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September 11, 2009

Part II

Department of the
Fish and Wildlife Service

50 CFR Parts 13 and 22

Eagle Permits; Take Necessary To Protect
Interests in Particular Localities; Final
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46836 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations

DEPARTMENT OF THE INTERIOR conservation agencies, four flyway of stable or increasing breeding
committees (associations of State populations.
Fish and Wildlife Service conservation agencies), one State • The rule includes new issuance
department of transportation, five criteria to ensure that, except for safety
50 CFR Parts 13 and 22 environmental non-governmental emergencies, Native American religious
organizations (NGOs), four industry needs are given first priority if requests
91200-1231-9BPP-L2] associations, three law firms/ for eagle take permits exceed take
consultants on behalf of Florida thresholds that are compatible with the
RIN 1018-AV81 development companies, two power preservation of the bald eagle or the
companies, one Federal reclamation golden eagle.
Eagle Permits; Take Necessary To project, one airport, three rail • The rule no longer provides different
Protect Interests in Particular transportation companies (commenting issuance criteria for lethal versus non-
Localities together), and three private citizens. lethal take. Rather, it contains separate
AGENCY: Fish and Wildlife Service, We released a draft environmental provisions for programmatic take versus
Interior. assessment (DEA) of the action on individual instances of take.
August 14, 2008 (73 FR 47574) and re- • We amend the existing Eagle
ACTION: Final rule.
opened the public comment period on Depredation Permit regulations at 50
SUMMARY: In conjunction with release of the proposed rule with some revisions CFR 22.23 to extend permit tenure from
a final environmental assessment of this noted in the August 14 Federal Register 90 days to up to 5 years for purposes of
action, the U.S. Fish and Wildlife notice. During that 30–day comment hazing eagles. The purpose of these
Service (‘‘we’’ or ‘‘the Service’’) is period, we received 58 comments from: revisions is to enable issuance of
finalizing permit regulations to one airport, three electric utilities, three permits that combine programmatic
authorize limited take of bald eagles Federal agencies, ten individuals (non- authorizations provided under § 22.23
(Haliaeetus leucocephalus) and golden tribal), five industry associations, nine and the regulations in this final rule. We
eagles (Aquila chrysaetos) under the NGOs, one conglomeration of railroad are also taking the opportunity to revise
Bald and Golden Eagle Protection Act companies, 13 State agencies, three terminology throughout § 22.23 to
(Eagle Act), where the take to be flyway committees, one transportation clarify that we can issue permits under
authorized is associated with otherwise association, three Native American that section to prevent or resolve safety
lawful activities. These regulations also tribal members one tribal Department of emergencies as well as to protect
establish permit provisions for Natural Resources, three tribes, and two agriculture and wildlife.
intentional take of eagle nests under confederations of tribes. • The rule expands (from the June
particular, limited circumstances. Based on public comment received on 2007 proposed rule) the purposes for
the June 5, 2007 proposed rule, new which eagle nests may be taken to
DATES: This rule goes into effect on
information compiled through the include take necessary to ensure public
November 10, 2009.
process of drafting the DEA, and public health and safety. The proposed rule
FOR FURTHER INFORMATION CONTACT: comment on the DEA and re-opened limited nest removal to emergencies
Eliza Savage, Division of Migratory Bird rule, we developed this final rule, the where human or eagle safety was
Management, via e-mail at final environmental impact assessment imminently threatened.; telephone: 703- (FEA), and a Finding of No Significant • Nest take permits may be issued for
358-2329; or U.S. Fish and Wildlife Impact. Along with a variety of small projects that will provide a net benefit
Service, 4401 North Fairfax Drive, changes, this final rule contains the to eagles (including projects where the
Mailstop 4107, Arlington, Virginia following significant additions and net benefit is the result of compensatory
22203-1610. revisions from the June 5, 2007, mitigation measures).
SUPPLEMENTARY INFORMATION: proposed rule: • Permits may also be issued to take
• The rule was split into two rules to eagle nests built on human-engineered
be finalized separately from one structures where the nest interferes with
These final regulations authorize the another. The original proposal to extend the intended use of the structure.
limited take of bald eagles and golden (or ‘‘grandfather’’) Eagle Act take • The rule redefines some terms and
eagles under the Bald and Golden Eagle authorization to take previously includes new definitions for a number
Protection Act (Eagle Act) (16 U.S.C. authorized under the Endangered of additional terms used in the
668–668d), where the take to be Species Act (ESA) (16 U.S.C. 1531 et regulations.
authorized is associated with otherwise seq.) has been separated from the The Bald and Golden Eagle Protection
lawful activities. These regulations also remainder of the provisions in order to Act (16 U.S.C. 668-668d) (Eagle Act)
establish permit provisions for finalize the ‘‘grandfathering’’ provisions prohibits the take of bald eagles and
intentional take of eagle nests where more expeditiously. Those provisions golden eagles unless pursuant to
necessary to ensure public health and were published as a final rule on May regulations (and in the case of bald
safety and in other limited 20, 2008 (73 FR 29075). eagles, take can only be authorized
circumstances. We proposed these • We modified our interpretation under a permit). While the bald eagle
regulations on June 5, 2007 (72 FR (provided in the June 5, 2007, proposed was listed under the ESA,
31141) and provided a 90–day public rule) of the statutory mandate that authorizations for incidental take of
comment period, which closed on permitted take be ‘‘compatible with the bald eagles were granted through the
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September 4, 2007. The Service received preservation of the bald eagle or the ESA’s section 10 incidental take permits
approximately 21,500 comments, about golden eagle.’’ In the original proposal, and ESA’s section 7 incidental take
21,400 of which are essentially we proposed to use the standard that statements, both of which were issued
identical. Thirty-five respondents regional and national eagle populations with assurances that the Service would
provided substantive input that was not decline at a rate greater than 0.54% exercise enforcement discretion in
helpful in crafting final regulations. The annually. In this final rule, we interpret relation to violations of the Eagle Act
35 respondents consisted of: one the ‘‘preservation’’ standard to allow and Migratory Bird Treaty Act (MBTA)
Federal agency, three tribes, six State actions that are consistent with the goal (16 U.S.C. 703-712). Upon delisting, all

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Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations 46837

prohibitions contained in the ESA, such issuance under § 22.26 and § 22.27 will that DPS should be listed as threatened
as those that prescribe the take of bald be governed by the permit provisions or endangered.
eagles, no longer apply. However, the presently in 50 CFR parts 13 and 22, We estimate the current number of
potential for human activities to violate and new provisions we are finalizing as breeding pairs in the 48 contiguous
Federal law by taking eagles remains § 22.26 and § 22.27. States to be over 9,700. Bald eagles were
under the prohibitions of the Eagle Act In our June 5, 2007, proposed rule, we never listed as threatened or endangered
and the MBTA. The Eagle Act defines also proposed certain provisions to in Alaska, where we currently estimate
the ‘‘take’’ of an eagle to include a broad extend Eagle Act authorizations to bald eagles to number between 50,000
range of actions: ‘‘pursue, shoot, shoot persons previously granted and 70,000 birds, including
at, poison, wound, kill, capture, trap, authorization to take eagles under the approximately 15,000 breeding pairs.
collect, or molest or disturb.’’ ‘‘Disturb’’ ESA. We split the rulemaking into two Bald eagles do not occur in Hawaii.
is defined in regulations at 50 CFR 22.3 separate rules and finalized the ESA- Under sections 7(b)(4) and 10(a)(1)(B)
as: ‘‘to agitate or bother a bald or golden related provisions separately on May 20, of the ESA, we may authorize the
eagle to a degree that causes, or is likely 2008 (73 FR 29075). incidental take of listed wildlife that
to cause, based on the best scientific occurs in the course of otherwise lawful
Most rules take effect 30 days after
information available, (1) injury to an activities. Thus, while the bald eagle
Federal Register publication; however,
eagle, (2) a decrease in its productivity, was listed under the ESA in the lower
more time is needed to work out
by substantially interfering with normal 48 States (and where it is still listed, i.e.,
important details about how this
breeding, feeding, or sheltering the Sonoran Desert area of central
program will be implemented. Therefore
behavior, or (3) nest abandonment, by Arizona), two mechanisms were
this rule has an effective date of 60 days
substantially interfering with normal available to authorize take that was
after publication in the Federal associated with, but not the purpose of,
breeding, feeding, or sheltering Register. We are drafting
behavior.’’ a human activity. Eagle take that was
implementation guidance, and will prohibited under the ESA is, in many
Many actions that are considered
release it for public notice and comment instances, also prohibited under the
likely to incidentally take (harm or
before officially adopting it. Although Eagle Act. Now that the bald eagle is
harass) eagles under the ESA will also
the implementation guidance will not delisted (except for the Sonoran Desert
disturb or otherwise take eagles under
be finalized by the rule’s effective date, population), a mechanism is needed to
the Eagle Act. Until now, there was no
the extra 30 days will help promote authorize take of bald eagles pursuant to
regulatory mechanism in place under
the Eagle Act to permit take of bald or consistency in the initial permit the Eagle Act. The mechanism should
golden eagles comparable to incidental administration, and we can begin also be available to authorize take of
take permits under the ESA. This rule issuing permits using the draft golden eagles, which were never listed
adds a new section at 50 CFR 22.26 to guidance. as threatened or endangered under the
authorize the issuance of permits to take History ESA, as long as it is crafted with
bald eagles and golden eagles on a sufficient safeguards to ensure the
limited basis. The regulations are On August 8, 2007, the bald eagle was preservation of both species.
applicable to golden eagles as well as removed from the List of Threatened The Eagle Act provides that the
bald eagles. We will authorize take of and Endangered Wildlife (72 FR 37345, Secretary of the Interior may authorize
bald or golden eagles only if we July 9, 2007). The final delisting rule certain otherwise prohibited activities
determine that the take (1) is compatible also constituted our final decision that through promulgation of regulations.
with the preservation of the bald eagle the Sonoran Desert population of bald The Secretary is authorized to prescribe
and the golden eagle and (2) cannot eagles did not qualify as a distinct regulations permitting the ‘‘taking,
practicably be avoided. For purposes of population segment (DPS), and was possession, and transportation of [bald
these regulations, ‘‘compatible with the therefore not a listable entity under the or golden eagles] . . . for the scientific
preservation of the bald eagle or the ESA. Our finding on the status of the or exhibition purposes of public
golden eagle’’ means ‘‘consistent with Sonoran Desert population was museums, scientific societies, and
the goal of stable or increasing breeding challenged in court. A March 5, 2008, zoological parks, or for the religious
populations.’’ Although the biologically- ruling by the U.S. District Court for the purposes of Indian tribes, or . . . for the
based take thresholds for permitting District of Arizona (Center for Biological protection of wildlife or of agricultural
under these regulations will be based on Diversity v. Kempthorne, CV 07-0038- or other interests in any particular
regional populations (as explained PHX-MHM (D. Ariz)) ruled in favor of locality,’’ provided such permits are
below and in more detail in the FEA), the plaintiffs. As a result of the court ‘‘compatible with the preservation of the
we will also consider other factors, such order, we published two documents in bald eagle or the golden eagle’’ (16
as cultural significance, that may the Federal Register. First, on May 1, U.S.C. 668a). In accordance with this
warrant protection of smaller and/or 2008, we published a final rule authority, the Secretary has previously
isolated populations within a region. reinstating ESA threatened status for promulgated Eagle Act permit
We are adding a second new section bald eagles in the Sonoran Desert area regulations for scientific and exhibition
at 50 CFR 22.27 to authorize the of central Arizona (73 FR 23966). The purposes (50 CFR 22.21), for Indian
removal of bald eagle and golden eagle final rule also included a map showing religious purposes (50 CFR 22.22), to
nests where (1) necessary to alleviate a the geographic area where bald eagles take depredating eagles (50 CFR 22.23),
safety hazard to people or eagles, (2) are protected as a threatened species. to possess golden eagles for falconry (50
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necessary to ensure public health and Second, on May 20, 2008, we published CFR 22.24), and for the take of golden
safety, (3) the nest prevents the use of a notice initiating a status review for eagle nests that interfere with resource
a human-engineered structure, or (4) the bald eagles in the Sonoran Desert area development or recovery operations (50
activity, or mitigation for the activity, of central Arizona (73 FR 29096). Once CFR 22.25). This rulemaking establishes
will provide a net benefit to eagles. We the status review is completed, we will permit regulations to authorize eagle
are also promulgating new definitions issue a 12–month finding on whether take ‘‘for the protection of . . . other
under the Eagle Act to clarify terms listing these bald eagles as a DPS under interests in any particular locality.’’
used in the permit regulations. Permit the ESA is warranted, and if so, whether This statutory language accommodates a

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46838 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations

broad spectrum of public and private infrastructure) if they adopt such resource or private property, but their
interests (such as utility infrastructure advanced conservation measures. presence poses a danger to themselves
development and maintenance, road Purposeful take will not be authorized or to people (e.g. at uncovered landfills
construction, operation of airports, under this permit. In rare cases where where eagles may ingest toxic
commercial or residential construction, purposeful take may be necessary to substances). Other than these clarifying
resource recovery, recreational use, etc.) avoid incidental take (such as relocating revisions, including to the section title,
that might ‘‘take’’ eagles as defined birds or a nest from a critical project and amending the permit tenure, we are
under the Eagle Act. area), it may be authorized under 50 not making any substantive revisions to
In accordance with the National CFR 22.23 (for purposeful take of eagles the regulations at § 22.23 in this
Environmental Policy Act (42 U.S.C. to protect agriculture, wildlife, and rulemaking.
4321 et seq.), we have prepared a final other interests), 50 CFR 22.25 (take of Population Assessment and Take
environmental assessment (FEA) of this golden eagle nests for resource Thresholds. Permit issuance will be
action. You can obtain a copy of the development and recovery operations), conditioned on various criteria, the
FEA from or new 50 CFR 22.27 (take of nests for most important of which is that the
migratorybirds/baldeagle.htm. health and safety). The latter regulation permitted take is compatible with the
is finalized as part of this rulemaking. preservation of the bald eagle and the
Description of the Rulemaking golden eagle. The statutory requirement
Where appropriate, the Service will
Take Permit Regulations Under 50 CFR issue a single permit that combines that the authorized activities be
22.26. compatible with the preservation of bald
authorizations provided under the
eagles and golden eagles ensures the
We promulgate a new permit various regulations. For example, an
continued protection of the species
regulation under the authority of the airport that meets the obligations of its
while allowing some impacts to
Eagle Act for the limited take of bald Wildlife Hazard Management Plan and
individual eagles. For purposes of these
eagles and golden eagles ‘‘for the adopts measures developed in
regulations, ‘‘compatible with the
protection of . . . other interests in any cooperation with the Service to
preservation of the bald eagle and
particular locality’’ where the take is minimize the potential for take of
golden eagle’’ means ‘‘consistent with
compatible with the preservation of the eagles, could be issued a programmatic
the goal of stable or increasing breeding
bald eagle and the golden eagle, is permit under these regulations (§ 22.26)
associated with and not the purpose of that would be valid for up to 5 years to In our June 5, 2007, proposed rule, we
an otherwise lawful activity, and cannot authorize eagle take that occurs as the proposed to use 0.54% as the threshold
practicably be avoided. ‘‘Practicable’’ in result of unavoidable collisions between rate of decline, which is the rate of
this context means ‘‘capable of being eagles and planes. One of the decline used by Partners in Flight (PIF)
done after taking into consideration, stipulations of the permit would likely as one of the factors for designating an
relative to the magnitude of the impacts be the requirement to haze eagles in the avian species to their Continental Watch
to eagles (1) the cost of remedy vicinity of airports, which in some cases List. However, steady declines, even as
compared to proponent resources; (2) could constitute disturbance (for small as 0.54% annually, would
existing technology; and (3) logistics in example, to prevent eagles from re- cumulatively result in an unacceptably
light of overall project purposes.’’ nesting at a hazardous location). large decrease in eagle populations over
We anticipate that permits issued Because this hazing is intentional and time. For this and other reasons (see
under this regulation will usually the effects on the eagles purposeful, it Responses to Public Comments), we
authorize take that occurs in the form of does not meet the issuance criteria for agree that the original proposed
disturbance; however, in some limited the § 22.26 permit, which requires the management scenario was not
cases, a permit may authorize lethal take taking to be associated with, but not the sufficiently conservative and will
that results from but is not the purpose purpose of, the activity. Therefore, we instead adopt as our management goal
of an otherwise lawful activity. would issue the permit with the increasing or stable breeding
Programmatic take (take that is recurring combined authority of both § 22.26 and populations.
and not in a specific, identifiable § 22.23. However, the regulations at § In the DEA and notice re-opening of
timeframe and/or location) will be 22.23 had previously limited permit the comment period on the rule (73 FR
authorized only where it is unavoidable tenure to 90 days because the need for 47574, August 14, 2008), to elucidate
despite implementation of programmatic authorization was not the statutory standard of ‘‘preservation
comprehensive measures developed in contemplated at the time that regulation of the bald eagle or the golden eagle,’’
cooperation with the Service to reduce was developed. In order to have the we proposed the following terminology:
the take below current levels (see ability to extend this type of ‘‘maintaining increasing or stable
discussion below, under ‘‘Programmatic authorization to ‘‘Advanced populations.’’ We continue to support
permits’’). This type of authorization Conservation’’ programmatic permittees, the essential meaning of that standard,
can be extended to industries, such as we are amending the regulations at § but recognized that it could be
electric utilities or transportation 22.23 to allow permits to also be valid misapplied to constrain any
industries, that currently take eagles in for up to five years. We are also taking authorization of take because any take of
the course of otherwise lawful activities the opportunity to make additional a bald or golden eagle by some degree
but who can work with the Service to minor revisions throughout § 22.23 to results in a population decrease, even if
develop and implement additional, clarify that we may issue permits under short-term and inconsequential for the
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exceptionally comprehensive measures that section to alleviate safety long-term preservation of the species.
to reduce take to the level where it is emergencies, and not just to protect Thus, if interpreted so narrowly, the
essentially unavoidable. A agriculture, wildlife or other interests word ‘‘maintaining’’ would render us
programmatic take permit could also be from depredating eagles. Hazing eagles unable to authorize any take. Therefore,
issued to State and Federal agencies that at airports has been the primary purpose we are revising our interpretation of
take eagles in the course of their for which we have exercised this option, ‘‘preservation of the eagle’’ to read
activities (e.g., construction and but there may be other scenarios where ‘‘consistent with the goal of stable or
maintenance of roads and other critical eagles are not depredating on any increasing breeding populations.’’ The

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phrase ‘‘consistent with the goal of’’ will by a mapping team at the first indicated that demand for permits
allow take that is compatible with long- international meeting of the North under these regulations, and the effects
term stability or growth of eagle American Bird Conservation Initiative of issuing those permits, including
populations. Adding the word (NABCI) in 1998, BCRs are an mitigation measures, would not be
‘‘breeding’’ clarifies the significance of application of the framework of nested significant enough to cause a decline in
the number of breeding pairs for ecological units delineated by the eagle populations from current levels.
maintaining or growing populations, Commission for Environmental (We recognized that take of bald eagles
versus floaters (non-breeding adults). Cooperation (CEC). in the Southwest would need to be
For more discussion on the biological Because Service Regions are not extremely limited, if permitted at all.)
basis for distinguishing between administered according to BCR However, further analysis indicates that
breeding eagles and floaters, see the boundaries, we will administer permits there are additional populations where
FEA. by Service Regional Permit offices. a relatively modest level of demand for
To establish management populations Service Regions would coordinate take permits could exceed the level of
for bald eagles, we used natal closely when issuing permits to ensure take that would be compatible with
populations (eagles within the median that the threshold for that BCR is not maintaining current population levels,
natal dispersal range of each other, exceeded. Unfortunately, there is little particularly for golden eagles.
estimated at 43 miles) in our evaluation reliable recent data for breeding golden A 2006 survey (Good and others,
in order to look at distribution across eagles. Many States have not had the 2007) showed decreasing golden eagle
the landscape. Being able to see where resources to conduct monitoring of populations in two BCRs. A draft report
natal populations appear sparser, rather golden eagle populations, in some cases of 2007 surveys in the same areas (BCRs
than concentrated, allows us to for up to 20 or more years. However, we 9, 10, 16, and 17, hereinafter WEST
determine natural boundaries between will base thresholds on existing data areas) found decreasing golden eagle
regional eagle populations, reducing the and modeling until better data become populations in two BCRs, one of which
risk that we would issue take permits in available. As discussed further below was the same as the previous report
any one regional management area in a and in greater detail in the FEA, the best (Good and others, 2008). Kirk and
manner that is disproportionate to the available data we have for golden eagles Hyslop (1998) indicated that golden
population in the area. indicate modest declines in the four eagle populations may be declining in
We acknowledge that this approach is BCRs that constitute 80 percent of its some areas of Canada. Good and others
somewhat subjective, and that the range in the lower 48 states. As a result, (2004) estimated that there were just
regional management populations until we have additional data to show over 27,000 golden eagles in the 4 BCRs
delineated are not, in most cases, that populations can withstand in which the species is of conservation
genetically or even demographically additional take, we are deferring concern. These BCRs encompass much
isolated. However, we believe the implementation of the new permit types of the western U.S. population and most
approach does serve to identify for golden eagles, except for safety of the North American population of
biologically-based, regional populations emergencies and programmatic permits. this species. Breeding bird surveys and
at a scale meaningful for eagle We will continue to issue historically- migration counts are inconclusive but
conservation. The Service’s goal in authorized take permits under existing suggest lowered reproduction rates in
managing bald eagles at this scale is to permit types at the level of take carried the western United States, possibly due
ensure permitted take does not out under those permits (average over to habitat alteration and loss, with
negatively affect the species’ status in 2002-2007). concomitant declines in prey (Kochert
any regional management population. We will use modeling to evaluate the and others, 2002). A preliminary report
Because the management populations level of take we can permit that is on the 2008 surveys in the WEST areas
delineated by this approach roughly compatible with this statutory showed population declines in all four
correspond to the Service’s threshold, taking into consideration the BCRs covered in the survey, an area
organizational structure made up of cumulative effects of all permitted take, which is believed to contain
eight Service Regional Offices, we will including other forms of lethal take approximately 80% of the golden eagle
manage bald eagles based on permitted under this section and other population in the lower 48 states.
populations within the eight Service causes of mortality and nest loss. Due to These new permits represent a
Regions, with some shared populations. the inherent limits of monitoring to somewhat different approach to eagle
Permits will be administered by Service detect precise fluctuations in bald eagle management and have significant policy
Regions in coordination with each and golden eagle numbers, coupled with implications and uncertainties. Those
other, especially where a management the uncertainty as to whether individual uncertainties and stochasticity (natural
area lies in more than one Service actions being permitted will in fact variability in vital rates affecting
Region. We plan to evaluate this result in a ‘‘take,’’ we cannot precisely population trends) for both species
management and administrative correlate each individual permit support a more conservative approach
approach regularly, at least once every decision with a specific population than we proposed in our DEA, which
five years. impact. However, we will periodically proposed capping threshold at c
For golden eagles, available data on re-calibrate regional take thresholds, maximum sustainable yield (MSY). The
distribution are not as spatially precise using the best available data, including MSY is the greatest harvest rate over an
as data for bald eagles. We will manage reporting data from permittees, data indefinite period that does not produce
take of golden eagles according to from post-delisting monitoring (for bald a decline in the number of breeding
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thresholds set at the Bird Conservation eagles), WEST surveys (for golden adults in the population.
Region (BCR) level because the only eagles), the Breeding Bird Survey, and For a number of reasons (outlined in
range-wide estimates available for fall and winter migration counts to the following discussion) we intend to
golden eagles are BCR-scale population assess the status of eagle populations initially cap permitted take of bald
estimates. BCRs are ecologically distinct and adjust permitting thresholds on an eagles at 5% estimated annual
regions in North America with similar ongoing basis as appropriate. productivity. This approach is
bird communities, habitats, and In our June 5, 2007, proposed rule, we consistent with the recommendations
resource management issues. Developed stated that our preliminary analysis made by Millsap and Allen (2006) for

