a
permit, we will evaluate:
(1) Whether take is likely to occur based on the magnitude and
nature of the impacts of the activity, which include indirect effects.
For potential take in the form of disturbance, this evaluation would
include:
(i) The prior exposure and tolerance to similar activity of eagles
in the vicinity;
(ii) Visibility of the activity from the eagle's nest, roost, or
foraging perches; and
(iii) Whether alternative suitable eagle nesting, roosting, and/or
feeding areas that would not be detrimentally affected by the activity
are available to the eagles potentially affected by the activity.
(2) Whether the take is:
(i) Compatible with the preservation of the bald eagle and the
golden eagle, including consideration of indirect effects and the
cumulative effects of other permitted take and other additional factors
affecting eagle populations;
(ii) Associated with the permanent loss of an important eagle use
area;
(iii) Necessary to protect a legitimate interest in a particular
locality; and
(iv) Associated with, but not the purpose of, the activity.
(3) Whether the applicant has proposed avoidance and minimization
measures to reduce the take to the maximum degree practicable, and for
programmatic authorizations, the take is unavoidable despite
application of advanced conservation practices developed in
coordination with the Service.
(4) Whether issuing the permit would preclude the Service from
authorizing another take necessary to protect an interest of higher
priority, according to the following prioritization order:
(i) Safety emergencies;
(ii) Native American religious use for rites and ceremonies that
require eagles be taken from the wild;
(iii) Renewal of programmatic take permits;
(iv) Non-emergency activities necessary to ensure public health and
safety; and
(v) Other interests.
(5) Any additional factors that may be relevant to our decision
whether to issue the permit, including, but not limited to, the
cultural significance of a local eagle population.
(f) Required determinations. Before we issue a permit, we must find
that:
(1) The direct and indirect effects of the take and required
mitigation, together with the cumulative effects of other permitted
take and additional factors affecting eagle populations, are compatible
with the preservation of bald eagles and golden eagles;
(2) The taking is necessary to protect a legitimate interest in a
particular locality;
(3) The taking is associated with, but not the purpose of, the
activity;
(4) The taking cannot practicably be avoided; or for programmatic
authorizations, the take is unavoidable;
(5) The applicant has avoided and minimized impacts to eagles to
the extent practicable, and for programmatic authorizations, the taking
will occur despite application of advanced conservation practices; and
(6) Issuance of the permit will not preclude issuance of another
permit necessary to protect an interest of higher priority as set forth
in paragraph (e)(4) of this section.
(g) We may deny issuance of a permit if we determine that take is
not likely to occur.
(h) Permit duration. The duration of each permit issued under this
section will be designated on its face, and will be based on the
duration of the proposed activities, the period of time for which take
will occur, the level of impacts to eagles, and mitigation measures,
but will not exceed 5 years.
Sec. 22.27 Removal of eagle nests.
(a) Purpose and scope.
(1) A permit may be issued under this section to authorize removal
or relocation of:
(i) An active or inactive nest where necessary to alleviate a
safety emergency;
(ii) An inactive eagle nest when the removal is necessary to ensure
public health and safety;
(iii) An inactive nest that is built on a human-engineered
structure and creates a functional hazard that renders the structure
inoperable for its intended use; or
(iv) An inactive nest, provided the take is necessary to protect an
interest in a particular locality and the activity necessitating the
take or the mitigation for the take will, with reasonable certainty,
provide a clear and substantial benefit to eagles.
(2) Where practicable and biologically warranted, the permit may
require a nest to be relocated, or a substitute nest provided, in a
suitable site within the same territory to provide a viable nesting
option for eagles within that territory, unless such relocation would
create a threat to safety. However, we may issue permits to remove
nests that we determine cannot or should not be relocated. The permit
may authorize take of eggs or nestlings if present. The permit may also
authorize the take of adult eagles (e.g., disturbance or capture)
associated with the removal or relocation of the nest.
(3) A programmatic permit may be issued under this section to cover
multiple nest takes over a period of up to 5 years, provided the
permittee complies with comprehensive measures that are developed in
coordination with the Service, designed to reduce take to the maximum
degree technically achievable, and specified as conditions of the
permit.
(4) This permit does not authorize intentional, lethal take of
eagles.
(b) Conditions.
(1) Except for take that is necessary to alleviate an immediate
threat to human or eagle safety, only inactive eagle nests may be taken
under this permit.
(2) When an active nest must be removed under this permit, any take
of nestlings or eggs must be conducted by a Service-approved,
qualified, and permitted agent, and all nestlings and viable eggs must
be immediately transported to foster/recipient nests or a
rehabilitation facility permitted to care for eagles, as directed by
the Service.
(3) Possession of the nest for any purpose other than removal or
relocation is prohibited without a separate permit issued under this
part authorizing such possession.
(4) You must submit a report consisting of a summary of the
activities conducted under the permit to the Service within 30 days
after the
[[Page 46879]]
permitted take occurs, except that for programmatic permits, you must
report each nest removal within 10 days after the take and submit an
annual report by January 31 containing all the information required in
Form 3-202-16 for activities conducted during the preceding calendar
year.
(5) You may be required to monitor the area and report whether
eagles attempt to build or occupy another nest at another site in the
vicinity for the duration specified in the permit.