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permitting take of various raptor species addition to the removal of an individual preserve the inherent right of American
for falconry purposes. For golden eagles from the population. Therefore, we Indians to express and exercise their
west of 100 degrees West longitude, believe that caps should be no less traditional religions, including but not
including in Alaska, we will initially conservative than recommended for limited to, access to sites, use and
implement this rule only insofar as falconry take. possession of sacred objects, and the
issuing take permits based on levels of The lower take thresholds also reflect freedom to worship through
historically authorized take, safety the cultural significance of both species. ceremonials and traditional rites.
emergencies, and take permits designed Cultural significance is not limited to If emergency and Native American
to reduce ongoing mortalities and/or Native American religious purposes, but religious needs can be met, the issuance
disturbance. Future projects seeking encompasses a broad cultural regard for criteria further provide that
programmatic permits would need to both species. Although collected by programmatic permit renewals are given
minimize their own take of golden some Native American tribes for third priority. Projects to promote and
eagles to the point that it is unavoidable ceremonial purposes, the overall maintain public health and safety have
and also reduce take from another cultural value placed on bald eagles and fourth priority. For golden eagle nest
source to completely offset any new take golden eagles is generally quite distinct take permits, resource development and
from the new activity. Estimates of from the value of harvesting them. This recovery operations have fifth priority.
golden eagle population size in Alaska fact warrants a different, significantly Assuming those interests can be met,
are coarse, based upon even fewer data more conservative approach than for bald eagle take for other interests may
sources than in the lower 48 states, and managing game bird populations be permitted as long as total take
juvenile survival may be significantly wherein allowable take approaches authorizations do not surpass 5%
lower, so management would therefore MSY. estimated annual productivity for the
need to be conservative. In addition, We intend, through a structured regional bald eagle population. Initially,
McIntyre et al. (2008) suggested that coordination process with States and until we have data to show that golden
conservation strategies for migratory tribes, to develop monitoring and eagles can withstand additional take, we
golden eagles require a continental research adequate to both resolve will issue permits at historically-
approach. current uncertainties in the data and to
authorized take levels under existing
For golden eagles east of 100 degrees provide enhanced ability to detect the
permits, for emergency take, and for
West longitude, we will not issue any effects of the permit program. If, after
programmatic take (west of 100 degrees
take permits unless necessary to implementation for a time period
West longitude). If, in the future, data
alleviate an immediate safety commensurate with the normal
and modeling suggest golden eagle
emergency. We do not have enough data population cycles of the eagle, data then
populations can support additional take,
on rates of golden eagle mortality in the indicate take thresholds can be
we would, in accordance with the
eastern U.S. to issue programmatic take increased in certain regions, we will
prioritization criteria, begin to authorize
permits. increase thresholds accordingly to allow
golden eagle take at up to 1% of annual
Our modeling showed there would be more take. One factor that should allow
negative effects to the floater portion of us to increase take thresholds in some productivity, unless information
the bald eagle population (using regions for both species is the available at that time demonstrates that
population trend data from Florida) at c implementation of advanced higher levels of take can be supported
MSY and even some minor effects with conservation measures through (following Millsap and Allen 2006).
setting take at 5% of estimated annual programmatic permits to reduce ongoing The Service’s Regional Directors each
productivity. Floaters, for which take that is currently unauthorized. (See will be responsible for developing a
monitoring is rarely conducted, serve to our discussion below under structured allocation process consistent
buffer populations from decline in times ‘‘Programmatic Permits.’’) For more with the rule’s prioritization criteria to
when productivity does not offset detailed discussion of population be implemented in each Service Region
mortality, and also serve to provide a modeling and permitting thresholds, if there is evidence that demand for take
buffer for unforeseen effects to please see our final environmental will exceed take thresholds for either
populations. Importantly, the models assessment of this action, available on species of eagle.
did not factor in the cumulative impacts our website at Because we need, at least initially, to
that were discussed in the DEA. migratorybirds/baldeagle.htm. limit take permits for golden eagles to
Furthermore, the lack of annual To address the possibility that historically-authorized take levels, we
monitoring to ensure we are not having demand exceeds our scientifically-based will use the prioritization issuance
a negative effect on populations, take thresholds, the final regulation criteria from this rule to guide permit
particularly when the thresholds we are contains permit issuance criteria to decisions with regard to allocating all
establishing would be in effect for five ensure that requests by Native golden eagle take permits. For example,
years, compels us to adopt the more Americans to take eagles from the in Service Region 2, the Service has
conservative approach. Some wild—where the take of live, wild issued permits to take 28 golden eagles
commenters, including eagle experts in eagles is absolutely necessary to meet per year on average from 2002 – 2007
various parts of the U.S. believe the the religious purposes of the tribe, as under the various permit types that
DEA’s population numbers and survival opposed to the use of feathers and parts allow take (e.g., scientific collecting,
rates for bald eagles may have been too that may be obtained from the National depredation, Native American religious
high for some areas of the country. Eagle Repository—are given first purposes, etc.). On average, 23 of the
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Additionally, the caps recommended priority over all other take, except as golden eagles were taken for Native
in Millsap and Allen were in the context necessary to alleviate safety American religious purposes. If next
of falconry, where removal of birds from emergencies. (Permit regulations year, the demand from qualified Native
the population has no associated governing take and possession of eagles Americans increases to 28, we will issue
impacts to habitat, whereas many by Native Americans are set forth in 50 all the available take permits (28) to
permits issued under both these new CFR 22.22) The American Indian Native Americans—unless there is a
regulations will have long-term or Religious Freedom Act (42 U.S.C. 1996), need to take eagles to alleviate a safety
permanent habitat-related impacts in sets forth Federal policy to protect and emergency (to protect either eagles or

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Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations 46841

people from physical harm or death), in public and are adequately protecting declines as the result of the
accordance with the prioritization order. eagles, we will require permittees to authorizations granted through these
A wide variety of activities, including provide basic post-activity monitoring regulations. However, it is also possible
various types of development, resource (described below) by determining that external factors could arise that
extraction, and recreational activities whether the nest site, communal roost, negatively affect eagle populations.
near sensitive areas such as nesting, or important foraging area continues to Whatever the cause, in order to ensure
feeding, and roosting sites, can disrupt be used by eagles for up to three years that take is compatible with the
or interfere with the behavioral patterns following completion of the activity for preservation of the bald or golden eagle,
of bald eagles. We developed National which the permit was issued, depending we will not issue permits for take within
Bald Eagle Management Guidelines on the form and magnitude of the a regional eagle population without
(NBEMG or Guidelines) as a tool for anticipated take and the objectives of sufficient data indicating the take will
landowners, project proponents, and the the associated conservation measures. not result in a population decline.
general public engaged in activities in Where an activity is covered by a Programmatic permits. The June 2007
the vicinity of bald eagles. The NBEMG management plan that establishes proposed rule distinguished between
are available at monitoring protocols (e.g., an airport lethal and non-lethal take (e.g.,
migratorybirds.baldeagle.htm. The Wildlife Hazard Management Plan), the disturbance), and proposed that lethal
NBEMG address potential negative permit may specify that monitoring take would be authorized only if it was
effects of human activities on bald shall be conducted according to the pre- unavoidable even when Best
eagles, based on observed bald eagle existing management plan. Management Practices (BMPs) were
behavior, and provide guidance on what We will use reporting data, as well as followed. We revised this concept to
types of activities are likely to cause supplemental data we collect from some remove the distinction between lethal
bald eagle disturbance at varying permittees’ project areas, to ascertain and non-lethal take, and replace it with
distances to nests, communal roosts, how the activity actually affected the a distinction between individual or
and foraging areas, and how to avoid eagles in the area. With this ‘‘one-time’’ 1 take versus programmatic
such disturbance. information, we may be able to adjust take. A programmatic permit will be
We intend to use the Draft U.S. Fish take thresholds if take does not occur. available to industries or agencies
and Wildlife Service Raptor The report data also will help us to undertaking activities that may disturb
Conservation Measures (soon to be assess how likely it is that future or otherwise take eagles on an on-going
released for public notice and comment) activities will result in loss of one or operational basis. We are defining
as interim guidance for golden eagle more eagles, a decrease in productivity ‘‘programmatic take’’ as ‘‘take that (1) is
disturbance, until species-specific of bald or golden eagles, and/or the recurring, but not caused solely by
guidance can be developed. When permanent abandonment or loss of a indirect effects, and (2) occurs over the
referring to both the NBEMG and the nest site, communal roost site, or long term and/or in a location or
U.S. Fish and Wildlife Raptor important foraging area. The outcome of locations that cannot be specifically
Conservation Measures in this disturbance permits, recorded in this identified.’’ The second criterion is the
rulemaking document, we refer to both way, may allow us to recalibrate the one that distinguishes programmatic
documents together as ‘‘guidelines’’ number of annual permits available in a take from any other take that has
with a lower case ‘‘g.’’ Service Region, and to refine indirect effects that continue to cause
By adhering to the guidelines, recommendations in future versions of take after the initial action. It is the key
landowners and project proponents the guidelines regarding buffer factor that makes programmatic take
should be able to avoid eagle distances, timing of activities, and other programmatic.
disturbance most of the time. If avoiding practices that minimize take of eagles. We define ‘‘programmatic permit’’ as
disturbance is not practicable, the Although the information we will ask ‘‘a permit that authorizes programmatic
project proponent may apply for a take permittees to provide is relatively take. A programmatic permit can cover
permit. A permit is not required to basic—whether eagles are observed at other take in addition to programmatic
conduct any particular activity, but is the nest, roost site or foraging area—we take.’’ We can issue programmatic
necessary to avoid potential liability for realize that reporting will not always be permits for disturbance as well as take
take caused by the activity. accurate. In addition to errors, some resulting in mortalities, based on
Disturbance may also result from permittees may (unjustifiably) be implementation of ‘‘advanced
human activity that occurs after the concerned about law enforcement and conservation practices’’ developed in
initial activities (e.g., residential may under-report take without fully coordination with the Service.
occupancy or the use of commercial understanding that the take has been ‘‘Advanced conservation practices’’
buildings, roads, piers, and boat- authorized by their permits and thus is (ACPs) refers to scientifically-
launching ramps). In general, we do not not a violation of the law. Overall, supportable measures that are approved
intend to issue permits for routine however, we expect most permittees by the Service and represent the best-
activities such as hiking, driving, will make a good-faith effort to honestly available techniques to reduce eagle
normal residential activities, and report eagle use of the area, resulting in disturbance and/or ongoing mortalities
ongoing use of existing facilities, where a substantial body of useful information to a level where remaining take is
take could occur but is unlikely. New we do not otherwise have the resources unavoidable. The Federal Highway
uses or uses of significantly greater to collect. Administration is an example of an
scope or intensity may raise the Along with annual report data, we
agency for which this streamlined
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likelihood that eagles will be disturbed, will periodically assess overall

and as such could require authorization population trends of both species of 1 By describing the standard (non-programmatic)
for take under these regulations. eagles, taking into consideration the permit as authorizing ‘‘individual’’ or ‘‘one-time’’
To assess whether the Service’s cumulative effects of other activities take, we do not mean to infer that only one eagle
predictions regarding the likelihood of that take eagles and eagle mortalities can be taken under a standard permit, or that if
more than one eagle is taken, the take must occur
disturbance are generally sound, and due to other factors. Based on the simultaneously. We use the term, ‘‘one-time’’ for
thereby ensure that permit requirements modeling we will use to set take lack of a better word to refer to take is quantifiable
are not unnecessarily burdensome to the thresholds, we do not expect population and of a specified amount.

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46842 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations

approach may benefit the agency and authorized levels of take from on-going locations and during specific project
eagles. A programmatic take permit may operations will continue to be phases.
be appropriate for industries such as the authorized in the future. Programmatic Although we define ‘‘programmatic
energy and transportation providers, permit renewals will have third priority, take’’ as take that results from an
among others, if they elect to work with after (1) safety emergencies, and (2) take activity and not from the activity’s
the Service to develop ACPs. The ACPs necessary to meet Native American indirect effects, many activities that
and plan specifications will then religious needs, but before (4) non- result in programmatic take will also
become permit conditions, along with emergency public health and safety. have adverse indirect effects on eagles.
monitoring and reporting requirements A programmatic permit is optional. Therefore, most programmatic permits
more comprehensive than those for Entities that engage in programmatic will authorize other take in addition to
individual take permits. Programmatic take and who wish to obtain the programmatic take, to cover the
permits are designed to provide a net authorization for the take can choose indirect effects. The Service will
benefit to eagles by reducing ongoing whether to apply for the programmatic consider indirect effects of activities
unauthorized take. Accordingly, take permit or apply for standard under both types of permits, first when
programmatic permit conditions will be permits for individual takes. One deciding whether to issue the permit,
designed to provide ongoing long-term advantage of opting for the and again when establishing
benefits to eagles. Recipients of programmatic permit is it would remove conservation measures. Because
programmatic permits must perform liability comprehensively. It also lessens programmatic permits are designed to
more rigorous monitoring than is concern about whether additional take reduce take to the level where it is
required for standard, individual take can be authorized under take thresholds unavoidable, if there are ACPs that will
permits. in the future. The disadvantage is that reduce take caused by indirect effects,
Because the requirements for the process of working with the Service those ACPS will be required conditions
obtaining programmatic take to develop the permit conditions is of the programmatic permit.
authorization are designed to reduce likely to be time-consuming and more As further illustration of the
take, the take authorized by expensive than seeking a standard differences between programmatic and
programmatic permits for ongoing permit. Also, implementation of the standard permits, and the need to
activities will not be subtracted from ACPs will in most cases require consider indirect effects under both, the
regional thresholds, nor would they be substantial resources. In the long term, following are two distinct activities that
subject to the prioritization criteria. The however, depending on the scale of an each directly take eagles and also have
reductions in take that result from applicant’s operations, programmatic indirect effects that continue to take
implementation of new measures to permits should be the most economical eagles; however, only one
reduce take from ongoing activities approach for authorizing long-term or programmatically takes eagles and can
under programmatic permits may allow wide-ranging take of eagles. be covered with a programmatic take
the Service to increase take thresholds A programmatic permit is not permit.
and make additional permits available available where the only long-term take First, a large housing development
for other activities likely to result in is due to indirect effects from an initial provides buffers around each nest on
take. action. Programmatic take is the direct the property as recommended by the
Applicants for programmatic permits result of ongoing operations. The Service to avoid disturbing eagles.
for new activities will be subject to the However, due to various constraints, the
following are examples of programmatic
same rigorous standards and may also developer is unable to avoid impacts to
be required to apply conservation 1. A railroad that routinely strikes the eagles’ prey base, resulting in take
measures at other sites (possibly owned eagles feeding on carcasses on the of eagles in the form of lost productivity
or operated by a third party) where tracks. or abandonment of nesting territories. In
eagles are taken by existing operations. 2. Utilities that kill eagles through this case, the construction of the
The purpose of the off-site measures collisions and electrocutions from development is not ongoing. What
would be to reduce take to a level that contact with power lines. continues are the indirect effects of
offsets some or all of the new take from 3. Ongoing disturbance at a port due depriving eagles of their prey base.
the applicant’s activity. The degree to to vessel traffic and/or other port Therefore, the take caused by the
which the applicant would be required operations. housing development is not
to offset the take will depend on the 4. Construction and maintenance of programmatic take, and to be
status of eagle populations in the region; highways throughout a State or other authorized, would have to be covered
if populations of the particular eagle jurisdiction that routinely disturbs under a standard permit.
species are robust, the Service may not eagles. Our second example is a company
require any off-site reductions in take. 5. Airports that periodically (but interested in siting a wind-power
However, if regional populations cannot immediately upon discovery) need to facility. We are currently unaware of
absorb significant new take, the Service remove eagle nests to protect human any measures that would eliminate
may require the project proponent to and eagle safety. eagle mortalities when turbines are sited
completely offset the effects of the new in golden eagle habitat (including
activity with reductions in take Below are examples of what is not migration corridors). If ACPs can be
elsewhere. programmatic take: developed to significantly reduce the
To encourage potential applicants to 1. Construction of a boat ramp, with take, the operator may qualify for a
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seek programmatic permits (versus or without long-term indirect effects programmatic take permit, since the
standard permits), the regulations that take eagles (boat traffic). ongoing mortalities are the direct result
contain issuance criteria that give 2. Construction of a port when eagles of the operation of the turbines. In
priority to those seeking renewal of are disturbed by pile driving and other addition to measures designed to reduce
programmatic permits. These criteria construction activities. take directly, ACPs should also include
will provide programmatic permittees 3. Construction of a single highway, measures to reduce indirect effects that
with some assurance (though never an or multiple highways, where eagle take contribute to the level of take, such as
absolute guarantee) that previously can be projected to occur at particular ensuring the project site does not

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provide enhanced habitat for small activity, including the area where eagles Application Evaluation Process. An
mammals that eagles feed on, which are likely to be taken; initial consideration is whether take is
would attract eagles to the area and 4. For activities that are likely to likely to occur. Ideally, most potential
increase the likelihood of collision with disturb eagles (versus other take), applicants whose activities will not
turbines. a. Maps and digital photographs of the likely result in take will be dissuaded
Permit application process. Permits eagle nests, foraging areas, and from applying for a permit after
are available to Federal, State, concentration sites where eagles are voluntary technical consultation with a
municipal, or tribal governments; likely to be disturbed by the proposed Service field biologist. If, after an
corporations and businesses; activity (including the geographic application is submitted, the Service
associations; and private individuals, all coordinates of the activity area and determines that take is not likely to
of which are subject to the prohibitions important eagle-use area(s) and the occur, we may issue the permit (if
of the Eagle Act. Persons and distance(s) between those areas); permit issuance criteria are met);
organizations that obtain licenses, b. Whether or not the important eagle- however, if we do not consider take
permits, grants, or other such services use area(s) is visible from the activity likely to occur, we will not subtract the
from government agencies are area, or if screening vegetation or authorized take from Regional take
responsible for their own compliance topography blocks the view; and thresholds—unless follow-up
with the Eagle Act and should c. The nature and extent of existing monitoring reveals that it did actually
individually seek permits for their activities in the vicinity that are similar occur.
actions that may take eagles. to the proposed activity, and the Our primary consideration when
Government agencies must obtain distance between those activities and issuing permits under this regulation is
permits for take that would result from the important eagle-use area(s); whether the take would be compatible
agency actions that are implemented by 5. The date the activity will start and with the preservation of the bald eagle
the agency itself (including staff and is projected to end; and the golden eagle, including
6. An explanation of what interests(s) consideration of the cumulative effects
contractors responsible for carrying out
in a particular locality will be protected of other permitted take and additional
those actions on behalf of the agency).
by the take, including any anticipated factors affecting eagle populations.
The final regulations do not specify benefits to the applicant or to the
what information an applicant must When evaluating the take that may
public; result from an activity for which a
submit to apply for an eagle take permit 7. An explanation of why avoiding the
or to file an annual report, other than permit is sought (e.g., residential
take is not practicable, including at a development), we will consider the
that he or she must submit a complete minimum, a description of why take effects of the preliminary activity
application form, including any cannot be avoided after taking into (construction) as well as the effects of
required attachments to apply for a consideration, relative to the magnitude the foreseeable ongoing future uses
permit, and for annual reporting, the of the impacts to eagles, (1) the cost of (activities associated with human
permittee must submit all the the remedy comparative with proponent habitation). The impacts and threshold
information required on the report form. resources; (2) existing technology; and distances that we will consider will not
By avoiding codification of application (3) logistics in light of overall project be limited to the footprint of the initial
and reporting requirements, we can purposes; or activity if it is reasonably foreseeable
revise application and reporting 8. For programmatic take, why take is that the activity will lead to adverse
requirements without undergoing the unavoidable; and indirect effects on eagles. For example,
time-consuming rulemaking process. 9. A description of measures proposed when evaluating the effects of
However, the public will have the to offset the detrimental impact of the expanding a campground, in addition to
opportunity to provide input on the proposed activity on the regional eagle considering the distance of the
content of these forms. All forms must population. expansion from important eagle-use
be approved by the President’s Office of The Service’s Ecological Services areas, we would consider the effects of
Management and Budget (OMB) every Field Offices may provide technical increased pedestrian and motor traffic to
three years, and as part of that process, assistance prior to development of and from the expanded campground. In
all new forms and all changes to forms permit applications. In many cases, the many cases, the potential for take could
are subject to public review via a series Service may be able to recommend be greater as a result of the activities
of notices in the Federal Register. The measures to reduce the likelihood of that follow the initial project. For
forms we will use when this rule takes take, negating the need for a permit. The example, the installation of a boat ramp
effect were subject to the OMB and technical assistance that we provide 500 feet from an important eagle
public review process while this rule from the field will reduce the number of foraging area may not disturb eagles
was being developed. applications to our permit offices for during the construction phase, but the
The new Service permit application activities that (1) are unlikely to take ensuing high levels of boat traffic
Form 3-200-71 requires the following eagles, or (2) can practicably be through the area during peak feeding
information from the applicant as part modified to avoid the take. The Service times may cause disturbance. Trail
of the application process (in addition may elect to conduct an on-site construction 400 feet from a nest is
to the requirements of § 13.12(a) of this assessment to determine whether the generally unlikely to take eagles, but if
subchapter, which apply to all types of proposed activity is likely to take eagles the trail will be open to off-road vehicle
permits issued by the Service): and whether reasonable modifications use during the nesting season, we would
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1. A detailed description of the to the project will alleviate the need to consider the impacts of the
activity that will cause the disturbance probability of take. In addition, State vehicular activity as part of the impacts
or other take of eagles; and tribal natural resources agencies of the trail construction.
2. The species and number of eagles may also be able to provide information If demand will exceed regional take
that will be taken and the likely form of pertaining to the number and location of thresholds (see above discussion under
that take; eagles, eagle nests and other important Population Assessment and Take
3. Maps and digital photographs that eagle-use areas within the area Thresholds), the permit office will need
depict the locations of the proposed potentially affected by the activity. to evaluate how the proposed activity

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46844 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations

should be prioritized in accordance TCP. Eagles also have cultural are completed, the permittee will
with the Regional structured allocation significance to the wider American remain obligated to carry out those
process established to ensure the public, with the result that the Service measures necessary to mitigate for take
Service adheres to the prioritization will need to consider the concerns of that has occurred up to that point.
issuance criteria set forth in § 22.26(e) any party with cultural interest in Permittees must allow Service
and § 22.27(d)(5) of the regulations. eagles, eagle nests, and eagle habitat personnel, or other qualified persons
We must then consider whether the under Section 106 of the National designated by the Service, access to the
take is associated with the permanent Historic Preservation Act (NHPA) (16 areas where take is anticipated, within
abandonment or loss of a nest site, U.S.C. 470). (For more discussion on the reasonable hours and with reasonable
territory, or other important eagle-use NHPA, see our discussion in the notice from the Service, for purposes of
area. In reality, this evaluation would be Required Determinations section below monitoring eagles at the site(s).
tied to our primary consideration of under National Historic Preservation Although we do not anticipate the
whether the take would be compatible Act.) necessity for ongoing monitoring by the
with the preservation of the bald eagle Permit Conditions. Under the Service Service at the majority of permit
or the golden eagle because take Mitigation Policy (46 Fed. Reg. 7644- locations, we will use the data collected
associated with the loss of an important 7663, January 23, 1981) and the from limited site visits to reevaluate, as
eagle-use area will generally have larger President’s Council on Environmental appropriate, the recommendations we
population impacts than a single, one- Quality regulations (40 CFR Part provide in the guidelines as well as
time disturbance. Depending on the 1508.20 (a-e)), mitigation includes: through case-by-case technical
magnitude of the impacts, the potential avoidance, minimization, rectification, assistance to ensure that eagles are
take could exceed the thresholds we reduction over time, and compensation adequately protected without
establish as necessary to safeguard eagle for negative impacts, in this case to bald unnecessarily hindering human activity.
populations. If so, we must deny the eagles and golden eagles. Under these If a permit is revoked or expires, the
permit unless the applicant commits to regulations, all permittees will be permittee must submit a report of
compensatory mitigation measures that required to avoid and minimize the activities conducted under the permit to
would offset the take to the level where potential for take to the degree the Service’s Regional Migratory Bird
it is compatible with the preservation of practicable, and for programmatic Permit Office within 60 days of the
eagles. permits, to the point where take is revocation or expiration. The permit
Additional evaluation criteria include unavoidable. provides take authorization only for the
whether: (1) the take is necessary to Depending on the scale of the take, activities set forth in the permit
protect a legitimate interest in a and the particular circumstances, the conditions. If the permittee
particular locality; (2) the take is Service may require rectification (taking subsequently contemplates different or
associated with, but is not the purpose corrective action) and/or reduction over additional activities that may take
of the activity; (3) the take cannot time from some permittees. However eagles, he or she must contact the
practicably be avoided (or for additional compensatory mitigation will Service to determine if a permit
programmatic authorizations, the take is be required only (1) for programmatic amendment is required to retain the
unavoidable); and (4) the applicant has take and other multiple take level of take authority desired.
minimized impacts to eagles to the authorizations; (2) for disturbance Additionally, the validity of all permits
extent practicable, and for programmatic associated with the permanent loss of a issued under these regulations is
authorizations, the taking will occur breeding territory or important conditioned on the permittee’s
despite application of Advanced traditional communal roost site; or (3) as compliance with all applicable Federal,
Conservation Practices developed in necessary to offset impacts to the local tribal, State, and local laws and
coordination with the Service. area population. Because our take regulations governing the activity. Thus,
Before issuing a permit, we will permit thresholds are population-based, if conduct of the activity violates State,
consult with federally-recognized tribes we have already determined before tribal, or other laws, the Federal
if issuance of the permit might affect issuing each individual take permit that authorization granted by this permit is
traditional tribal activities, practices, or the population can withstand that level invalid.
beliefs. The Service’s obligation to of take. Therefore, compensatory We are defining one term in § 22.26
consult on a government-to-government mitigation for one-time, individual take that will apply only to the regulations
basis with Native American tribes is set permits will not typically be necessary in that section and not to eagle permits,
forth in Executive Order 13175, for the preservation of eagles. This generally. ‘‘Eagle’’ under § 22.26 means
Consultation with Indian Tribal approach is based on our analysis of ‘‘a live bald eagle (Haliaeetus
Governments (Nov. 6, 2000) and the regional population thresholds, and leucocephalus), live golden eagle
Service’s own ‘‘Native American does not preclude a State or tribe from (Aquila chrysaetos), a bald eagle egg, or
Policy’’ ( requiring additional mitigation for a golden eagle egg.’’ Eagle take under
nativeamerican/Graphics/ impacts authorized by a State or tribal § 22.26 is limited to live birds and eggs,
Native_Amer_Policy.pdf). The areas permit or authorization within its and excludes non-living specimens,
where eagles would be taken have the jurisdiction. However, we intend to feathers, parts, and nests.
potential of being regarded as areas of work with States and tribes to ensure We are in the process of developing
traditional religious and cultural that the total mitigation required of implementation guidance to address
importance to Indian tribes, commonly applicants by the Service and the State procedural aspects of the permitting
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referred to as Traditional Cultural and/or tribe does not exceed what is process. The guidance will cover time
Properties (TCP). Eagles are highly appropriate to offset impacts to eagles frames for permit issuance;
significant species for Native American from the proposed activity. identification of project impacts;
culture and religion, and as such they These regulations contain general appropriate mitigation measures;
might be viewed as contributing conditions that will apply to all permits monitoring; coordination with States,
elements to a TCP. Take of one or more we issue under this section. If the tribes, and other Federal agencies;
eagles from a TCP area could potentially permit expires or is suspended or compliance with environmental
be considered an adverse effect to the revoked before the required measures reviews; and other specifics of the

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permit process, in order to ensure mitigation measures that more than information to evaluate many of the
consistency in implementation offset the impacts of removing the nest, factors noted above.
throughout the Service. We will work creating a net benefit to eagles. For Where practicable, nests should be
with interested States and tribes in example, we may issue a permit to take relocated, or a substitute nest provided,
developing the implementation a nest where necessary to carry out a in a suitable location within the same
guidance, and the general public will habitat restoration project that will territory from which they were removed
also have the opportunity to provide enhance habitat for eagles. Also, a to provide a viable nesting site for
input once we make a draft available homeowner could potentially obtain a breeding purposes of eagles within that
through a notice in the Federal Register. permit to remove one of multiple nests territory, unless such relocation would
in a territory, one which has not been create a similar threat to safety. Permits
Eagle Nest Take Under 50 CFR 22.27
used for several years, if compensatory may also be issued to remove nests
Some eagles nest on or near electrical mitigation measures will produce a net when it is determined by the Service
transmission towers, communication benefit to eagles (e.g., the landowner that the nests cannot be relocated.
towers, airport runways, or other donates a permanent conservation We may issue programmatic nest take
locations where they endanger easement to protect the riparian area permits under this section if the
themselves or create a hazard to where the nesting pair and wintering permittee commits to comprehensive
humans. Regulations under this section, eagles traditionally forage). The scale of measures (ACPs) to reduce the need for
§ 22.27, authorize removal and/or mitigation will depend on the degree of take. For example, programmatic
relocation of active and inactive eagle biological impact. To remove a nest authorization could be an appropriate
nests in what we expect to be the rare from what is apparently the only viable means of authorizing take at airports
cases where genuine safety concerns nest site in a territory would have a that, despite scientifically-based
necessitate the take. Examples include: greater biological impact than in the measures developed in coordination
(1) a nest tree that appears likely to example just provided, and more with the Service to reduce take, cannot
topple onto a residence; (2) at airports mitigation might be necessary in order completely avoid some take in the form
to avoid collisions between eagles and to realize a net benefit to eagles.
aircraft; and (3) to relocate a nest built of disturbance and emergency nest
Where the nest would be taken for
within a reservoir that will be flooded. removal (when nests are discovered
purposes other than to alleviate an
Compensatory mitigation will despite diligent efforts to prevent eagles
immediate threat to safety, two
sometimes but not always be required from occupying the area). Authorizing
additional criteria must be met before
when nests must be removed for safety programmatic nest take, where such
we may issue the permit. First, we may
emergency purposes. comprehensive measures are being
not issue the permit unless alternative
This permit will also be available to taken by airports to reduce take, will
suitable nesting and foraging habitat is
take inactive nests only, in three help to minimize ‘‘last minute’’ nest
available. Second, compensatory
additional types of situations. First, we removal emergencies, thus providing
mitigation is required in every case.
may issue a permit to remove an Except for applications associated better protection from liability for the
inactive eagle nest where, although the with safety emergencies, prior to airports and enhanced protection of
presence of the nest does not create an authorizing nest removal, we will eagles.
immediate safety emergency, the take is review the availability of potential We envision that there will be a need
necessary to ensure public health and alternative suitable habitat (nest for permits that combine the two types
safety. For purposes of this regulation, substrate, foraging areas, etc.) and the of authorizations we are creating
‘‘necessary to ensure public health and distance to those areas, in order to through this regulation (§ 22.26 and
safety’’ means ‘‘required to maintain reasonably assess the likelihood of total § 22.27), and perhaps additional
society’s well-being in matters of health loss of the territory. When known, we authorizations as well. In such cases, we
and safety.’’ For example, if the take will consider such factors as the number will usually issue one permit with dual
would be compatible with the of nests in a particular breeding pair’s (or multiple) authorizations. For
preservation of the eagle, and there is no nesting territory and the last known date example, to ensure safety at airfields, we
practicable alternative to nest removal, when the nest under consideration for would evaluate the airfield’s wildlife
a permit could be issued under this take was used, in order to try to assess hazard management plan to determine if
section to remove an inactive eagle nest the relative value of the nest to the it uses a progressive approach that starts
located in the only feasible site for a breeding pair. We will also consider the with measures to reduce the presence of
hospital that is needed in a particular density of surrounding territories and features attractive to eagles and ends
locality. the nests within those territories to with nest removal as a final option. If
Second, a permit may be issued to evaluate the ability of the area to the management-plan components are
take an inactive nest that is built on a support a displaced pair and assess adequate for protection of eagles, they
human-engineered structure and creates whether the loss of a particular nest may would then become part of the permit
a functional hazard that renders the have negative local population impacts. conditions. The programmatic permit
structure inoperable for its intended For overall permit management, we will will not require re-application each
use. For example, recently in Alaska, a consider local-area population effects year, but may be valid for up to 5 years,
pair of bald eagles nested on a crane that within the species-specific natal at which time the applicant could
was temporarily not being used by the dispersal distances (43 miles for bald submit a request for renewal. There are
crane operator. Under these regulations, eagles, 140 miles for golden eagles). annual reporting requirements and an
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after waiting out the eagles’ breeding However, we believe it would be too option for the Service to re-evaluate the
cycle, the crane operator could be burdensome to ask the proponent to permit conditions if more take is
issued a permit to remove the inactive provide data on that large a scale. We occurring than anticipated. A permit
nest and reclaim the use of his crane. have found, in implementing the such as described would be issued
Finally, the nest could be removed for resource-recovery permit for take of under the multiple authorities of
an activity that will provide a net inactive golden eagle nests (50 CFR existing § 22.23 (as revised by this
benefit to eagles, or for any purpose if 22.25), that data within a 10-mile radius rulemaking to extend permit tenure),
the permittee conducts or secures of the nest provides us with adequate new § 22.26, and new § 22.27.

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As with other eagle take permits, nest § 22.3, the section of eagle permit area, or communal roost site that eagles
take permits issued under § 22.27 will regulations that defines terms and is rely on for breeding, sheltering, or
be subject to the take thresholds applicable to all eagle permit feeding, and the landscape features
discussed earlier and more fully in the regulations in part 22. We amend the surrounding such nest, foraging area, or
final environmental assessment of this regulatory definition of ‘‘take,’’ to add roost site that are essential for the
action. the term ‘‘destroy,’’ to apply to bald continued viability of the site for
Similar to our approach to § 22.26 eagle nests, to ensure consistency with breeding, feeding, or sheltering eagles.’’
and some other recent Service the Eagle Act’s intention to prohibit This term refers to the particular areas,
regulations, we have not codified the unpermitted eagle nest destruction. We within a broader area where human
application requirements within the define ‘‘eagle nest’’ as a ‘‘readily activity occurs, where eagles are more
regulation so we can more easily modify identifiable structure built, maintained, likely to be taken (e.g., disturbed) by the
them based on new information and or used by bald eagles or golden eagles activity because of the higher
public input gathered through the for breeding purposes.’’ This definition probability of interference with
triennial OMB information collection is based on, and replaces, the existing breeding, feeding, or sheltering
process (see above discussion under § ‘‘golden eagle nest’’ definition, in order behaviors at those areas.
22.26, Permit Application Process). The to apply with respect to both species. To clarify terms used within the
current application form we will use for We are removing the existing definition definition of ‘‘important eagle-use area,’’
this regulation requires applicants to of ‘‘golden eagle nest’’ from the list of we define ‘‘foraging area’’ to mean ‘‘an
submit the following information: definitions. area where eagles regularly feed during
(1) The number of nests proposed to Similarly, this rule replaces the old one or more seasons.’’ We define
be taken, whether the nest(s) is a bald definition ‘‘inactive nest’’ with a new ‘‘communal roost site’’ as ‘‘an area
eagle or golden eagle nest, and whether definition that differs primarily insofar where eagles gather repeatedly in the
the nest(s) is active or inactive; and if as it includes bald eagles as well as course of a season and shelter overnight
known, whether it has been active in the golden eagles. The new definition reads: and sometimes during the day in the
5 preceding breeding seasons. ‘‘a bald eagle or golden eagle nest that event of inclement weather.’’ Not all
(2) Why the removal of the nest(s) is is not currently being used by eagles as foraging areas and communal roost sites
necessary, including the interest to be determined by the continuing absence are important enough such that
served in a particular locality; of any adult, egg, or dependent young at interfering with eagles at the site will
(3) A description of the property, the nest for at least 10 consecutive days cause disturbance (resulting in injury or
including maps and digital photographs immediately prior to, and including, at nest abandonment). Whether eagles rely
that show the location of the nest in present. An inactive nest may become on a particular foraging area or
relation to buildings, infrastructure, and active again and remains protected communal roost site to that degree will
human activities; under the Eagle Act.’’ All nests are
depend on a variety of circumstances—
(4) The location of the property, protected by the Eagle Act, whether
most obviously, the availability of
including latitude and longitude; active or inactive, and the take of any
alternate, suitable sites for feeding or
(5) The length of time for which the nest requires a permit. The reason for
permit is requested, including beginning distinguishing between active nests and
inactive nests and for defining the term ‘‘Territory’’ is defined as ‘‘a defended
and ending dates;
(6) A statement indicating the ‘‘inactive nest’’ is because the new nest- area that contains, or historically
intended disposition of the nest(s), and take-permit regulation, as well as contained, one or more nests within the
if active, the nestlings or eggs; existing regulations for take of golden home range of a mated pair of eagles.’’
(7) A calculation of the bald eagle or eagle nests for resource development ‘‘Cumulative effects’’ means ‘‘the
golden eagle area nesting population, and recovery operations (50 CFR 22.25), incremental environmental impact or
including an appropriately-scaled map regulate nests differently depending on effect of the proposed action, together
or plat showing the location of each whether they are currently active or with impacts of past, present, and
eagle nest used to calculate the area inactive. Under existing § 22.25, a reasonably foreseeable future actions.’’
nesting population unless the Service permit may be issued only for inactive We define ‘‘indirect effects’’ as ‘‘effects
has sufficient data to independently nests. Under the regulations being for which a proposed action is a cause,
calculate the area nesting population. finalized by this rulemaking, a permit and which may occur later in time and/
(Not applicable for immediate safety can be issued for an active nest only if or be physically manifested beyond the
emergencies.) the location of the nest poses an initial impacts of the action, but are still
(8) A description of the avoidance, immediate threat to safety. This reasonably likely to occur.’’
minimization, and mitigation measures definition is intended to be applied only The regulations include the
the applicant proposes to reduce take to questions of whether or not a nest requirement that an applicant have
and offset the detrimental impact of the may be taken with reduced risk of avoided and minimized impacts to
permitted activity. (Not applicable for associated take of birds. It is not eagles to the maximum extent
immediate safety emergencies.) intended to convey any other biological practicable. ‘‘Practicable’’ is defined as
Even though the application form status, nor will it be the only criterion ‘‘capable of being done after taking into
does not require applicants to describe for permit evaluation. consideration, relative to the magnitude
proposed mitigation measures in cases We are codifying the term ‘‘important of the impacts to eagles (1) the cost of
of safety emergencies, we may require eagle-use area’’ in these permit remedy comparative with proponent
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compensatory mitigation as a permit regulations under § 22.26 to refer to resources; (2) existing technology; and
condition if appropriate to offset the nests, biologically important foraging (3) logistics in light of overall project
detrimental impacts to eagles. areas, and communal roosts where purposes.’’ For programmatic permits,
eagles are potentially likely to be taken the comparable standard is ‘‘maximum
New and Modified Definitions Under 50 as the result of interference with degree achievable,’’ defined as ‘‘the
CFR 22.3 breeding, feeding, or sheltering standard at which any take that occurs
These regulations revise three behaviors. We define ‘‘important eagle- is unavoidable despite implementation
definitions and codify 13 new terms in use area’’ as ‘‘an eagle nest, foraging of Advanced Conservation Practices.’’