(6) You may be required under the terms of the permit to harass
eagles from the area following the nest removal when the Service
determines it is necessary to prevent eagles from re-nesting in the
vicinity.
(7) You must comply with all avoidance, minimization, or other
mitigation measures determined by the Director as reasonable and
specified in the terms of your permit to compensate for the detrimental
effects, including indirect effects, of the permitted activity on--and
for permits issued under paragraph (a)(1)(iv) of this section, to
provide a net benefit to--the regional eagle population.
(8) The Service may amend or revoke a programmatic permit issued
under this section if new information indicates that revised permit
conditions are necessary, or that suspension or revocation is
necessary, to safeguard local or regional eagle populations.
(9) Notwithstanding the provisions of Sec. 13.26 of this
subchapter, you remain responsible for all outstanding monitoring
requirements and mitigation measures required under the terms of the
permit for take that occurs prior to cancellation, expiration,
suspension, or revocation of the permit.
(10) The authorization granted by permits issued under this section
is not valid unless you are in compliance with all Federal, tribal,
State, and local laws and regulations applicable to take of eagles.
(c) Applying for a permit to take eagle nests.
(1) If the take is necessary to address an immediate threat to
human or eagle safety, contact your local U.S. Fish and Wildlife
Service Regional Migratory Bird Permit Office (http://www.fws.gov/
permits/mbpermits/addresses.html) at the earliest possible opportunity
to inform the Service of the emergency.
(2) Your application must consist of a completed application Form
3-200-72 and all required attachments. Send applications to the
Regional Director of the Region in which the disturbance would occur--
Attention: Migratory Bird Permit Office. You can find the current
addresses for the Regional Directors in Sec. 2.2 of subchapter A of
this chapter.
(d) Evaluation of applications. In determining whether to issue a
permit, we will evaluate:
(1) Whether the activity meets the requirements of paragraph (a)(1)
of this section;
(2) The direct and indirect effects of the take and required
mitigation, together with the cumulative effects of other permitted
take and additional factors affecting eagle populations;
(3) Whether there is a practicable alternative to nest removal that
will protect the interest to be served;
(4) Whether issuing the permit would preclude the Service from
authorizing another take necessary to protect an interest of higher
priority, as set forth in paragraph (e)(5) of this section;
(5) For take that is not necessary to alleviate an immediate safety
emergency, whether suitable nesting and foraging habitat is available
to accommodate eagles displaced by the nest removal; and
(6) Any additional factors that may be relevant to our decision
whether to issue the permit, including, but not limited to, the
cultural significance of a local eagle population.
(e) Required determinations. Before issuing a permit under this
section, we must find that:
(1) The direct and indirect effects of the take and required
mitigation, together with the cumulative effects of other permitted
take and additional factors affecting eagle populations, are compatible
with the preservation of the bald eagle or the golden eagle;
(2) For inactive nests:
(i) The take is necessary to ensure public health and safety;
(ii) The nest is built on a human-engineered structure and creates
a functional hazard that renders the structure inoperable for its
intended use; or
(iii) The take is necessary to protect a legitimate interest in a
particular locality, and the activity necessitating the take or the
mitigation for the take will, with reasonable certainty, provide a
clear and substantial benefit to eagles;
(3) For active nests, the take is necessary to alleviate an
immediate threat to human safety or eagles;
(4) There is no practicable alternative to nest removal that would
protect the interest to be served; and
(5) Issuing the permit will not preclude the Service from
authorizing another take necessary to protect an interest of higher
priority, according to the following prioritization order:
(i) Safety emergencies;
(ii) Native American religious use for rites and ceremonies that
require eagles be taken from the wild;
(iii) Renewal of programmatic nest-take permits;
(iv) Non-emergency activities necessary to ensure public health and
safety;
(v) Resource development or recovery operations (under Sec. 22.25,
for golden eagle nests only);
(vi) Other interests.
(6) For take that is not necessary to alleviate an immediate threat
to human safety or eagles, we additionally must find that suitable
nesting and foraging habitat is available to the area nesting
population of eagles to accommodate any eagles displaced by the nest
removal.
(f) Tenure of permits. The tenure of any permit to take eagle nests
under this section is set forth on the face of the permit and will not
be longer than 5 years.
0
9. Amend Sec. 22.28 by revising paragraphs (a) and (b) to read as
follows:
Sec. 22.28 Permits for bald eagle take exempted under the Endangered
Species Act.
(a) Purpose and scope. This permit authorizes take of bald eagles
(Haliaeetus leucocephalus) in compliance with the terms and conditions
of a section 7 incidental take statement under the Endangered Species
Act of 1973, as amended (ESA) (16 U.S.C. 1531 et seq.; 50 CFR 402,
Subpart B) issued prior to the effective date of 50 CFR 22.26.
(b) Issuance criteria. Before issuing you a permit under this
section, we must find that you are in full compliance with the terms
and conditions contained in the applicable ESA incidental take
statement issued prior to the effective date of 50 CFR 22.26 for take
of eagles, based on your certification and any other relevant
information available to us, including, but not limited to, monitoring
or progress reports required pursuant to your incidental take
statement. The terms and conditions of the Eagle Act permit under this
section, including any modified terms and conditions, must be
compatible with the preservation of the bald eagle.
* * * * *
Dated: May 18, 2009.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-21589 Filed 9-10- 09; 8:45 am]
BILLING CODE 4310-55-S