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‘‘Necessary to ensure public health with an ESA take authorization, for provide benefits to identifiable
and safety’’ is one criterion for obtaining purposes of accountability and recipients. Permits are special services
a nest removal permit, and it is a consistency, the same process and authorizing identifiable recipients to
criterion for prioritization in the procedures should be used to authorize engage in activities not otherwise
regulations for both new permit types if take under the Eagle Act regardless of authorized for the general public.
demand exceeds take thresholds. We whether it was also exempted under For the standard § 22.26 take permit
define it as ‘‘required to maintain ESA section 7. Accordingly, as part of and the § 22.27 nest take permit, we
society’s well-being in matters of health the regulations we are promulgating will assess a $500 permit application fee
and safety.’’ ‘‘Safety emergency’’ means today, we are amending the regulations and a $150 permit amendment fee. For
‘‘a situation that necessitates immediate at § 22.28 to restrict their application to programmatic permits under either
action to alleviate a threat of bodily section 7 incidental take statements permit type, the application fee is
harm to humans or eagles.’’ Safety issued prior to the date today’s rule $1,000 and the amendment fee is $500.
emergencies take precedence over take becomes effective. For any incidental While higher than many other Service
that is merely necessary to ensure take exempted under ESA section 7 that permit application processing fees,
public health and safety (as does take is authorized after the date specified in these fees are comparable to those
necessary for Native American religious DATES and that also constitutes take assessed for other migratory bird
use and renewal of programmatic under the Eagle Act, the only permit permits relative to the level of review
permits). We may issue a permit to that is available to provide Eagle Act necessary to process and evaluate an
remove an active eagle nest in a safety take authorization is the § 22.26 permit application for a permit to take eagles or
emergency, but not for any other being finalized herein. Therefore, except to remove eagle nests under the
purpose. for take authorized through ESA section authorities of the Eagle Act. 2
We are defining ‘‘programmatic take’’ 10 permits (which confer authority to Furthermore, we expect these fees to
as ‘‘take that (1) is recurring, but not take under both the ESA and the Eagle make up less than half the permit-
caused by indirect effects (2) occurs Act under the new provision at 50 CFR processing costs to the Service.
over the long term and/or in a location § 22.11), any take we authorize that is The typical permit-application
or locations that cannot be specifically associated with, but not the purpose of process will be less burdensome for the
identified.’’ We define ‘‘programmatic an activity, would be provided under applicant than the permit process under
permit’’ as ‘‘a permit that authorizes the single regulatory authority we are the ESA, since an HCP is not required.
programmatic take.’’ A programmatic finalizing today, 50 CFR § 22.26, rather Preparing an HCP can be time-
permit can cover other take in addition than 50 CFR § 22.28. consuming and is usually delegated to
to programmatic take. We can issue a professional consultant. HCPs often
programmatic permits for disturbance Revisions to Information Collection
Requirements at 50 CFR 22.4 cover large geographic areas—some
and as well as take resulting in larger than a million acres—and set
mortalities, based on implementation of This section describes the forth terms and mitigation measures
‘‘advanced conservation practices’’ requirement that Federal information designed to protect species for up to 100
developed in coordination with the collections, such as permit applications years. In contrast, the information
Service. ‘‘Advanced Conservation and report forms related to Federal required to apply for an individual
Practices’’ means ‘‘scientifically- permits, be reviewed and approved by Eagle Act permit does not include an
supportable measures that are approved the OMB. It also provides the approval extensive habitat analysis, is easier to
by the Service and represent the best- number(s) (OMB Control Numbers) for compile, and will require less
available techniques to reduce eagle the forms used to collect information information, since permits will be valid
disturbance and ongoing mortalities to a related to eagle permits. We are for no more than five years.
level where remaining take is removing the language describing the Service biologists at GS-11 to 13 grade
unavoidable.’’ average reporting burden for all the levels on the Office of Personnel
Since § 22.26 does not apply to nests collections related to eagle permits Management General Pay Schedule,
or non-living eagle parts, with regard to because that figure varies as new forms with support of GS-7 staff, would be
that section, we define ‘‘eagle’’ to mean are added or removed and we are no responsible for pre-application technical
only live eagles or eggs. This definition longer required to provide this estimate. assistance; reviewing and determining
does not apply within any regulations the adequacy of the information
Revisions to General Permit Conditions
other than § 22.26. provided by an applicant; conducting
at 50 CFR 13
Revisions to Permit Regulations at 50 any internal research necessary to verify
As part of establishing the new permit information in the application or
CFR 22.28 authorizations under 50 CFR 22.26 and evaluate the biological impact of the
On May 20, 2008, the Service 22.27, we amend 50 CFR 13.12 to add proposed activity; assessing the
published regulations creating a new the new permit types to be issued under biological impact of the proposed
permit category at 50 CFR § 22.28 to 50 CFR 22.26 and 22.27. We also amend activity on the bald or golden eagle;
provide expedited Eagle Act permits to 50 CFR 13.11(d), the nonstandard fee evaluating whether the proposed
entities authorized to take bald eagles schedule, to establish application- activity meets the issuance criteria;
through ESA section 7 incidental take processing fees (user fees) for the preparing or reviewing NEPA
statements (73 FR 29075, May 20, 2008). permits. The general statutory authority documentation; determining
That new permit category applies to to charge fees for processing consistency with other laws such as the
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past section 7 take statements as well as applications for permits and certificates
any that may have been issued after the is found in 31 U.S.C. 9701, which states 2 The notable exception is the permit-application-
rule took effect. (e.g., for take of Sonoran that services provided by Federal processing fee for take of golden eagle nests for
Desert nesting bald eagles, or if bald agencies are to be ‘‘self-sustaining to the resource recovery and development operations
eagles or golden eagles were ESA-listed extent possible.’’ Federal user-fee under 50 CFR 22.25, which is currently set at $100.
We intend to propose a regulation in the near future
in any other portion of their respective policy, as stated in OMB Circular No. A- to raise the processing fee to a level commensurate
ranges). Now that a permit is available 25, requires Federal agencies to recoup with the processing fees for the new § 22.27 nest
to authorize eagle take not associated the costs of ‘‘special services’’ that take permit.

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46848 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations

section 106 of the NHPA; coordination 42 hours to process each individual § Costs Incurred. In general, the costs
and consultation with States and tribes; 22.26 permit application, approximately incurred due to the rule would relate to
and preparing either a permit or a denial 46 hours for each § 22.27 permit the costs of assembling the necessary
letter for the applicant. To evaluate the application for take of an eagle nest, and information for the permit application,
impact of the proposed activity, Service approximately 120 hours for a permit fees, and the costs of monitoring
biologists may also need to visit the programmatic permit under either and reporting requirements associated
location to examine site-specific permit type. Therefore, an application with the permit. As explained below, it
conditions. fee of $500 will offset only about 28% is difficult to predict the number of
Programmatic permits will take of the cost to the Government of applications the Service should
considerably longer to craft and process. responding to a request for a § 22.26 and anticipate under these regulations.
We expect most industry-wide or about 25% of the cost of processing a § However, due to various factors, we
agency-wide standard practices for 22.27 nest-take-permit application. The expect that demand for eagle-take
programmatic permits would be $150 standard amendment fee will make permits will increase, from about 54
developed with the respective entities up about 27% of the Service’s costs. The authorizations per year under the ESA
and Service staff who work on policy $1,000 programmatic permit application to approximately 910 permits per year
development in the Washington Office, fee will recoup about 20% of the permit under the two new Eagle Act permit
in coordination with Service Regions. processing cost to the Service. The $500 regulations. Therefore, using the current
We anticipate that some programmatic programmatic-permit amendment fee number of authorizations issued under
permits, particularly early ones will will recoup about 33% of the cost to the the ESA as a baseline, approximately
require the Service to convene and lead Service. Although these fees are not 856 permit authorizations would be
meetings of workgroups representing high enough to allow the Service to new.
the entities seeking permits. The recoup even half the cost of issuing Some of these entities (those that are
workgroups would develop metrics for them, they are significantly higher than non-governmental) would bear the
establishing/quantifying baseline effects other permit application processing fees higher permit application fees under the
through estimates or a sampling scheme; we assess. The fees associated with Eagle Act as compared to the current fee
identify the best-available techniques these regulations must be manageable to for an ESA incidental-take permit (to
and mutually-approved standard small business owners, home owners, capture a more equitable share of the
practices for minimizing the likelihood and other members of the public who costs to the Service that would
of take of eagles; and develop standards may find a higher fee prohibitive. otherwise be borne by taxpayers),
for system or program risk analyses, although many applicants will be State,
guidance for determining reasonable Economic Analysis local, tribal, or Federal agencies, which
timeframes for completion of any A brief assessment to clarify the costs are exempt from application processing
required retro-fitting, standards and and benefits associated with this rule fees for Service permits. Costs for other
guidelines for effective monitoring follows: aspects of the permit-application
programs and reports of eagle take to the Change. This rule will provide for the process will generally be lower than
Service, and measurable criteria for authorization of activities that take bald costs associated with the ESA section 10
evaluating the implementation and eagles and golden eagles under the Bald permit application process (e.g., less
efficacy of practices. Over the long term, and Golden Eagle Protection Act (Eagle information needs to be compiled and
we estimate it will take about 100 Act). Under the rule, the public will provided to the Service as part of this
Service staff hours to process the have the opportunity to apply for permit application versus the
average programmatic take permit. The permits to authorize the take of bald requirement to create a Habitat
programmatic permits we develop eagles and golden eagles under the Eagle Conservation Plan (HCP) under the
initially will likely take longer, as will Act. Some incidental take of eagles was ESA).
large-scale and more complex previously authorized under the We are establishing a $500 permit
programmatic permits. Those may take Endangered Species Act, primarily bald application processing fee for the
up to 400 Service staff hours to prepare. eagles covered by an incidental take standard § 22.26 take permit and
We estimate it will cost the Service statement issued pursuant to ESA standard § 22.27 nest-take permit. Each
approximately $1,750 to process the section 7. Some bald eagle take was of these permit categories will require a
average § 22.26 permit application, authorized under ESA section 10 $150 fee for permit amendments.
including $940 for pre-application incidental-take permits. Twelve ESA Programmatic permits under both
technical assistance from Field Office section 10 permits authorized take of regulations require a $1,000 processing
biologists, and $810 for the Regional golden eagles as covered listed species. fee and a $500 amendment fee. We
Migratory Bird Permit Office once it However, ESA take authorization for anticipate receiving about 1,120 take
receives the application. For § 22.27 eagles has not been issued in Alaska, permit applications under § 22.26
permits, we estimate the cost to the where neither species of eagles was ever nationwide annually, and 20
Service to be $1,950. We estimate it will listed under the ESA. Thus, any applications for programmatic permits
cost the Service about $650 to amend authorization for take in Alaska would under § 22.26. We estimate receiving 70
the average permit. The average be newly available. Authorizations for nest-take-permit applications under
programmatic permit application under take of bald eagles and golden eagles are § 22.27 and 20 applications for
either § 22.26 or § 22.27 is likely to cost expected to increase from what was programmatic nest-take permits. (We
the Service $5,000. We estimate the authorized under the ESA. anticipate that we will issue permits in
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average cost to the Service for Baseline. The costs and benefits will response to the majority of these
substantive amendments to result from (1) the authorization of take applications, particularly the
programmatic permits to be $1,500. of bald eagles and golden eagles programmatic permit applications,
These estimates include technical throughout the United States under because applicants will already have
assistance provided by the Field Office, § 22.26, and (2) the number of permits coordinated with the Service before
as do the hourly estimates below. for take of bald eagle and golden eagle applying for a permit, and many project
On average, we estimate that it will nests throughout the United States proponents will have either adjusted
take Service employees approximately under § 22.27. their projects so as not to need a permit

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or concluded that a permit will not be project plans to reduce the likelihood of processing permit applications to the
issued for the take associated with the take to the point where no permit is Service would total approximately
proposed project. The remaining needed, and none is therefore issued. $2,348,500 (1,120 x $1,750 for § 22.26
potential applicants are those who are Some costs will be associated with this permit applications, + 70 x $1,950 for §
likely to need and qualify for a permit.) process. However, these costs are not 22.27 nest-take-permit applications, +
Approximately 60 standard permits and the result of this permit regulation, but 40 x $5,000 for programmatic-permit
16 programmatic permits may need stem from the statutory prohibitions applications, plus 60 x $600 for
amendment annually. against taking eagles. standard amendments, plus 16 x 1,000
We expect about half of the applicants Costs may have been incurred related for programmatic amendments).
for both types of permits to be Federal, to current projects that are in process The Service will also incur the cost of
State, local, or tribal governments, none and are delayed and potential projects providing technical assistance, even
of which are required to pay a permit- that were not initiated due to the lack where no permit is issued. The
application processing fee or of availability of ESA permits during the workload associated with each such
amendment-processing fee. Therefore, period after the bald eagle was delisted consultation will generally be less than
we estimate that annual application fees in most parts of the lower 48 States and for situations where a permit is issued,
and amendments will total prior to Eagle Act take permits but it will often be substantial. We
approximately $320,000 (560 permit becoming available under this rule. estimate the average technical
applications under § 22.26 x $500 fee, These costs would be attributed to the consultation will require 20 hours of
+ 35 nest-take-permit applications determination to delist the bald eagle. staff time, and we anticipate the number
under § 22.27 x $500 fee, + 20 Therefore, this analysis does not of such consultations not resulting in
programmatic permit applications x quantify these costs. permits will be about 800 per year,
$1,000 fee, + 30 standard amendments In addition to costs to the public, the resulting in $628,000 in increased costs
x $150 amendment fee, + 8 amendments Service will incur administrative costs to the Service from technical
to programmatic permits x $500 due to this rulemaking. We do not have consultations. All estimated costs for
amendment fee). There is no fee for a firm basis on which to confidently staff time include salary and benefits.
processing annual reports. predict how much demand there will be Overall, we estimate that new
These permit fees would be new costs for permits under these regulations. We administrative costs for the Service to
related to this rule. There may be estimate that the number of eagle-take implement this rule will be over $3
additional costs associated with the permits will increase under the rule million per year, including the costs to
permit process, which may include from an average of 54 authorizations Regional and Field Offices for actual
mitigation costs and, if the applicant previously issued under the ESA, to 830 implementation of the permit program,
engages a consultant or attorney, Eagle Act § 22.26 take permits, 40 nest- plus costs associated with the
consultant and legal fees. The take permits issued under § 22.27, and development and maintenance of the
information required to apply for an 40 programmatic permits issued under program (e.g., training, developing
individual Eagle Act permit is less both regulations, annually. We expect implementing policies, responding to
extensive and easier to compile than an increase because: (1) many smaller Freedom of Information Act requests,
permits under the ESA. Information projects will no longer be able to get budget formulation, etc.), which will be
such as latitude and longitude are under the ESA section 7 ‘‘umbrella’’ of borne by the Service’s Migratory Bird
publicly available (e.g., Google Earth). a Federal project when seeking and Ecological Services program offices.
The majority of people will be able to authorization to take bald eagles; (2) Benefits Accrued. Under the rule,
submit this information to the Service following delisting, it is now more benefits to the public will accrue from
without the need to hire a consultant, acceptable and less burdensome to get a issuance of permits to take bald eagles
especially with the help of local and permit to take eagles; (3) most bald eagle and golden eagles throughout the
State government staff who may be populations are increasing; (4) permits United States. In general, benefits will
willing to provide assistance with will be available for golden eagle take, include increased value in land that can
location and distance information and (5) ESA take permits were not now be developed or harvested for
between the project and the eagle nest issued in Alaska, but Eagle Act permits timber, as well as the elimination of the
or use area. The Service will direct may be issued there under these permit risk and future costs associated with the
applicants to available, free or regulations. potential unpermitted take of eagles that
inexpensive tools and services for The cost of issuing most permits will could occur from the development
obtaining the necessary information. decrease, but many authorizations activities. Benefits will depend on the
Larger project proponents may prefer similar to those we previously granted level of potential future growth
to hire consultants. Consultant fees under section 7 of the ESA (where the associated with the authorized permit
could range from $300 to many consultation covered numerous species activity.
thousands of dollars, depending on the in addition to bald eagles) would now Only minimal take of golden eagles
scale of the project, but presumably still require the issuance of an Eagle Act (as covered non-listed species in HCPs)
would be cost-effective, as compared to permit in addition to a biological has been authorized under the ESA
avoiding the take, since the choice is the opinion. On average, we estimate it will prior to proposing this rule. However,
applicant’s to make. In many cases, for cost the Service approximately $1,750 to because population data indicate that
larger projects, project proponents will process the average § 22.26 permit take of golden eagles should be
have hired consultants to address a application (including pre-application extremely limited, we anticipate issuing
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multitude of other factors unrelated to technical assistance). Assuming only a minimal number of new take
impacts to eagles, so additional costs approximately 1,120 permit authorizations for golden eagles under
related to Eagle Act authorizations applications under § 22.26, 70 nest-take- these new regulations. Some take of
would be minimal. permit applications under § 22.27, 40 golden eagles throughout the United
We anticipate that there will be many programmatic permit applications, 60 States that may be authorized by these
instances where project proponents standard permit amendments, and 16 regulations may result in new
approach the Service, and based on programmatic amendments, per year, development and activities that could
preliminary coordination with us, adjust the annual costs associated with not have proceeded legally without this

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rule. We expect that economic benefits consistent with the goal of stable or proposed rule of how we intended to
may accrue as a result of the increasing breeding populations. analyze appropriate levels of take was
implementation of this rule for oil and Therefore, for purposes of this not as clear as it could have been (72 FR
gas development operations, farming regulation, ‘‘compatible with the 31141). Our intent was always to use
and ranching operations, mining preservation of the bald eagle and the modeling, similar to harvest modeling
companies, utilities, the transportation golden eagle’’ means ‘‘consistent with we conduct for other migratory bird
sector, and private land owners. the goal of stable or increasing breeding species.
Overall, we anticipate issuing populations.’’ Although take thresholds The PDMP is a national-level
approximately 910 take permits per are based on regional populations, the monitoring plan designed to detect
year, under both regulations. We have regulation requires the Service to declines that would merit
completed a final environmental consider additional factors, such as reconsideration of the bald eagle as
assessment (FEA) of the effects of this cultural significance, that may warrant threatened or endangered under the
rulemaking, which is available on our protection of smaller and/or isolated ESA, whereas the population trends on
website at populations within a region. which we would base take thresholds
migratorybirds/baldeagle.htm). Under We anticipate no more than modest under this take permit regulation will be
the FEA, we developed take thresholds increases in bald eagle populations in smaller in scale and at levels that are
that will guide permit issuance to the future. We have no evidence at this below the detectability of the PDMP.
ensure that take is compatible with the time that leads us to expect any increase To establish take thresholds for this
preservation of the bald eagle and the in golden eagle populations. Golden permit regulation, we will rely on the
golden eagle. As a result, we anticipate eagles appear more likely to experience best data we can obtain, including the
that the amount of take that will be declines, due to loss of prey base, sources noted in the proposed rule. We
requested and authorized under this disturbance, and loss of habitat due to will use models to ascertain how much
permit regulation will not significantly resource extraction activities, and other take could be permitted before causing
affect bald or golden eagle populations. factors. For more discussion on impacts to eagle populations that would
population thresholds, see our FEA of not be compatible with the preservation
Response to Public Comments this action. of the species. If we have inadequate
Unless otherwise noted, each subject Comment: The appropriate data to run the models and no other
heading includes all substantive population threshold on which to base means of assessing the status of the
comments we received on both the June the number of permits that can be population where the take will occur,
5, 2007, proposed rule and the proposed issued (to be compatible with the we may not be able to determine that
revisions to the rule noted in our August preservation of the bald eagle and the the take is compatible with the
14, 2008, notice re-opening of the golden eagle) should be ‘‘no negative preservation of the species. If we are
comment period on the rule and impact on the eagle’s population growth unable to make that determination, we
announcing the availability of the DEA. rate.’’ cannot authorize take under the Eagle
We are responding to the comments Service response: We disagree with Act.
concerning the environmental analysis, this comment. Even if considered a Comment: Take thresholds should be
population modeling, take thresholds, desirable goal, maintaining the same assessed based on the national
and other aspects of the DEA in the growth rate indefinitely is unrealistic. population as a whole. (The commenter
FEA. Copies of the FEA are available at How large a population is ideal for did not provide a basis for this either species of eagle depends on a recommendation.)
baldeagle.htm.) range of factors, but as with any other Service response: Under the ESA,
species, there are ecological limits that listing and delisting decisions must be
Populations and Take Thresholds. weigh against and ultimately prevent made purely on the basis of the ‘‘best
(The comments addressed under this continuous growth. Although we do not scientific and commercial data
heading were all made on the June 5, predict either species of eagle will available.’’ Effects on the economy are
2007, proposed rule. Comments become overabundant in the foreseeable excluded from the analysis, as are other
addressing populations and take future, some regional populations of human social or cultural values beyond
thresholds that we received after release bald eagles will likely level out after those furthered by the ESA. Because the
of the draft environmental assessment reaching an ecologically-sustainable Eagle Act is not delimited by such
are addressed in the FEA.) size. To prohibit human activity within statutory constraints, and because
Comment: The use of the Partners in those areas because the growth rate of protecting regional and local
Flight (PIF) threshold for rate of eagles has slowed would overly burden populations of bald eagles and golden
population decline beyond which people without any benefit to eagles. eagles is culturally important to the
permits would not be issued is Comment: The Service should clarify American people, this regulation
inappropriate. The PIF threshold is the relationship between the permit interprets compatibility with the
unacceptable because it amounts to a regulation and the draft bald eagle post- preservation of the species to include
15% loss over 30 years. delisting monitoring plan (PDMP). The maintaining regional and locally-
Service response: The final regulation PDMP data will not be adequate for important populations. Take thresholds
caps the number of permits we can issue purposes of detecting the rate of decline would be based on modeling of regional
with thresholds designed to ensure the Service will use for permitting population data, but within a regional
increasing or stable breeding purposes, and neither will the other population, as part of our evaluation of
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populations. Our reasoning is based on monitoring sources referenced in the take applications, we will take into
the fact that steady declines, even as rule. The Service should instead apply consideration factors that may warrant
small as 0.54% annually, the rate we a harvest model that takes into protection of more localized
proposed in the June 5, 2007, proposed consideration current population trend populations, including the cultural
rule (72 FR 31141), will cumulatively and assumes that permits issued will significance of a local population.
result in an unacceptably large decrease result in take. Comment: In addition to the nine bald
in population over time. Accordingly, Service response: We acknowledge eagle management populations
we are establishing take thresholds that our description in the June 5, 2007, mentioned in the proposed rule, the

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Service needs to assess eagle all regions of the U.S. will be consistent level that would cause population
populations by State and NABCI bird with the goal of stable or increasing declines. If demand is higher than that
conservation area, or local areas. breeding populations. threshold, we must limit the number of
Otherwise some regional and local Comment: The proposed rule stated permits we issue. Hence, the availability
populations would be threatened. Local that, if populations decline to the of permits will depend on the level of
populations can be of unique threshold level, the Service will refrain demand and the availability of reliable
importance, including to the public. from issuing permits ‘‘until such time data reflecting healthy eagle
Service response: We are using the that the take would be compatible with populations. In addition, the process
NABCI bird conservation regions (BCRs) the preservation of the bald or golden will be predictable in that the take
to manage golden eagle populations, eagle.’’ That statement should be thresholds for each year in each region
further broken down by portion of BCR amended to add ‘‘unless human life may will be known.
within each Service Region. For bald be impacted.’’ Comment: Since the Service cannot
eagles, we are not using nine Service response: Depending on what issue permits unless the take will be
management populations as we referred factors are responsible for the decline compatible with the preservation of the
to in the proposed rule. Instead, to and whether the decline is likely to be species, meaning that permits cannot be
establish management populations for short-term (part of a recurring issued without adequate data, the
bald eagles, we used natal populations population cycle) or long-term, the Service should consider either requiring
to look at distribution across the Service may not need to suspend permit permittees to contribute to monitoring
landscape, allowing us to determine issuance, and may merely reduce the efforts, or making the availability of
rough natural ‘‘boundaries’’ between number of permits issued. However, if permits expressly contingent on there
regional eagle populations. Because the the breeding population is reduced to being in place a monitoring program
management populations delineated by the degree that issuance of a permit sufficiently rigorous to detect the
this approach roughly correspond to the would be incompatible with the threshold decline upon which permit
Service’s organizational structure made preservation of the bald eagle or the issuance will be predicated.
up of 8 Service Regional Offices, we will golden eagle, we cannot issue that Service response: As discussed earlier
manage bald eagles using populations permit and remain in compliance with in the preamble, and more fully in the
within Service Regions, with some the Eagle Act, which authorizes the FEA, we have reduced initial take
adjustments, explained in more detail in Secretary of the Interior to issue take thresholds for both species, capping
the FEA. permits only if he finds that the take permitted take for bald eagles at 5% of
Regarding the concern that local would be compatible with the estimated annual productivity and for
populations will not be adequately preservation of the bald eagle or golden golden eagles at historically-authorized
protected, as part of our evaluation of eagle (16 U.S.C. 668a). Fortunately, in take levels. This more conservative
take applications, we will take into the majority of cases, emergency take approach will buffer the natural
consideration biological and human- will meet that standard, since many variability in vital rates affecting
induced pressures on, and cultural threats to human life that could be population trends and, perhaps more
significance of, more localized caused by eagles may also threaten the importantly, ensure against gaps in our
populations. In evaluating whether the eagles themselves. For example, if for data.
take is compatible with the preservation human safety purposes, a utility needed
‘‘Other interests in a particular locality’’
of the eagle, we must consider to remove a nest to prevent an electrical
cumulative effects, which will help fire or an airport needed to haze eagles Comment: The Service states that the
ensure adverse impacts are not to prevent them from nesting near Eagle Act’s authority for granting the
concentrated in one locality. runways, the authorized take would proposed permits stems from the Act’s
Comment: The regulations should prevent both eagle and human provision that the Secretary of the
explicitly state that permits will be mortalities. Because issuing a permit in Interior may issue permits ‘‘for the
denied if the population declines to the these types of situations would prevent protection of wildlife or of agricultural
threshold level. harm to the eagle, the action would be or other interests in a particular
Service response: The regulations compatible with the preservation of the locality.’’ The final rule must define
explicitly state that before issuing a eagle. ‘‘other interests.’’ Without doing so, the
permit, the Service must determine that Nevertheless, to ensure that safety rule is an overbroad interpretation of the
the take is compatible with the emergencies can be legally redressed, Eagle Act because it ignores the fact that
preservation of the bald eagle or the we are adding issuance criteria to the ‘‘other interests’’ is associated with
golden eagle, which is the statutory regulations to ensure that take ‘‘wildlife’’ and ‘‘agricultural’’ interests,
mandate. If data indicate populations at associated with safety emergencies is and does not comport with the
either national or regional scales are given priority over take for any other remainder of the statute’s provisions
declining, depending on the source and purpose. restricting the purposes for which take
severity of the decline, the Service may Comment: The statement that permits can be authorized.
establish lower take permit thresholds will be issued on a limited basis raises The proposal is not consistent with
where appropriate or suspend concerns that a predictable incidental the Eagle Act because it would
permitting until data confirm the take process will not be available. authorize take for any purpose or
population can support take. Service response: The Service has the activity, whereas the statute clearly
Comment: The Service provides no responsibility to implement certain laws intended to limit the purposes for which
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assurances that bald eagles in Arizona that protect wildlife, including eagles. take could be authorized. Furthermore,
will be protected. Arizona bald eagles The Eagle Act contains a mandate that the proposal fails to show what ‘‘other
must be considered separately. take of eagles be compatible with the interests’’ have been jeopardized by the
Service response: As explained in preservation of the species. Unlimited long-standing legal prohibition on
greater detail within our FEA, we will authorizations for take would be taking eagles. At the very least, the
not issue permits that would result in compatible with the preservation of the Service needs to delineate what ‘‘other
declines in the Sonoran Desert bald bald eagle and the golden eagle only if interests’’ will qualify for the permit.
eagle population. Permit thresholds for demand for permits remains below the The proposal’s over-broad interpretation

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46852 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations

of ‘‘other interests,’’ would allow authorizations to take eagles approaches Comment: The applicant should not
permits for a vastly broader range of what would be compatible with the have to show that the take cannot
purposes than is currently authorized preservation of the bald eagle or the practicably be avoided or that he has
under the MBTA, which is nonsensical, golden eagle, requests related to Native minimized impacts to the extent
since the Eagle Act clearly restricts take American religious/ceremonial use will practicable. The language is similar to
to certain purposes, whereas the MBTA be authorized before other requests for that used under the Clean Water Act
can authorize take wherever it is take. section 404 wetlands permit program,
consistent with the treaties. which raises the concern that the
Service response: We read Congress’s Scope and Criteria of § 22.26
Service will require applicants to
inclusion of the phrase ‘‘or other Comment: The proposed rule states conduct a detailed alternatives analysis
interests in any particular locality’’ as that a permit may be issued when test, including consideration of project
intended to ensure that other interests several criteria are met including where purpose and alternative project sites.
besides wildlife and agricultural claims ‘‘the take cannot practicably be The Service should identify the
would be able to seek remedy through avoided.’’ The use of a ‘‘practicable authority under the Eagle Act for
a permit issued pursuant to regulations. avoidance’’ standard is inconsistent requiring that impacts be minimized to
In drafting the statute as it did, Congress with the Eagle Act because it elevates the extent practicable.
gave the Secretary broad discretion to cost and overall project concerns over Service response: The Eagle Act
determine what types of other interests protecting bald eagles. The Eagle Act stipulates that permits may be issued
might be jeopardized by the broad provides that take should be authorized where the take is necessary to protect ...
protections afforded to eagles. When the only where it is necessary to protect a other interests in any particular locality
statutory language was developed, the legitimate interest, not merely a (italics added for emphasis). Some
perception that eagles were a significant facilitating factor. The applicant should could argue that, to be necessary, a thing
threat to livestock was widespread. have to affirmatively demonstrate that, is absolutely required and cannot be
Today, the American economy is in the absence of the permit, the omitted or avoided. We believe a less
comprised of numerous additional legitimate interest cannot be met, and strict interpretation is reasonable and
‘‘interests’’ that have largely supplanted the applicant must not be allowed to justified to ensure that human activity is
ranching in many areas of the country. define the goals in an overly narrow not overly restricted, and so interpret
These ‘‘other interests’’ provide jobs and manner. ‘‘necessary’’ as something that cannot
support our infrastructure and quality of Service response: We agree with the practicably be avoided. In short, we
life, and by so doing merit similar commenter that the goal for which the view the practicability standard as less
protection as agriculture and livestock. take is necessary must not be defined burdensome than other reasonable
Therefore these regulations provide a too narrowly by the applicant. For interpretations of the statute’s purpose
means to authorize eagle take to protect example, if a municipality is installing and intent, and therefore appropriate to
‘‘other’’ interests such as transportation a bike trail with the goal to create a trail adopt for purposes of this rulemaking.
needs, electric utility maintenance, with an unbroken view of the river, it Comment: Take authorized by these
residential and commercial may be more difficult to avoid permits should be limited to activities
development, forestry, resource disturbing eagles along the river, than that benefit the public welfare.
development and recovery, and other were the goal less narrowly defined—for Service response: The Eagle Act does
public and private interests. example, to create a bike path that not limit take to activities that benefit
Comment: In contrast to the restrictive loosely parallels the river. Where the public as opposed to private
process for authorizations for Native possible, interests should be defined interests. The statute specifically
American religious use, the Service here broadly enough to allow plans to be provides that take can be authorized to
proposes a sweeping process for reasonably modified if necessary to protect agriculture, which in this case
allowing a broad spectrum of public and protect bald eagles or golden eagles. primarily meant privately-owned
private interests to take eagles where We do not agree that the practicable livestock.
their locations stand in the way of avoidance standard elevates the interest Comment: The Service should model
development and utility interests. The of the project proponent over eagles the regulation on the U.S. Army Corps
disparate treatment between these because whether the impact can of Engineers’ requirements for
approaches must be reconciled. practicably be avoided is only one of the avoidance, minimization, and
Service response: The process by factors we will weigh before issuing a mitigation of unavoidable impacts, and
which we issue permits to Native permit, and it is secondary to whether these should be clearly set forth in the
Americans for take of eagles from the the take will be compatible with the regulation.
wild and permits for possession of eagle preservation of the bald eagle or the Service response: While it was not our
parts and feathers from the National golden eagle. Nevertheless, to address goal to model this proposed rule on
Eagle Repository are the least restrictive this concern, when we re-opened the Corps’ regulations, the Service’s official
means of doing so while protecting comment period on the regulation in mitigation policy as set forth in the U.S.
other compelling interests. Unlike under August 2008, we modified the proposed Fish and Wildlife Service Manual (501
the permit regulations we are finalizing definition of ‘‘practicable’’ to FW 2) and reflected in this rule, is based
through this rulemaking, we do not incorporate the need to consider the on a similar tiered approach to reducing
require any mitigation or other feasibility of the action relative to the the overall impact of activities,
conservation measures to offset the scope of the impact on eagles. The final beginning with avoidance and
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impacts of Native American religious definition of ‘‘practicable’’ reads: minimization, and requiring
take permits. ‘‘capable of being done after taking into compensatory mitigation for large-scale
Furthermore, the effect of issuing consideration, relative to the magnitude activities with greater impacts.
permits under this proposed regulation of the impacts to eagles (1) the cost of Comment: Permits for take that results
will not impinge on Native Americans’ remedy comparative with proponent in mortality should be issued only for
access to eagles for religious/ceremonial resources; (2) existing technology; and human health and safety.
use. This regulation includes provisions (3) logistics in light of overall project Service response: Our goal and
to ensure that, if overall demand for purposes.’’ responsibility under the Eagle Act is to

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preserve bald eagles and golden eagles, federally-recognized tribes to use standards for permitting take in those
which we interpret and define as feathers and parts from such eagles for areas.
consistent with the goal of stable or religious purposes. Service response: The commenter’s
increasing breeding populations of both Comment: The consideration of suggestion is beyond the Service’s
species, but not protecting each and secondary impacts must be in the authority under the Eagle Act. However,
every eagle. Take that results in a loss regulations, not just the preamble. to the degree that the Chesapeake Bay
of productivity and take that results in Service response: We agree, and have and other areas are critical to the
mortality must be assessed primarily in added language addressing preservation of bald eagles, take in those
terms of affects to the regional and local consideration of secondary impacts— areas will be more highly scrutinized,
area populations. Depending on the age now denoted as ‘‘indirect effects’’—to since we must consider compatibility
and breeding status of an individual the regulations under § 22.26 at (e)(1), with the preservation of the eagle before
eagle, some take that results in mortality (e)(2) and (f)1, and under § 22.27 at issuing a take permit. Part of that
will have less impact than some (b)(7) and (e)(1). assessment will be an analysis of
disturbance take. Therefore, we believe Comment: Secondary impacts will cumulative impacts, which will help
there is no rationale to enact a sometimes affect eagles that are known safeguard particular localities that are
prohibition on take that results in to breed, feed, or shelter on tribal land, critical for bald eagles.
mortality—versus take in the form of and the tribes should be consulted Comment: The same consideration of
disturbance—for commercial purposes. before a permit is issued that would whether alternative habitat is available
Comment: There is a big difference affect such eagles. that is proposed to be used for nest take
between lethal vs. non-lethal take in Service response: Before issuing a should also be a criterion for
terms of the significance of the eagle as permit under these regulations, the disturbance permits when the
a sacred being for Native Americans. Service will consider whether proposed disturbance is associated with the
Native Americans will not support plans might affect tribal rights to trust permanent loss of a nest, foraging area,
lethal take for commercial purposes. resources. If the Service determines that
Service response: First, see our or roost site.
such effects might occur, we will notify Service response: We agree with this
preceding response. We will, however,
the affected tribe(s) and consult with comment and have added this
when appropriate, undertake
them if requested. consideration to § 22.26(e), Evaluation
consultation with tribes that may be
affected by the lethal take of an eagle on Comment: The use of ‘‘means test,’’ of applications.
a case-by-case basis, and will consider requiring the Service to consider ‘‘the
cost of a remedy comparative with Prioritization Criteria
the cultural and spiritual significance of
eagles and how take that results in proponent resources’’ in determining Comment: There needs to be a system
mortality could adversely affect tribal whether a measure is practicable, is of prioritization. Otherwise, the demand
cultural values at that time. arbitrary and will result in more will threaten to reverse population
Comment: Where take resulting in stringent requirements for project recovery.
mortality is authorized for an industry proponents with more financial means, Service response: Recognizing the
or other non-tribal entity, tribal rather than basing measure purely on possibility that demand could exceed
members should be given the what is practical. what would be compatible with the
opportunity to physically take the Service response: In fact, we do preservation of the bald or golden eagle
eagles. believe that more stringent measures are in certain regions, we established
Service response: If feasible and appropriate for project proponents with regional take thresholds and will not
appropriate, we may encourage a tribe more financial means. The plainest issue permits in excess of those limits.
that applies to take eagles to take ones meaning of ‘‘practicable’’ is ‘‘capable of We agree with the commenter that a
that would otherwise be taken under the being done.’’ Greater resources, system of prioritization is needed in
regulations herein. However, as a financial and otherwise, enhance case demand runs up against the
generality, we think it will be difficult capability and increase options. For thresholds, particularly in light of other
to meet the purposes of both permits example, a large landowner will types of eagle take permits we issue.
with a single take. Tribes that qualify for generally have more options when Therefore, in the event demand exceeds
a take permit must certify that the take designing a project than a small take thresholds, the regulations include
itself is an integral aspect of the landowner. Thus, a large land-holding issuance criteria to ensure eagle take
religious ceremony in order to justify company building on 500 acres should permits are issued according to
why an eagle from another source will be able to site proposed buildings following prioritization order:
not meet the tribe’s needs. In other farther from a communal roost than 1. Safety emergencies (§ 22.23 and
words, presenting the tribe with an would a private homeowner on a 2-acre new §§ 22.26 and 22.27);
eagle carcass will not suffice. Most eagle lot. Similarly, if the potential remedies
for avoiding the take entail more money 2. Native American religious use for
mortalities authorized under the permit
as opposed to more land, a proposed, rites and ceremonies that require eagles
regulations at § 22.26 are ‘‘non-
large commercial project that is likely to be taken from the wild (§ 22.22);
controllable,’’ that is, the timing and
location of each take is not precisely take eagles may be able to alter the 3. Renewal of programmatic permits
known before it occurs. When project design in a manner that requires (§§ 22.26 and 22.27, and possibly other
discovered, the carcasses of eagles killed additional financial resources but sections);
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under these permits will be sent to the avoids the take, and still make enough 4. Non-emergency activities necessary
National Eagle Repository to meet the money to be profitable. to ensure public health and safety (§
religious needs of tribal members where Comment: Concentration areas need 22.23 and new §§ 22.26 and 22.27);
the take itself is not necessary to carry more protection than is proposed. The 5. (For golden eagle nests only)
out the religious ceremony for which Service should designate areas like the resource development and recovery
eagle parts and feathers are sought. This Chesapeake Bay as critical to the operations (§ 22.25);
provision provides an equitable continued recovery and maintenance of 6. Other interests (§§ 22.21, 22.22,
opportunity for members of all bald eagles, and establish higher 22.23, and new § 22.26).

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Comment: The Service should give states that no permit will be required for protection from take liability for
priority to projects that are in the public activities that conform to the activities consistent with the
interest. Guidelines. The Service should do the Guidelines.
Service response: If demand exceeds same. Service response: Due to the limited
take thresholds that would be Service response: The State of staff and resources of our agency, we
compatible with the preservation of the Florida’s new bald eagle management want to discourage applications for
bald eagle or the golden eagle, we will scheme is based on Florida law and permits to cover take of eagles that is in
prioritize Native American religious and does not require a permit to take bald fact unlikely to occur. We believe our
cultural use and activities that serve the eagles. Our regulations are authorized conservation mission is better served by
public interest over those that would by the Eagle Act, which specifically helping the public reduce the likelihood
largely benefit private or commercial requires a permit to take bald eagles. of take by providing permits in
interests. Therefore, we cannot do as Florida has appropriate circumstances where take is
Comment: Will the criteria giving done, that is: promulgate regulations likely (and cannot practicably be
Native Americans preference for eagle that authorize some take without a avoided). If, after an application is
take mean that they will get depredating permit. We believe take is generally submitted, the Service determines that
golden eagles instead of falconers? unlikely to occur when our Guidelines take is not likely to occur, we may issue
Service response: Yes; although this are used to conduct of activities near the permit (if permit issuance criteria
rulemaking is separate from the eagles. Therefore, most activities that are met); however, if we do not consider
regulations governing take of clearly conform to the recommendations take likely to occur, we will not subtract
depredating eagles, the same principals provided by the Guidelines would not the authorized take from Regional take
that underlie the prioritization criteria necessitate a permit. However, thresholds—unless follow-up
in this regulation would apply to take of adherence to the Guidelines is not monitoring reveals that it did actually
depredating golden eagles. Thus, if both always as straightforward as simply occur.
a tribe (for religious purposes) and keeping the project footprint 330 or 660 Comment: The Service should use the
falconer request possession of such an feet from an eagle nest, based on a various guidelines that have been
eagle, we will give priority to the tribe. category of activities. The Guidelines developed for specific States or regions
Comment: The provisions giving first are guidance, and do not dictate what when evaluating take.
priority to tribes should require them to effects will actually happen to eagles Service response: The guidelines
take from areas with the highest from any particular activity. Many developed by different States and
thresholds (if location not dictated by activities entail a variety of impacts, regions largely predate the Federal
their religion). sometimes to eagles in more than one regulatory definition of ‘‘disturb.’’ To
Service response: If demand is greater location, sometimes as the result of the degree that ‘‘disturb’’ has been
than take thresholds in a given region, subsequent, foreseeable effects. interpreted relatively consistently by the
and a tribe requesting take can Accordingly, to avoid take of eagles, different State and Federal agencies that
practicably take an eagle in another more than the immediate project developed the various guidance, those
region that has take thresholds that are footprint should be considered. Also, documents were useful to us when we
higher than demand while meeting the some activities will not fit neatly into developed our National Bald Eagle
religious needs of the tribe, we may the categories provided in the Management Guidelines. Because the
require the tribe to take the eagle in that Guidelines, and sometimes special Guidelines are designed to prevent an
other region. circumstances may be present that make impact (disturbance) that is a Federal
Comment: The prioritization criteria take more or less likely to occur. prohibition, we believe that a single set
and allocation process could affect the Examples of such circumstances include of recommendations for avoiding a
ability of the U.S. Department of unusually open topography, acoustic violation of that prohibition should be
Agriculture’s Wildlife Services’ program anomalies, scarcity of alternative applied throughout the United States.
to manage depredating golden eagles. resources in a particular vicinity, and so This in no way precludes States from
Service response: The prioritization forth. In summary, ‘‘adherence to the enforcing their own statutory and
criteria could affect Wildlife Services’ Guidelines,’’ is not a simple formula regulatory protections for eagles, and
management of depredating golden that will uniformly predict whether take applying their own guidance for
eagles in rare cases. Where feasible and will occur. minimizing State-prohibited impacts to
in accordance with tribal religious Comment: The Service should eagles.
needs, if requests for take exceed take consider ways to allow for minor
thresholds, we will direct tribes to take exceptions to the Guidelines without Mitigation
depredating eagles that would otherwise requiring a permit. Comment: The proposed rule was
be taken by Wildlife Services or Service response: See our response to unclear as to whether mitigation will be
falconers. the preceding comment. We do not required for every permit issued, and
prohibit or authorize exceptions to the also as to the range and types of
Relationship to the National Bald Eagle Guidelines. All we can prohibit or mitigation that will be used.
Management Guidelines authorize are certain impacts to eagles. Service response: Mitigation includes:
Comment: The rule is unclear as to Anyone may choose to ignore the avoidance, minimization, rectification,
whether a permit is required for take Guidelines, and that choice requires no reduction over time, and compensation
that results from activities conducted in authorization from us. However, if an for negative impacts. Under these
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accordance with the Guidelines and eagle is disturbed or otherwise taken regulations, all permittees are required
other best management plans. The final without a permit, it will be a violation to avoid and minimize the potential for
rule should explicitly state that of the Eagle Act. take to the degree practicable, and for
compliance with the Guidelines Comment: The Service should make programmatic permits, to the point
amounts to a de facto permit, or at least permits available for activities that where take is unavoidable.
creates a presumption of compliance conform to the Guidelines. At the very Depending on the scale of the take,
with the Eagle Act. The new bald eagle least, the Service should issue ‘‘No- and the particular circumstances, the
management scheme in Florida clearly take’’ letters to give landowners written Service may require rectification and/or

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reduction over time from some we added language to the permit we think is likely to amount to a one-
permittees. Additional compensatory conditions at § 22.26(c)(1) that requires time loss of productivity. Also,
mitigation will usually be required only the Service to consider indirect effects compensatory mitigation may not be in
for (1) programmatic take, and other for purposes of determining whether the form of payment. For example, it
multiple take authorizations; (2) compensatory mitigation is appropriate. might be fulfilled by donation of an
disturbance associated with the Comment: Mitigation must be geared easement. If compensatory mitigation is
permanent loss of a breeding territory or to preservation of the local/regional required in the form of payment to a
important traditional communal roost population. fund established to offset the impacts of
site; or (3) as necessary to offset impacts Service response: Avoidance and take, the disposition of those funds will
to local area populations. The take minimization are inextricably tied to the depend on various factors, such as
thresholds associated with this local population. Generally, rectification whether the funds could be used to
permitting process will ensure that each and reduction over time also benefit the benefit local eagle populations and
authorized take, along with cumulative local population. Ideally, as provided in whether the Service has entered into
take, is compatible with the our Service Mitigation Policy, the agreements with the State or tribe to
preservation of bald eagles and golden benefits of compensatory mitigation apply such funding. If States or tribes
eagles. Permit issuance is based on our would accrue to the area where the take conduct surveys and monitoring of bald
making a finding that the population will occur and second priority would be or golden eagles, mitigation funds could
can withstand the take that will be in proximity to that area. However, if be directed to help offset the costs.
authorized without experiencing a compensatory mitigation within or in Comment: The rule should allow
decline. Therefore, compensatory proximity to the planning area is not compensatory mitigation only in
mitigation for one-time, individual take practicable or a significantly larger extraordinary circumstances.
permits will not typically be necessary benefit could be realized in another Service response: We interpret this
for the preservation of eagles. For locality or region, the permit may comment to mean that the Service
projects with long-term impacts and/or include mitigation measures that benefit should always require avoidance and
impacts of a greater magnitude, eagles in a different locality. minimization, and not allow
compensatory mitigation will generally Comment: Any funding from
compensatory mitigation to take the
be required to reasonably offset the mitigation should be used to protect
place of such measures. We agree, and
magnitude of the impacts. eagle habitat.
the regulations require that applicants
We are developing implementation Service response: We agree that
for both types of permits must take all
guidance to ensure consistency in how protecting eagle habitat should be a high
practicable steps to avoid and minimize
these permits are administered. priority. However, there may be other
take. If this condition is not met, the
Mitigation will be addressed in more beneficial uses for mitigation funds—for
regulations do not allow us to issue a
detail in that document, which will be example to support surveys and
made available for public notice and population monitoring.
Comment: The Service must Comment: The Service needs to
comment before being finalized. Some
affirmatively describe the required clarify which Service program office
compensatory mitigation options we are
minimization measures within the terms (Ecological Services or the Migratory
considering at this point include:
and conditions of the permit. As Bird Program), will be responsible for
purchase and preservation of habitat or
written, the rule allows the applicant to determining impacts and how much
potential habitat; use of conservation
propose his or her own measures. take will occur. It is important that the
easements to protect important eagle-
use areas or potential nest sites; and Service response: The project Service adopt a consistent methodology
contributions to a fund established to proponent must provide as part of his or across regions.
benefit eagles. her application a description of the Service response: Evaluation of
Comment: Requiring compensatory measures to which he or she is prepared impacts will be consistent across
mitigation for every permit will create a to commit. Without that information, we Service Regions and between Service
disincentive for landowners who would cannot evaluate the overall impact of programs, which will all be using
seek a permit in lieu of following the the project. If the proposed measures are national implementation guidance (to be
Guidelines. not adequate, we will not issue the developed) addressing this and other
Service response: Permit issuance is permit as proposed. The regulations aspects of permit issuance.
predicated on the requirement that the preclude us from issuing a permit if the Comment: Compensatory mitigation
take cannot practicably be avoided and applicant has not proposed measures to should not exceed the level of
that the applicant has proposed minimize impacts to the degree measurable impacts.
avoidance and minimization measures practicable. In such a case, we will work Service response: We agree with this
to the extent practicable. Under those with the applicant to develop stronger comment, but note that compensatory
circumstances, if the applicant can minimization measures or we must mitigation will rarely precisely
practicably avoid the take, he must. deny the permit. In reality, we will often counteract impacts to eagles. In reality,
Requiring additional compensatory work with the applicant during the for the largest impacts, compensatory
mitigation should have no effect on application process, so the terms and mitigation is more likely to fall short of,
whether the applicant can follow the conditions proposed by the applicant rather than exceed impacts, since it is
Guidelines. have already been evaluated by us when difficult to replace the loss of territory
Comment: The final rule itself (and we receive the completed application. or communal roost site with creation of
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not just the preamble) must be explicit The final terms and conditions will be new ones.
that secondary, foreseeable impacts will explicitly spelled out on the permit. Comment: If an applicant conducts
be assessed for purposes of determining Comment: Mitigation funding should avoidance and minimization to the
what mitigation will be required. be required and should go to States to point where take will likely be avoided,
Service response: The rule provides compensate for their monitoring costs. he will probably want a permit to justify
that we must consider reasonably Service response: As explained above, his efforts, resulting in a bigger
foreseeable secondary impacts when we will not always require workload than the Service appears to be
assessing the overall level of take. Also, compensatory mitigation for take that anticipating.

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Service response: We now anticipate indemnity for all take,’’ programmatic situation where populations decline
a larger workload than when we permits will authorize only the take that unexpectedly, or new information
proposed the June 2007 rule, partially occurs despite implementation of reveals the take would not be
because of the demand from project stringent ACPs designed to reduce take compatible with the preservation of the
proponents who re-design projects to to the point where it is essentially bald or golden eagle.
avoid take. First, the process of unavoidable (yet anticipated). The Service response: Provisions for
providing them with the technical overall effect of these types of permits review, denial, modification, and
assistance needed to avoid the take may will be a reduction in mortalities and revocation, and other general processes
require significant staff resources from other adverse impacts to eagles. and procedures that apply to all the
our Ecological Services biologists, and Comment: Permits should not specify types of permits the Service issues are
second because our Migratory Bird exact numbers of authorized take. found in 50 CFR part 13. For that
Permit Offices will still need to consider Rather, levels of take should be reason, we do not reiterate those
every permit application we receive and identified regionally. provisions within each section of
either deny or issue a permit. For this Service response: Levels of take will regulations that govern individual
reason, we discourage permit be identified regionally in order to permit types. Regarding the scenario
applications from people who are not establish population thresholds up to raised by this commenter, 50 CFR
likely to take eagles. However, issuing which take can be authorized. However, 13.28(a)(5) provides that a permit may
permits to some of these applicants will each permit (except programmatic be revoked if ‘‘the populations of the
provide a benefit: the permittees will be permits designed to reduce ongoing wildlife or plant that is the subject of
required to monitor the activity site and take) will authorize a specific amount of the permit declines to the extent that
report how eagles react to the activity, take to ensure that the cumulative take continuation of the permitted activity
providing us with valuable information authorized under all the permits in a would be detrimental to maintenance or
on whether take that we believe is region does not exceed the regional recovery of the affected population.’’
unlikely to occur does not in fact occur. population threshold. Comment: The rule should address
Comment: Will compensatory Comment: The time period for a unanticipated take by specifying that
mitigation be required for removal of permit should be identified. Permits the permittee must contact the Service
nests that are of low biological value? should not exceed one year. immediately and apply for a new
Service response: We are unlikely to Service Response: Each permit will permit.
require compensatory mitigation for have a limited tenure specified on the Service response: We have added
removal of nests that have very low face of the permit. These final language to the rule requiring the
biological value. regulations limit the tenure for all permittee to contact the Service if
permits to five years or less. Many unanticipated take occurs. As to
Permit Conditions projects are multi-year projects, and a 1– whether a new permit would be
Comment: The public should be given year tenure would introduce required, that will depend on the
the opportunity to comment on each unnecessary uncertainty for a project circumstances. Some situations may be
permit after public notice. proponent that cannot identify exactly more appropriately addressed by
Service response: While bald eagles when the take will occur. Receiving amending the existing permit or taking
were listed under the ESA, the public applications for the same take in some other action.
was provided an opportunity to consecutive years would also create
comment before the Service issued each Monitoring
more work for our permit offices
section 10 incidental take permit that without providing any benefit to eagles. Comment: Monitoring should not be
authorized take of eagles. That process That said, the rule limits permit tenure required of the permittee. It is the
is a statutory requirement of the ESA (16 to five years or less because factors may responsibility of the Service. A three-
U.S.C. 1539(a)(2)(B)). The Eagle Act has change over a longer period of time such year monitoring period is overly
no such requirement. While that does that a take authorized much earlier burdensome and would not result in
not preclude us from creating such a would later be incompatible with the useful information. Public reporting is
requirement under these regulations, we preservation of the bald eagle or the not accurate or timely. The Service
do not believe a public-comment period golden eagle. Accordingly, we believe should develop a research project to
for each permit would provide an that five years is a long enough period monitor eagles to obtain accurate
additional benefit to eagles that would within which a project proponent can information.
justify the regulatory burden on the identify when the proposed activity will Service response: The monitoring that
public and on our limited staff and result in take. will be required of the permittee is
resources. Comment: The rule should provide relatively minimal yet will serve several
Comment: The permit must be for inspections at any hour with no important purposes. The monitoring
specific as to how much take is notice from the Service. simply entails observing periodically,
authorized and how it will occur. Service Response: The rule provides during the season(s) when eagles would
Otherwise, the permit may that the Service, or a designated agent, normally be present, the area where the
inadvertently grant indemnity for all may inspect the area ‘‘where eagles are take is likely to occur and noting
take, whether anticipated or not. likely to be affected, at any reasonable whether eagles continue to nest, roost,
Service response: Most permits will hour, and with reasonable notice from or forage there. Even this minimal
be specific as to how much take is the Service, for purposes of monitoring monitoring will be important, however,
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authorized and how and roughly when eagles at the site(s).’’ The purpose of the because it will provide the Service with
it will occur. The exception will be inspection is to determine whether the best information available as to how
programmatic permits, which will eagles are using the site, not to surprise human activities impact eagles. If we
authorize take for large-scale and or and scrutinize the permittee’s activities. find that take does not occur as
long-term activities where take is Comment: The final rule should frequently as we anticipated, we can
anticipated but the exact amount, contain provisions for review, denial, adjust the recommendations we provide
location, and timeframes are impossible modification, and revocation. Of in management guidelines and technical
to identify. Rather than ‘‘grant particular concern is the potential assistance. Also, if demand for take is

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high enough to approach take Service response: The PDMP is a Service response: We may include a
thresholds, ascertaining that it did not national-level plan designed for an requirement that monitoring be
occur under some permits could enable entirely different purpose than the conducted by a third party as a permit
us to issue other permits where we monitoring that would be required condition for some larger projects and
otherwise would not. We know that under this permit regulation. The programmatic permits. However,
reporting will not always be accurate, purpose of the PDMP is to detect although it might sometimes improve
but even so, it is our best available declines in bald eagle populations that accuracy, we do not think it would be
option for garnering this data, since we could trigger relisting. The purpose of reasonable to require all permittees to
do not have the staff and resources to the permittee’s monitoring requirements enlist a third party to conduct the
monitor every site ourselves. in this rule is to ascertain whether required monitoring. Also, we are not
Comment: The Service needs to permitted take actually occurs. confident that enough disaffected third-
provide methodology for monitoring. Comment: Is a permittee (such as an party entities would be available to
The Service should be more specific as electric utility) only required to permittees in every location. We believe
to what information is required by implement post-activity monitoring for most permittees will try to provide
‘‘information on eagle use of important three years after the initial construction accurate information. To increase the
eagle-use areas potentially affected.’’ of the site or for ongoing unavoidable chances of that, we added language to
Service Response: The monitoring take? Will its monitoring plan need the annual report form emphasizing that
requirements are relatively simple and Service approval, and will the results (1) filing an accurate report is a
require little in the way of methodology. need to be furnished to the Service? condition of the permit and (2) reporting
The annual report form requires the Service response: Monitoring is the absence of eagles from the
permittee to submit the dates, times and related to the activity that is likely to monitoring site will not, by itself, affect
numbers of eagle sightings at the take eagles. If a project is likely to take the continued validity of the permit.
important use areas where eagles are eagles during an initial construction
likely to be affected. Also, the report phase, but take is unlikely to occur Application and Issuance Process
requires monitoring the site(s) during the subsequent, ongoing use of Comment: The proposed rule requires
periodically during the season that the facility, then monitoring may be the permit applicant to provide a
eagles normally breed, feed, or shelter in required for up to three years after the certification that the proposed activity is
the area, at a time of day when eagles construction is completed. If the in compliance with local, State, and
are most likely to be in the vicinity, if ongoing activity is likely to take eagles, Federal laws. What is meant by
applicable (e.g., for communal roosts in then the monitoring may be required for ‘‘certification’’? Who is responsible for
the evening; for foraging areas, in the up to three years after cessation of the this evaluation?
morning or afternoon). activity. For programmatic permits, the
Comment: The rule should require Service response: We meant that the
permitted industry may develop, in
that monitoring be conducted by application form would require the
coordination with the Service, a
professional raptor biologists. applicant to sign a statement that the
specific, more extensive monitoring
Permittees will not be able to ascertain proposed activity is in compliance with
protocol, adherence to which would be
whether eagles adopt alternative nest a condition of the permit. Otherwise, as other applicable laws. However, we
sites or how the permitted activity may discussed above, monitoring for most have revised the draft application form.
have affected the dynamics of a permits is relatively straightforward and It no longer requires that certification,
communal roost or feeding area. will not require any plan that needs but instead asks the applicant to state
Service response: We agree that more approval from the Service. Monitoring whether he or she has obtained the State
extensive monitoring would be very results will need to be reported on an or tribal authorizations necessary to
useful for purposes of understanding annual basis to the Service, for as long conduct the activity. All of our
how eagles are affected by human as monitoring is required. migratory bird and eagle-related permits
activities. However, we expect that Comment: Monitoring and report data contain the standard condition that the
many permittees will not have the should be provided to the State, Federal authorization is not valid unless
resources to hire professional biologists particularly when activities could affect the activity complies with all other
to perform that service. Our agency also nesting results during State surveys. applicable laws, including State and
does not have the resources to monitor Service response: We will make local laws. Permits issued under this
all project sites. Therefore, the rule monitoring and report data available to regulation will include that condition
requires very minimal monitoring that States and tribes whenever requested (to and clarify that the activity must also be
the average person can easily perform. the degree allowable by laws such as the in accordance with any applicable tribal
However, the rule also provides that the Privacy Act). As with other data we laws.
permittee must allow the Service or a collect, as well as data collected by the Comment: Can a landowner apply for
designated representative to visit the States and tribes, we support the sharing a permit for multiple takes in an entire
area for purposes of monitoring eagle of information that pertains to joint area of ownership that is not
use. During those visits, we should be interests between our governments. contiguous?
able to collect more extensive Comment: The proposal’s reliance on Service response: A landowner can
information regarding the dynamics of permittee self-monitoring is misplaced apply for as many takes as he or she
eagle behavior at the site. Although we and threatens the long-term preservation wants in different locations. However,
do not have the capacity to carry out of eagles. A detailed plan for achieving each take we authorize will have to
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that function at the majority of permit compliance, consistency, and meet the permit-issuance criteria (e.g., it
sites, we can use the data we collect confidentiality is needed. The rule must be compatible with the
from the limited site visits to extrapolate should require monitoring to be preservation of the eagle, cannot be
eagle responses to permitted actions conducted by a disaffected third party practicably avoided, etc.). Depending on
over a larger geographic scale. approved by the Service. Permittees the particular circumstances and in
Comment: The post-delisting should pay into a fund for experienced, order to ensure that issuance criteria are
monitoring plan should be adequate for independent organizations to provide or met, we may authorize only a portion of
purposes of monitoring bald eagles. verify data. the requested take (or all or none).

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Comment: The Service should be Comment: Provisions should be Comment: The proposal implies that
required to coordinate with State added for expedited permit issuance for permits will never be denied because
wildlife agencies when issuing permits. emergency situations. Under the ESA, the number of anticipated applications
The Service should work with the States there are provisions for emergency take (300) is the same as the number of
to develop implementation guidance to that the Service should adopt for eagles, permits the Service anticipates issuing
avoid incompatibilities. wherein the take can be documented (300) (see discussion under Regulatory
Service response: We intend to work through emergency consultation done Planning and Review at 72 FR 31148).
with States to establish protocols for after the emergency response has been Will the Service not deny any permit
coordination between the Service and completed. applications?
States during the permit process. Service response: The Eagle Act does Service response: Our intent is to use
Comment: The rule should contain not allow the Service to authorize bald technical assistance at the Field Office
timelines for how long the Service can eagle take without issuing a permit (16 level to minimize potential take from
take to issue permits. Projects are often U.S.C. 668a). We will make every effort proposed activities. Service Field Office
subject to very specific construction and to expedite issuance of a permit in biologists will assist project proponents
financing constraints. situations where take is unavoidable by assessing whether take is likely to
Service response: Timelines for due to an emergency. If circumstances occur and how it can be avoided or
permit issuance do not belong in a are such that a permit cannot be issued minimized. The Field Office should also
regulation, but rather in internal prior to the take in cases of genuine inform applicants if permits will not be
implementation guidance. We plan to emergencies despite the best efforts of available to them because they do not
include target processing times in the the parties involved, we are unlikely to meet the issuance criteria or because
implementation guidance associated refer such take for prosecution under take thresholds for the species preclude
with this permit program. the MBTA or the Eagle Act. Procedures further issuance of permits. If this
Comment: The Service should for addressing emergency take will be process works successfully, most people
establish the expectation for and a addressed in implementation guidance. who actually submit applications for
process of pre-application consultation Comment: Any eagle take permit must permits will qualify for a permit. Thus,
to direct potential applicants, establish be reviewed under section 106 of the the pre-application process will reduce
the need for a permit, and protect the National Historic Preservation Act take and the need for permits, and serve
eagle resource. It is essential that the (NHPA) because any such take has the as a filter through which qualifying
Service make technical assistance potential to affect historic properties applicants will pass before submitting a
readily available to advise project and culturally significant sites. Eagle completed application. For that reason,
proponents regarding how to avoid nests and other sites where eagles are we anticipate issuing permits for the
impacts and to help in preparation of present may be considered culturally majority of the complete applications
permit applications. However, it significant to Native Americans as well we receive.
appears that neither the Service nor the as other American citizens, requiring We have increased our estimates of
States have the resources for technical the Service to conduct a cultural- permit applications received and
assistance and consultation with resource assessment prior to issuing permits issued to 1,168 applications
applicants. Who will be providing this these permits. received and 910 permits issued,
service (and how) needs to be Service response: We appreciate this annually, under both new permit
addressed. comment, and will comply with Section regulations.
Service response: We agree that 106 on a case-by-case basis when Comment: The Service should
technical assistance is a vital customer issuing permits that have the potential consider ways to allow its Ecological
service. It enables us to provide our best to result in effects on historic properties. Services Field Office staff to handle bald
advice as to whether take will occur and We also plan to consult with eagle and golden eagle permitting on
how to avoid or minimize any take, and appropriate stakeholders, including behalf of the Migratory Birds Division.
at the same time reduces uncertainty for tribes, to develop State or regional Field Office biologists have experience
the public. It will also reduce agreement to govern how the Service and established relationships with
unnecessary permitting workload and will comply with the NHPA when project proponents such as State
better protect eagles. For these reasons, issuing permits to take eagles in specific departments of transportation. Also,
we are committed to providing technical States or regions. having to work with multiple offices
assistance early in the process to the Comment: Even if not on tribal land, will place a burden on applicants.
extent our limited staffing and resources eagles, eagle nests, and other sites have Permitting should be done in
will allow. cultural significance to many Native conjunction with any ESA consultation
Comment: The requirement that the American tribes and tribal members. For that needs to be done as part of the
applicant be responsible for field that reason, tribes should be consulted proposed project.
surveys and providing data on the before any eagle take permit is issued. Service response: We agree that
location of nests and important-use Service response: Before issuing a technical assistance should be
areas is overly onerous and would make permit, we will consult with federally- streamlined where feasible to address
it difficult to apply for a permit. recognized tribes if issuance of the the requirements necessary to comply
Service response: We removed this permit may adversely affect their with more than one regulatory program.
language from the regulation because traditional tribal activities, practices, or In accordance with Service Mitigation
many projects will not require field beliefs; or if issuance of the permit may Policy (501 FW 2), we will provide
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surveys and we felt that language might adversely affect the tribe’s ability to assistance to project proponents in
intimidate people whose activities were regulate, protect, provide services to, or crafting conservation measures early in
relatively straightforward. Nevertheless, otherwise govern their tribal the planning phases of projects so that
it is the applicant’s responsibility to membership, lands and resources. We all conservation mandates are integrated
provide us with a complete application plan to work with tribes to develop into the project rather than introduced
before we can process it. We will assist guidance for us to use when processing later in the planning process. In many
those in need to the degree our staffing permits to manage and resolve tribal cases, other trust resources such as
and resources allow. concerns. wetlands or endangered and threatened

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species may be affected in addition to violation unless an eagle is disturbed or clearly state that its Regional Offices
eagles. Many requests for eagle-take otherwise taken, regardless of whether will coordinate closely with and receive
authorization will be associated with the activity was consistent with the approval (if requested) from any State
projects that have a Federal nexus, National Bald Eagle Management where take would be authorized. Also,
including energy, transportation, water, Guidelines. States need to be kept apprised of the
and restoration projects, and thus could If take does occur, the Service is level of take currently authorized in
be assessed in conjunction with the unlikely to prioritize enforcement each management population. A
section 7 consultation process. The actions against a party that followed the nationwide database accessible to the
Service’s Ecological Services Field Service’s written advice (in the form of States or regular (e.g., bi-weekly) reports
Office staff provide conservation the technical assistance letter) as to to the States may be needed.
planning assistance that uses a what steps were necessary to avoid Service response: As discussed above,
streamlined approach to incorporate the taking eagles. Furthermore, although we will coordinate with States and
requirements of multiple environmental take of bald eagles under the Eagle Act tribes as appropriate. The level of
reviews into a single integrated process. can be authorized only by permit, it is coordination may differ from State to
For example, as provided in our not our goal to encourage applications State (and tribe) depending to some
Habitat Conservation Planning for permits to cover take of eagles that degree on how closely each wants to be
Handbook, we recommend ‘‘integration is in fact very unlikely to occur. We involved. However, we do not currently
of the National Environmental Policy believe our conservation mission is envision seeking approval from the
Act (NEPA) analysis with the other better served by helping the public State or tribe for each permit we issue.
planning and environmental review reduce the likelihood of take, and to The permit is a Federal authorization for
requirements’’ so that ‘‘all procedures provide permits in appropriate an impact to eagles that would
run concurrently rather than circumstances where take is likely (and otherwise be prohibited under Federal
consecutively.’’ Thus, for projects that cannot practicably be avoided). law. If the State or tribal law also
involve other planning and review Comment: The approval process prohibits the action, the Federal permit
requirements in addition to under the should give ‘‘substantial weight’’ to does not insulate the permittee from
Eagle Act, the Field Offices would findings of consistency with a State liability under such State and tribal
integrate the assessment of the impacts management plan where such plans are laws. In addition to our direct
of the eagle take authorization into the consistent with the Eagle Act’s goal of communications with States and tribes,
NEPA process. preservation of the eagle (examples: FL we will try to ensure that permit
After projects are designed with the and MD Chesapeake Bay Critical Area applicants understand the need to
technical assistance provided by our Program). comply with State and tribal laws and
Field Offices, the project proponent will Service response: We encourage regulations.
submit his or her completed application consistency with State management We like the idea of a database we
to the Regional Migratory Bird Permit plans. However, the need for Eagle Act could make available to States and
Office for processing. authorization is not based on State land- tribes, and may pursue that option if we
Comment: Permits should be use planning or habitat protection. have the resources to do so. Biweekly
expedited for recipients of technical Though we recognize the vital reports are probably not a realistic
assistance letters. Recipients of importance of those tools in protecting option due to limited staffing and busy
technical assistance letters that eagles, the Eagle Act directly protects schedules, but are not out of the
authorized activities inconsistent with eagles, eggs, and nests, rather than question. At a minimum, we anticipate
the National Bald Eagle Management habitat. State management plans such as working with the Flyway Nongame
Guidelines may be subject to Eagle Act the ones cited by the commenter are Technical Committees to keep them
prosecution. designed to help guide development apprised of applications that are likely
Service response: Technical assistance away from areas that may be more to be of high interest, as well as pending
letters did not provide any authorization important to eagles or other wildlife or and issued permits in their States. We
to take eagles. The only means available natural resources. To the degree that a hope to establish a process comparable
to gain authorization to take eagles take that is consistent with a State to the Flyway structure, but comprised
under the ESA was by means of the management plan may be more of representatives from tribal wildlife
permit issued under section 10 or an compatible with the preservation of the agencies to allow us to share
incidental take statement issued under bald eagle or the golden eagle, we are information with tribes in a coordinated
section 7. The role of technical more likely to authorize it. However, we manner.
assistance letters was to inform the will evaluate it under the statutory Comment: To ensure that State
landowner or project proponent that the mandate of the Eagle Act rather than a programs for eagle management are
Service did not consider take likely to State management plan. At the same considered before permits are issued,
occur. Generally we issued these letters time, we plan to establish protocols for the Service should develop a
after providing technical assistance to coordination with States and tribes comprehensive compilation of State
the project proponent that included during the permit review process. Some regulations for both species, including
recommended modifications to the will desire a greater degree of how take is defined and regulated in
planned activity to minimize the coordination than others, but we will each State, and it should be published
possibility of take, and after the project involve the States and tribes in in the final EA.
proponent agreed to incorporate the developing processes for coordination Service response: We agree that a
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measures. Technical assistance letters between agencies. compilation of State and tribal
do not authorize take should it occur Comment: The Service needs to regulations could be useful and have
despite the recommended measures; address how it will ensure compliance included a simplified version of such in
only a permit or incidental take with State regulations, particularly in Appendix B of the FEA. However, to do
statement could absolve a person of light of the need to protect local full justice to the complexity and
liability for take of eagles. In situations populations. Because most States do not nuances of the different approaches
where these letters were issued and the have a regulatory process to address taken by States and tribes in protecting
activity proceeds, there is no Eagle Act much of this take, the Service should eagles would require considerably more

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time, effort and resources than we have unless a permit is procured from the by the applicant in coordination with
been able to supply for such an effort at Secretary of the Interior. However, the Service and will be scientifically-
this time. There is enormous variation within our statutory authority and to the supportable measures representing the
in how States and tribes manage eagles. degree that is compatible with the best-available techniques designed to
Some have no regulations that pertain to preservation of eagles, we intend to reduce disturbance and ongoing
eagles specifically, some are habitat explore ways of streamlining the permit- mortalities to a level where remaining
management plans, some are permit issuance process, which might include take is unavoidable.
programs, but the prohibitions are not issuing a ‘‘Master permit’’ to other Comment: Will lethal take permits be
the same as Federal prohibitions, while agencies, allowing them to allocate take issued for industries that have no such
others have similar or even stricter authorization where needed. One of measures?
prohibitions but completely different many complicating factors is that Service response: These regulations
issuance criteria for permitting. This requests for permits may exceed what allow us to authorize take that results in
high degree of variability may be would be compatible with eagle mortality as long as the issuance criteria
difficult to capture in a single, user- preservation in some areas, in which for a standard permit under this section
friendly compilation. More effective, at case the issuance criteria governing are met, but would not allow us to issue
least for the short term, will be for each prioritization to certain interests (safety a permit for programmatic take without
Service Regional Migratory Bird Office emergencies, Native American religious development and implementation of
to familiarize themselves with the laws needs, and so forth) will come into play. ACPs.
and regulations of States and tribes If permits are ‘‘re-distributed’’ by a third Comment: Programmatic permits will
within their respective regions that party, the coordination needed to ensure increase mortalities by giving the
apply to eagle management. We already the prioritization issuance criteria are perpetrators a ‘‘free pass.’’
operate in this manner when issuing met could be rather challenging. Service response: The design and
other types of permits. For example, we intent of programmatic permits is
Programmatic Permits
will not issue a permit to possess a red- exactly the opposite of what the
tailed hawk in Hawaii, because Hawaii Comment: The June 2007 proposed
commenter suggests. Programmatic
regulations do not allow raptors within rule suggested that permits for lethal
permits will be issued and valid only
the State. take would only be available if the take
where the applicant/permittee
Comment: The government should was unavoidable and best management
implements rigorous conservation
give the tribes notice of all pending and practices (BMPs) are being
measures to reduce take to the point
future applications for permits, implemented. The proposed definition
where it is unavoidable.
particularly where eagles may be of ‘‘unavoidable’’ is flawed because it
relies on industry-accepted measures for Comment: The regulation should be
affected on or near tribal lands.
Service response: As with States, avoiding take, but in most clear that development of programmatic
some tribes will want closer circumstances, industry-accepted permits will entail coordination with
coordination with us than others. We measures will not be all that can be States where the activity will occur.
plan to work with each tribe that is done to avoid take. Are the BMPs Service response: We envision close
interested to establish implementation limited to those developed specifically coordination with States and tribes
protocols regarding the level of for the purpose of reducing eagle when developing programmatic permits.
coordination desired by the tribe. mortality? What would happen if We will address such in forthcoming
Comment: The regulation needs to different BMPs proscribe conflicting implementation guidance, which we
include stronger, more explicit language actions? Clarification is needed as to intend to develop in coordination with
regarding the need to be compliant with what constitutes lethal take; disturbance States and tribes, as well as the general
tribal law. can sometimes result in eagle public, via a public comment period.
Service response: The requirement to mortalities. Comment: The Service should codify
be in compliance with other laws and Service response: Our reference to programmatic permit conditions
regulations is a standard condition of all BMPs caused understandable confusion through the Federal Register process.
Service Migratory Bird permits and it is because it was interpreted to mean any Service response: Programmatic
spelled out on the face of each permit. type of industry-accepted BMPs for the permits are designed to reduce
However, to ensure this condition is conduct of the activity, regardless of mortalities and other take. In our view,
given sufficient weight, we have added whether the BMPs were designed to a public comment period for each
the following new regulatory language reduce eagle mortalities or serve some programmatic permit would not provide
to the permit conditions in both § 22.26 entirely unrelated function (such as an additional benefit to eagles sufficient
and § 22.27: ‘‘The authorization granted human safety and hygiene). Our intent to justify the delay, regulatory burden,
by permits issued under this section is was that the BMPs would have to be and the substantial additional resources
not valid unless you are in compliance designed to reduce eagle mortalities and from our agency needed to navigate the
with all applicable Federal, tribal, State, other take of eagles. We have revised Federal Register process.
and local laws and regulations this part of the rule. Rather than Comment: Programmatic permits are
applicable to take of eagles.’’ referencing BMPs, we are clarifying that not acceptable unless the Service retains
Comment: The Service should issue we will work with industries to develop the authority to decide what constitutes
programmatic permits to the Corps, what we are calling ‘‘Advanced advanced conservation practices,
other Federal agencies, and State Conservation Practices’’ (ACPs), required mitigation, and how much take
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agencies, allowing them to provide take designed specifically to reduce take of is unavoidable.
authority subject to their own programs eagles (and sometimes other migratory Service response: Although we will
where they are consistent with the Eagle birds). Implementation of ACPs will develop ACPs in coordination with
Act’s requirements. qualify some entities for programmatic applicant industries and other entities,
Service response: Our ability to take permits, and can be used to the Service will make the final decision
delegate permit authority to outside authorize ongoing unavoidable as to what measures constitute the ACPs
agencies is limited because the Eagle disturbance as well as unavoidable that will serve as required conditions of
Act does not allow take of bald eagles mortalities. The ACPs will be developed programmatic permits.

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Comment: Current best management responses to the permitted activity may responsible for the take. There will be
practices such as those developed by the warrant re-examination of the effects of some situations where one industry
Avian Power Line Interaction the permitted activity and re-evaluation takes eagles in part because of the
Committee (APLIC) should be the of the permit conditions. actions of another entity. Even then,
baseline, and more should not be Comment: Programmatic permittees however, the liability would usually be
required to get a permit. should not be subject to enhanced shared. An example would be a railroad
Service response: The voluntary monitoring and reporting requirements; company with trains that sometimes
recommendations for avoiding avian so long as the ACPs are being carried strike bald eagles that are attracted to an
mortality developed by APLIC are much out, no further information should be artificially baited site nearby. The
more comprehensive than any we are necessary for the Service to know as far person feeding the eagles may be in
aware of for other industries. However, as population impacts are concerned. violation of the Eagle Act because of its
most utilities that have adopted them Service response: See our response to prohibition on disturbance, since the
have done so in a relatively piecemeal the comment above. Also, the feeding interferes with normal feeding
manner, using some recommendations monitoring we will require for behaviors and results in injury of eagles,
in some areas, applying others in programmatic permits will not be large- which meets the definition. However,
different places, and very rarely scale population monitoring (such as the railroad company is also in
implementing all the measures that the bald eagle post-delisting monitoring violation, since its trains are actually
could be used to reduce eagle plan). Rather, the monitoring required of killing eagles. In a situation this
mortalities. Furthermore, there are programmatic permittees will be straightforward, enforcing against the
practices over and above what APLIC focused on assessing how effective the feeder would be appropriate, and would
recommends that could further reduce ACPs actually are, how much take is reduce eagle mortality to a point where
take in some situations. Programmatic actually occurring, and overall eagle the only remaining, effective measures
permits are premised on the permittee presence and use of the project area. to further reduce take would be the
implementing all achievable measures This type of information will be critical railroad company’s responsibility. If one
to reduce take to the point where it is for evaluating the impact of the permit entity’s actions are not themselves a
unavoidable. program on eagles, as well as for crafting violation but do contribute to a violation
Comment: Programmatic permits future guidance for minimizing human on the part of another entity, we
must include provisions to safeguard impacts outside the permitting program envision that a dialogue would be
local populations (geographic limits) as necessary to maintain healthy eagle necessary between the two actors to
and mechanisms to restrict permits populations. arrive at joint measure to reduce take.
when and where populations decline. Comment: The final rule must provide We may aid in the process of dialogue
Programmatic permits should contain for the situation where there are no if we have the resources, but the
provisions subjecting them to revocation practicable ACPs that can mitigate responsibility to comply with the Eagle
if eagle take resulting from the activity ongoing, unavoidable take. Act preceded the existence of this
is greater than anticipated. Service response: There are probably permit program, and remains with the
Service response: We have added the very few situations where nothing can actors regardless of the availability of
following language to both permit be done to reduce impacts to eagles. All these permits.
regulations: ‘‘The Service may amend, sorts of factors will be in play, such as Comment: The process for developing
suspend, or revoke programmatic timing and siting of the activity; timing industry metrics should be set forth in
permits if new information indicates and siting of surrounding activities the rule.
that revised conditions, suspension, or being conducted by different entities Service response: At this time, we
revocation is necessary to safeguard that can come to the table; technological have not established a process for
local or regional eagle populations.’’ advances; additional staff; and other developing industry metrics. We plan to
Comment: Programmatic permits factors. Creativity may be required in do so as part of crafting implementation
should be issued for multi-year periods some cases to find effective, achievable guidance. There will be an opportunity
to provide certainty. measures. However, in the rare situation for public notice and comment before
Service response: Most programmatic where all parties agree that nothing can any such process is formalized.
permits will be issued for the full five be done to decrease the take from an Comment: The final rule should make
years that a permit can be valid under activity that is a legitimate interest in a clear that industry standards can be
these regulations. Furthermore, renewal particular locality, compensatory developed over time as various entities
of programmatic permits will have mitigation can be used, and the from different locations (with different
priority over other permits for eagle take measures required for compensatory conditions) apply for permits, and it is
except to address safety emergencies mitigation would need to result in a not necessary for the entire industry to
and meet the religious needs of tribes. reduction of take at a different location be regulated with a national standard.
Comment: There should be no time and/or from a separate activity. Those Service response: Yes, our intent
limit for programmatic permits because measures would be the ACPs for the mirrors what the commenter suggests:
they are based on the premise that there permit. we anticipate that ‘‘an industry’’ will
is nothing more the permittee can do to Comment: The final EA and often be a single large utility, or one
minimize take. regulation should make clear that the major railroad line, or one
Service response: We expect that permitted entity may implement transportation agency. Circumstances
circumstances will often change such measures that do not fully avoid or for that single entity may be quite
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that the original ACPs may no longer be minimize take where doing so is not different than for a comparable entity in
considered the most effective measures within the authority of the entity. another part of the U.S., warranting
that could be adopted. There are likely Service response: Generally, if ACPs that might be ineffective or
to be technological advances in some measures to reduce take are outside the counterproductive if applied elsewhere.
industries that would warrant adoption authority of the entity, then liability for ‘‘An industry’’ could also be an
of new, more effective conservation the take rests elsewhere too. Usually, association of participating smaller
measures. Also, new information whoever has the authority to affect the entities who will be permitted under the
regarding eagle biology, behavior, and level of take will be the entity standards developed by the association.

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We agree that industry standards will well. It may not be feasible for an measures will factor in the ‘‘cost of
evolve over time. After several industry to demonstrate the remedy comparative with proponent
programmatic permits are in place for effectiveness of the ACPs or to fully resources,’’ a programmatic take permit
one type industry, we may, in implement them prior to obtaining the will be available only if the applicant
developing ACPs for another entity permit. We envision that in many cases, can implement all available,
within the same industry, arrive at programmatic permits will be issued technically-achievable measures to
superior measures that can be achieved. before all ACPs are completely reduce take. We believe this higher
If appropriate, those can be applied to implemented; however, the validity of standard is necessary to protect eagles
the earlier programmatic permits when the permit is conditioned on from large-scale and cumulatively
those permittees apply for renewal. implementation of ACPs where the take significant take.
Comment: Programmatic permits occurs. In other words, if ACPs are Comment: Will the development of
should not include an estimate of phased into a project, any take that programmatic permits be subject to
mortality because: (1) it is too difficult occurs outside of the area where the NEPA? A full environmental analysis
to estimate; (2) even if the ACPs are required ACPs have not been must be done on a case-by-case basis for
effective, increasing eagle populations implemented, is not authorized by the programmatic permits.
can still result in increased mortality, permit. Service response: Programmatic
and (3) by definition, the ongoing Comment: Programmatically permits will each be subject to NEPA.
operations will improve mortality rates. authorizing eagle mortalities under the Comment: The regulations should
Service response: We think estimates Eagle Act is of limited value to the include the requirement that industry
of mortality are possible. The Eagle Act power industry because utilities will standards required for programmatic
requires that we determine that take is still be liable under the Migratory Bird permits must specifically include
compatible with eagle preservation prior Treaty Act for incidental take of other facility-siting criteria.
to issuing a permit. Therefore, if data on birds, since no permit is available for Service response: The location of
effects of an activity on eagles are so incidental take under the MBTA. facilities often can have significant
spotty that no estimate is possible, a Service response: No permit is impacts to eagles (e.g., wind farms), and
permit may not be appropriate. The only currently available to authorize some industries may be able to reduce
activities that will qualify for incidental take under the MBTA. take substantially by selecting particular
programmatic permits are those that However, many of the ACPs that would sites over others. However, for other
have been studied fairly rigorously in minimize eagle take will also reduce industries or entities seeking
order to develop comprehensive ACPs other avian mortalities with the result programmatic permits, location of
to reduce take to the maximum level that utilities that implement the ACPs facilities may not be a primary factor in
achievable. This level of research under these Eagle Act regulations will reducing eagle take, and for that reason
should typically yield data sufficient to minimize take of other migratory birds we have not included language in the
develop reasonable estimates of eagle in addition to eagles, decreasing their regulations to require facility siting
mortality before and after liability under the MBTA. The Service criteria as conditions of the permit.
implementation of the ACPs. focuses its enforcement resources on However, we intend to ensure that siting
Comment: Programmatic permits investigating and prosecuting criteria are emphasized in the
should not be issued for unlimited take; individuals and companies that take implementation guidance that we will
otherwise there will be no incentive to migratory birds without regard for the develop for programmatic permits and
pursue additional methods to minimize consequences of their actions and the adopted where applicable.
take. law, especially when available
Service response: Programmatic Definitions
conservation measures have not been
permits will all include estimates of implemented. Comment: Adding ‘‘destroy’’ to the
take. To ensure that take does not Comment: It would be impossible to ‘‘take’’ definition enlarges the statutory
continue to be authorized if it exceeds demonstrate that all avoidable eagle definition of ‘‘take,’’ but the Service has
the estimate and is incompatible with mortality has been eliminated. no authority to do so. The Service
the eagle preservation, we added a Recommended practices cannot should say what the intended effect is
condition to each regulation that we can completely eliminate the risk of of adding ‘‘destroy’’ to the definition of
amend, suspend, or revoke a mortality. Programmatic permits should ‘‘take.’’
programmatic permit if ‘‘new not be based on a standard of Service response: We have the
information indicates that revised ‘‘unavoidable’’; rather, they should be authority to define ‘‘take’’ in a way that
conditions, suspension, or revocation is based on the practicability standard includes more than just the specific
necessary to safeguard local or regional applied to individual permits. examples Congress included in the
eagle populations’’ (§ 22.26(c)(7) and § Service response: We agree it would statutory definition. The Eagle Act,
22.27(b)(8)). be impossible to demonstrate that all expressly states ‘‘take includes also
Comment: It should be possible to avoidable eagle mortality has been pursue, shoot, shoot at, poison, wound,
meet the requirement that an applicant eliminated. What we expect instead is kill, capture, trap, collect, molest or
demonstrate reduced mortality before that the permittee fully implement the disturb.’’ 16 U.S.C. 668c (emphasis
getting the permit via scientifically- ACPs agreed to by the Service as added). If Congress had intended to
based predictions, rather than requiring conditions of the permit, which are restrict the definition to the terms
field data; many operations will not measures designed to reduce take to the included in the Act, it would have
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have good historical baseline with maximum degree achievable. The stated what take means, not what it also
which to compare data. standard for programmatic permits is includes. The intended effect of adding
Service response: If an applicant for a higher than the practicability standard ‘‘destroy’’ is to clarify the meaning of
programmatic permit cannot establish a applied to ‘‘individual’’ permits because ‘‘take’’ in a way consistent with
historical baseline, we may use programmatic permits authorize more Congressional intent. Legislative history
estimates of take based on predictions take on a larger scale than individual demonstrates that the Eagle Act was
generated by sound scientific research. permits. Where an individual intended to protect nests from
This applies to development of ACPs, as permittee’s required conservation destruction, and we have previously

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interpreted ‘‘take’’ to include Comment: Additionally, the terms not necessarily entail permanent
‘‘destruction.’’ However, as written, the within the phrase ‘‘important eagle-use rejection of the nest. In fact, the
statutory definition of ‘‘take’’ does not area’’ need to be defined (e.g., ‘‘foraging Guidelines specifically state that ‘‘nest
include any term that explicitly applies area,’’ ‘‘communal roost site’’). abandonment occurs when adult eagles
to nest destruction. Therefore, we are ‘‘Foraging area’’ should be defined desert or stop attending a nest and do
adding ‘‘destroy’’ to the regulatory narrowly to mean only those areas used not subsequently return and
definition to codify our long-standing during migration and wintering periods successfully raise young in that nest for
informal interpretation and to ensure at traditionally-used sites, perhaps as the duration of a breeding season.’’
that the public has adequate notice of those ‘‘containing traditionally-used NBEMG, p. 17 (emphasis added).
this interpretation. concentrations of preferred prey.’’ We based the definition of ‘‘eagle
Comment: By defining ‘‘important Service response: We agree that nest’’ on the existing regulatory
eagle-use area,’’ the Service has gone defining ‘‘foraging area’’ and definition of ‘‘golden eagle nest’’ (50
beyond its statutory authority. The ‘‘communal roost site’’ would be helpful CFR 22.3), which has no expiration
definition ‘‘appears to cast a wide and we have done so, as follows: date. As we note in the Guidelines, the
regulatory net over areas that may be ‘‘foraging area’’ means ‘‘an area where probability of disturbance occurring at a
used by eagles’’ by implying that eagle eagles regularly feed during one or more nest decreases the longer the nest goes
take permits will be required for seasons’’; ‘‘communal roost site’’ means unused. However, it would be arbitrary
activities within these areas. Also, who ‘‘an area where eagles gather repeatedly to state a time limit after which an eagle
will determine what is ‘‘essential’’ to the in the course of a season and shelter nest no longer meets the definition of a
viability of the eagle? What if the overnight and sometimes during the day nest, given that suitable nest sites are
important eagle-use area is on someone in the event of inclement weather.’’ Not limited in many areas of the country
else’s property? all foraging areas and communal roost and are often re-occupied by eagles after
Service response: Defining a ‘‘term of sites are important enough such that many years of disuse. The definition
art’’ is not the same as regulating it. interfering with eagles at the site will provided by this rule is consistent with
Sometimes, as in this case, a definition cause disturbance (resulting in injury or the long-standing definition of golden
can be used in order to refer to multiple nest abandonment). Whether eagles rely eagles nests and better satisfies the
objects by applying a single name to on a particular foraging area or statute’s intent to protect eagles by
them as a group, eliminating the need to communal roost site to that degree will protecting nests: until the structure is no
reiterate each component of the group depend on a variety of circumstances— longer ‘‘readily identifiable as a
whenever they are referenced. most obviously, the availability of structure that is built, maintained, or
In this case, because eagles can only alternate sites for feeding or sheltering. used by eagles for purposes of
be disturbed if their breeding, feeding, Comment: ‘‘Important eagle-use reproduction,’’ it is protected as a nest
or sheltering behaviors are substantially areas’’ should include migration by the Eagle Act.
interfered with, disturbance is likely to corridors. Comment: Clarification is requested
occur near important breeding, feeding, Service response: We agree that take as to whether the definition of ‘‘nest’’
and roosting areas. Therefore, in of eagles within migratory corridors is a includes alternate nests as well as the
assessing whether disturbance is likely significant concern with regard to primary nest site.
to occur, it is logical to evaluate the certain activities, particularly wind- Service response: To clarify that the
relationship between the potentially power facilities. However, we think the definition includes alternate nests, we
disturbing activity and the important majority of applicants for individual revised it by changing ‘‘a’’ to ‘‘any.’’ The
breeding, feeding, and sheltering areas. permits will not be engaging in definition now reads: ‘‘any readily
To more succinctly address this activities that are likely to take eagles in identifiable structure built, maintained,
concept, we will use the term migration corridors, so have left them or used by bald eagles or golden eagles
‘‘important eagle use-area’’ to refer to out of the definition of ‘‘important for the purpose of reproduction.’’
one or more of the areas where eagles eagle-use areas.’’ Comment: The rule should use the
will potentially be disturbed by an Comment: ‘‘Nest’’ should be defined definition of ‘‘eagle nest’’ already in the
activity. Naming this term in no way more narrowly than was proposed, to Code of Federal Regulations.
extends our regulatory reach over these account for whether the structure was Service response: In addition to
areas, but rather provides a logical ever used, has been abandoned, or is applying to bald eagle nests as well as
means to evaluate potential take. It does occupied by great-horned owls, etc. The golden eagle nests, the new definition
not matter on whose property the proposed definition is inconsistent with differs from the old one in two ways.
important eagle-use area is located; the the five-year period specified in the First, the new definition substitutes
important eagle-use area is not being Guidelines after which a nest can be ‘‘used’’ for ‘‘occupied’’ in order to avoid
regulated. What is regulated are certain considered abandoned for purposes of confusion with the term as used in
impacts of an activity on eagles. maintaining the buffers recommended scientific literature where it has very
Finally, what is ‘‘essential’’ to the in the Guidelines. The definition should specific connotations. Second, the new
viability of the site for breeding, feeding, limit nests to those that are maintained definition replaces ‘‘for propagation
and sheltering eagles will depend on the or used within twelve months. purposes’’ with ‘‘for purposes of
various factors that affect the degree to Service response: The Guidelines do reproduction,’’ because ‘‘propagation’’
which eagles depend on the site. Those not define a nest as ‘‘abandoned’’ after sometimes refers to human-induced
best able to evaluate what is ‘‘essential’’ five years. The Guidelines suggest that breeding, whereas ‘‘reproduction’’ more
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are likely to be State and Federal buffers may no longer be warranted after plainly means what is intended.
biologists or other eagle experts. Many five years of disuse because the Comment: The definition of ‘‘inactive
important eagle-use areas are well- likelihood of disturbing eagles is nest’’ is inconsistent with the National
documented, and even where not decreased by that point. However, under Bald Eagle Management Guidelines,
specifically documented, bald eagles are the Guidelines, the term ‘‘nest which use the terms ‘‘active nest’’ and
relatively well-surveyed, and much is abandonment’’ has no relation to that ‘‘alternate nest.’’
known about behaviors of eagles in five-year period. The definition of ‘‘nest Service response: The NBEMG use the
particular localities. abandonment’’ in the Guidelines does following terminology: An ‘‘active nest’’

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is a nest that is attended (built, evidenced by lack of attendance for at finalized by this rulemaking, a permit
maintained or used) by a pair of bald least 10 days (whether within or outside can be issued for an active nest only if
eagles during a given breeding season, of the nesting season) its removal would the location of the nest poses an
whether or not eggs are laid. An have significantly different impacts to immediate threat to safety. This
‘‘alternate nest’’ is a nest that is not used eagles than removal of a nest that is definition is intended to be applied only
for breeding by eagles during a given occupied or attended during the past 10 to questions of whether or not a nest
breeding season (NBEMG, pg. 17). The days for purposes of breeding, leading to may be taken with reduced risk of
definition of ‘‘inactive nest’’ in these the designation in the regulations of associated take of birds. It is not
regulations is not consistent with the such nests as ‘‘inactive nests.’’ intended to convey any other biological
terminology applied in the Guidelines Comment: The definition of ‘‘inactive status.
because the definitions serve different nest’’ is inconsistent with the existing We will consider whether the nest is
purposes. The Guidelines distinguish definition. the only one in the territory. If the take
between ‘‘active’’ and ‘‘alternate nests’’ Service response: The new definition is not necessary to alleviate a safety
in order to recommend different is consistent with the old definition, emergency, before issuing a permit we
practices to avoid disturbing eagles. An which, in any case, is being removed. must find that ‘‘suitable nesting and
‘‘alternate nest’’ as defined in the The new definition differs primarily in foraging habitat is available to the area
Guidelines is not the same concept as an that it includes bald eagle nests as well nesting population of eagles to
‘‘inactive nest’’ in the regulations. As as golden eagle nests. The second accommodate any eagles displaced by
defined in the Guidelines, an ‘‘alternate difference is replacement of the phrase the nest removal’’ (§ 22.27(e)(6)).
nest’’ can also be an ‘‘active nest’’ if it ‘‘absence of any adult, egg, or dependent Comment: Is a nest considered
was attended during the breeding young at the nest for 10 days before the ‘‘abandoned’’ under the Guidelines still
season, but not used for breeding. This nest is taken’’ with ‘‘continuing absence protected by the Eagle Act? The rule
distinguishes it from a nest that is of any adult, egg, or dependent young at should clarify how the Eagle Act applies
completely unattended during the the nest for 10 consecutive days in this case. Does it prohibit only
course of a breeding season (which had immediately prior to, and including, at removal of the structure?
present.’’ The change serves dual Service response: A nest that has been
it been defined, might have been called
purposes. First, it eliminates the abandoned is not necessarily
an ‘‘inactive nest,’’ although that
inadvertent implication in the old permanently abandoned and remains
definition should also include any nest
definition that a nest cannot be inactive protected under the Eagle Act. The
outside the breeding season). The
unless it has been taken. Second, it NBEM Guidelines refer to nest
Guidelines recognize that disturbance
clarifies that the period of when the nest abandonment as follows: ‘‘Nest
can only occur if eagles at some point
is not attended has to be current in abandonment occurs when adult eagles
notice something that agitates them (in
order for the nest be considered desert or stop attending a nest and do
addition to other factors), and therefore
inactive. The last difference is the not subsequently return and
an eagle could be disturbed at an successfully raise young in that nest for
addition of the following sentence: ‘‘An
attended nest during the breeding the duration of a breeding season ....
inactive nest may become active again
season, thereby causing the attended [N]est abandonment can occur at any
and remains protected under the Eagle
nest to become alternate. Therefore, point between the time the eagles return
Act.’’ This sentence is included to
recommendations for conducting to the nesting site for the breeding
clarify that nests that become inactive
activities during the nesting season near season and the time when all progeny
generally retain significant biological
nests that might go either way (might from the breeding season have
value to eagles, and are subject to the
become alternate nests or might be used same prohibitions against take as active dispersed’’ (NBEMG, p. 17).
for breeding purposes), when no nest nests. None of these revisions are By ‘‘a nest considered abandoned
has yet been definitively selected by inconsistent with the old definition of under the Guidelines,’’ the commenter
eagles in the territory, are as strong as ‘‘inactive nest.’’ may have been referring to the Service’s
for nests that are selected for breeding Comment: Because an inactive nest recommendations for nests that have not
purposes. may become active again and remains been active for five years, in which case
In contrast, the regulations protected under the Eagle Act, there the Guidelines suggest that the buffer
distinguish between nests that are not should be no distinctions in the level of distances the Service recommends
being used at present for breeding protection afforded to active and around nests may not need to be
purposes (including the 10 days just inactive nests. Designation of the nest as maintained at that point, since, in
prior to an egg being laid) to ensure inactive for the purposes of this rule general, the probability of disturbing
there is no associated take of eggs or might allow for easier granting of eagles at nests that have not been
nestlings, and that eagles are not permits, even though such a nest might attended for five years is decreased.
prevented from laying eggs in a nest be the only nest structure within a However, as the Guidelines continue on
they have selected to breed in that particular pair’s territory. to state, ‘‘[t]he nest itself remains
season. An ‘‘inactive nest’’ under the Service response: The reason for protected by other provisions of the
regulations would theoretically include distinguishing between active nests and Eagle Act, however, and may not be
some nests deemed ‘‘active’’ under the inactive nests and for defining the term destroyed’’ (NBEMG, pg. 11).
Guidelines if it was attended by eagles ‘‘inactive nest’’ is because the new nest- Comment: ‘‘Territory’’ should be
during that breeding season (at least 10 take-permit regulation, as well as defined in the regulation.
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days prior), but not used for breeding existing regulations for take of golden Service response: This comment was
purposes. The aim is different: eagles at eagle nests for resource development made on the June 5, 2007, proposed
that nest could have been disturbed and recovery operations (50 CFR 22.25), rule. The regulations governing nest
during the earlier period when they regulate nests differently depending on removal (new § 22.27) use the term
attended the nest—hence its designation whether they are currently active or ‘‘territory’’ to refer to the area where a
as ‘‘active’’ under the Guidelines to inactive. Under existing § 22.25, a nest could potentially be relocated.
minimize that possibility. But if eagles permit may only be issued for inactive When we released the DEA and re-
are not using it for breeding purposes as nests. Under the regulations being opened the comment period on the rule,

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we proposed to define ‘‘territory’’ as ‘‘a reasonable and practicable. For was unacceptably broad and subjective,
defended area that contains, or example, it may not be practicable to particularly when used as a qualifying
historically contained, one or more find a new site for a proposed large- factor for nest removal. For example, it
nests within the home range of a mated scale wind turbine project in order to could be argued to include any activity
pair of eagles, and where no more than avoid disturbing one nesting pair of that increases a locality’s tax base,
one pair breeds at a time.’’ eagles, whereas it may be considered which could include any commercial
Comment: The last 10 words in the practicable to find an alternative if the activity, and this was not our intent
proposed definition of ‘‘territory’’ site originally proposed was within a because we do not believe it accords
(‘‘where no more than one pair breeds major migration corridor for golden with Congressional intent underpinning
at a time’’) should be deleted, since this eagles and would likely result in the Eagle Act. Although the Eagle Act
changes from year to year. significant eagle mortalities. does incorporate protection of private
Service response: We deleted those Comment: The definition of interests (e.g., protection of livestock
last 10 words from the final definition ‘‘practicable’’ must not include any from depredating eagles), the language
so that it reads: ‘‘[t]erritory means a consideration of the applicant’s and legislative history of the statute
defended area that contains, or financial resources. (Some commenters convey a greater degree of protection for
historically contained, one or more asserted such a consideration would eagle nests than for individual eagles.
nests within the home range of a mated result in too high a bar for large projects For that reason, we replaced the over-
pair of eagles. with resources, while others were broad term ‘‘the public’s welfare’’ with
Comment: The definition of concerned it would result in too low a the narrower concept of ‘‘public health
‘‘territory’’ should not include the word bar because applicants will always and safety.’’ This will encompass
‘‘historically’’ because that would claim not to have enough resources to projects that are genuinely necessary to
encompass areas that eagles have not avoid or minimize impacts.) protect people, while excluding projects
occupied for many years. Perhaps it Service response: We believe that may have only intangible benefits
could be modified to read ‘‘recently ‘‘practicable’’ inherently encompasses incommensurate with the negative
contained’’ or ‘‘within 10 years.’’ consideration of what the proponent can impact to eagles from removing a nest.
Service response: We considered muster and marshal towards achieving a The rule also provides that a nest may
removing the word ‘‘historically’’ and goal, whether it be money, time, be taken for any purpose as long as there
adding some limit to the time frame in ingenuity, or other factors that is a net benefit to eagles provided either
which a territory could be considered a contribute to the chances of being able by the activity itself or mitigation for the
territory, but rejected the suggestion to accomplish something. Our inclusion activity. Had we more time to develop
because a time frame would be arbitrary, of the phrase ‘‘the cost of remedy this rule, we might consider adopting a
and the phrase ‘‘recently contained’’ comparative with proponent resources’’ permitting system wherein nests with
does not have any biological basis. was intended to confirm the integral lesser biological value could be removed
Primarily, we opted to leave role such a consideration plays in for a broader range of purposes without
‘‘historically’’ within the definition determining what is practicable. For requiring the permittee or activity to
because the rule does not use the word more discussion on this issue, see our provide a net benefit to eagles. However,
‘‘territory’’ to restrict or authorize any related responses to comments under due to the importance of finalizing this
action. The statute itself does not the heading Scope and Criteria of 22.26. rulemaking expeditiously, the analysis
protect or even reference territory. Its Comment: The rule should define of the merits, complexities, and
only use within these regulations is to ‘‘public welfare’’ as ‘‘the well-being of a potential drawbacks of such an
refer to the area that will be considered community, state, region, or nation in approach, if undertaken, will have to be
when a nest can feasibly be relocated matters of health, safety, or order.’’ addressed in the implementation
‘‘within the same territory to provide a Service response: When we released guidance for this regulation or in a
viable nesting option for eagles within the DEA and re-opened the comment future rulemaking.
that territory, unless such relocation period on the proposed rule, we Comment: The definition of ‘‘public
would create a similar threat to safety’’ proposed to base some aspects of the welfare’’ is too broad and vague and
(§ 22.27(a)(2)). new permit programs on the concept of greatly exceeds the purposes for which
Comment: The definition of ‘‘necessary for the public’s welfare,’’ golden eagle nest take now can be
‘‘practicable’’ is of central importance which we proposed to define as permitted. Clarification is needed as to
and should be incorporated into the ‘‘needed to maintain society’s well- what specific types of activities will fall
regulation. being in matters of health, safety, and under ‘‘public welfare.’’
Service response: We agree and have order.’’ Service response: We agree that ‘‘the
defined ‘‘practicable’’ in the regulation We would have used the concept public’s welfare’’ was too vague a
as ‘‘capable of being done after taking when demand for take exceeds what is concept and very difficult to define. As
into consideration, relative to the compatible with the preservation of the discussed in the preceding response, the
magnitude of the impacts to eagles: (1) bald eagle or the golden eagle, to ensure final rule incorporates the narrower
the cost of remedy comparative with that take that is necessary for the concept of ‘‘public health and safety.’’
proponent resources; (2) existing public’s welfare be prioritized over Comment: ‘‘Public welfare’’ should
technology; and (3) logistics in light of other take for other purposes except for not include transportation projects,
overall project purposes.’’ The phrase Native American religious use and which should be treated like any
‘‘relative to the magnitude of the safety emergencies. The concept would construction or development.
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impacts to eagles’’ is important because also have been central to issuance of Service response: We replaced the
whether something is practicable is eagle nest take permits under new § concept of ‘‘the public’s welfare with
relative to the risk of not doing it. If the 22.27, expanding the reasons for which ‘‘public health and safety,’’ to provide
adverse impact is small, it may be nests could be taken from safety parameters on what can qualify under
impracticable to undertake enormously emergencies only, to situations where the term. However, we intend that the
costly measures to avoid it, but it if the the take is necessary to protect the concept of ‘‘public health and safety’’
impact will be extremely detrimental, public’s welfare. However, as a number will sometimes, though not necessarily
increased measures may be deemed of commenters observed, the definition always, apply to transportation projects.

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For example, where a highway the degree that these secondary or effects when assessing the scope of the
department proposes to modify a ‘‘indirect effects’’ will foreseeably result impact, and it requires us to consider
highway interchange to reduce a in additional impacts to eagles, we will cumulative effects in determining
disproportionately high incidence of consider those impacts. However, whether the take will be compatible
traffic accidents, if the modifications impacts to air quality and water quality with the preservation of the bald eagle
needed to improve safety cannot may require authorizations from other or the golden eagle.
practicably avoid an eagle nest, the agencies, and the responsibility to Comment: ‘‘Cumulative effects’’
project may qualify for a nest removal authorize or prohibit such impacts is should not be considered because each
permit, depending on whether the generally beyond our authority. permit application will be assessed at
remaining permit issuance criteria can We agree with the commenter that a the time it is processed.
be met. definition of secondary or indirect Service response: This comment
Comment: The rule should define effects may be beneficial. In the appears to misunderstand the essential
‘‘cumulative impacts’’ as ‘‘the proposed rule, we used the term concept of cumulative effects, which no
incremental environmental impact or ‘‘secondary impacts’’ to refer to impacts matter how defined, must include
effect of the proposed action, together that result from an activity after an consideration of more than one effect at
with impacts of past, present, and initial action (e.g. building a road has an a time. The need to assess cumulative
reasonably foreseeable future actions. impact, and the traffic that results is a effects arises from the fact that
Cumulative effects can result from secondary impact). We had considered combinations of effects can create
individually minor but collectively using the term ‘‘indirect effects’’ but felt impacts that would not result from a
significant actions taking place over a it was unsatisfactory because secondary single effect, and which, in the case of
period of time.’’ impacts are often direct. They may eagles, could threaten their
Service response: We largely agree occur somewhat later in time, but they preservation. The assessment of
with this comment and have adopted are the direct result of the first action cumulative effects will also be critical to
the first sentence suggested by the and may directly affect eagles (e.g., protection of local eagle populations,
commenter as the definition of without the road having been built, since it will afford the Service a view of
‘‘cumulative effects’’ within this rule. there would be no vehicular traffic). where a concentration of impacts may
We omitted the second sentence However, the term ‘‘secondary impacts’’ be occurring, a view that otherwise may
because we believe it unnecessarily has its own drawbacks; most notably it not in every case be adequately
narrowed the definition by suggesting could be interpreted to omit any examined during the permit-issuance
that cumulative impacts occur only over impacts that were tertiary or beyond. process.
time, whereas cumulative impacts also For that reason, and because ‘‘indirect Comment: The definition of
can refer to multiple impacts from a effects’’ is used much more commonly, ‘‘cumulative effects’’ overreaches and is
variety of sources occurring we are replacing the term ‘‘secondary not supported by the Eagle Act. The
concurrently with one another. impacts’’ with ‘‘indirect effects.’’ regulations should adopt the approach
Comment: The rule should define When we re-opened the comment the Service is imposing on itself in
‘‘indirect effects’’ as ‘‘effects caused by period on the rule in August 2008, we revisions to ESA interagency
the action and which are later in time proposed to define ‘‘indirect effects’’ as coordination regulations, that is: for the
or farther removed in distance, but are ‘‘effects that are caused by an action and effect to be reasonably certain to occur,
still reasonably foreseeable. Indirect either occur later in time or are the Service must have clear and
effects may include growth-inducing physically manifested beyond the substantial information that the
effects and other effects related to immediate impacts of the action, but are proposed action is an essential cause. It
induced changes in the pattern of land still reasonably foreseeable.’’ We would put both statutes on the same
use, population density or growth rate, modified that proposed definition to definitional footing and eliminate
and related effects on air and water and clarify that the proposed action can be confusion.
other natural systems, including a contributing factor to the effect and Service response: The revisions to
ecosystems. Indirect impacts include does not have to be the sole cause. The ESA interagency coordination
those impacts resulting from final definition of ‘‘indirect effects’’ regulations have been withdrawn.
interrelated actions that are part of a under this rule is: ‘‘effects for which a Regardless, they pertained to a different
larger action and depend on the larger proposed action is a cause, and which statute, the ESA, and are not appropriate
action for their justification and from may occur later in time and/or be under the Eagle Act, which has separate
interdependent actions that have no physically manifested beyond the initial standards and a different mandate. Also,
independent utility apart from the impacts of the action, but are still the commenter appears to be merging
proposed activity.’’ reasonably likely to occur.’’ the (now withdrawn) ESA section 7
Service response: The definition Comment: ‘‘Indirect effects’’ must definitions for ‘‘cumulative effects’’ and
suggested by the commenter is too broad include the requirement of a reasonably ‘‘indirect effects.’’ Under both the
for the context of this regulation. close causal relationship between the retracted and the reinstated ESA
Beyond what is appropriate for us to environmental effect and the alleged regulations, ‘‘cumulative effects’’ are
consider as part of the NEPA analysis cause. limited to effects that are ‘‘reasonably
(where one is required), we do not Service response: We agree with this certain to occur.’’ Preservation of the
intend to base permit decisions on how comment, and will address this issue in bald eagle and the golden eagle may not
growth enabled by a proposed action more depth in the implementation be achieved if the Service must carry the
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would affect air, water, and other guidance for these regulations. burden of proving an effect will occur
natural ecosystems. The permit Comment: The rule should require the before it can be prevented, which would
authorizes eagle take and the issuance Director to consider both cumulative effectively be the case if the only
criteria will include consideration of impacts and indirect effects before cumulative effects we could consider
reasonably foreseeable secondary effects concluding compatibility with were those that are reasonably certain to
on eagles to ensure that authorized take preservation of the eagle. occur. The ESA regulatory definition of
is compatible with the preservation of Service response: The final rule ‘‘cumulative effects’’ is not related to the
the bald eagle or the golden eagle. To requires the Service to consider indirect concept of an ‘‘essential cause,’’ as the

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commenter mistakenly suggests. the ‘‘uncertainty caused by the which they resemble. Golden eagles are
‘‘Essential cause’’ was used under the definition of disturb and the fact that the plentiful and will tolerate a much
withdrawn ESA section 7 regulations to guidelines are not possible to follow in higher level of take than bald eagles.
clarify the definition of ‘‘indirect general.’’ The Service should revise its Therefore the permit-application
effects.’’ For purposes of permitting estimates to reflect the higher demand. process and issuance criteria should be
under the Eagle Act, we define The lower estimate is arbitrary and much less rigorous than for bald eagles.
‘‘cumulative effects’’ as ‘‘the capricious and results in a cost estimate Service response: Rather than
incremental environmental impact or that is too low. The Service should heightening regulatory restrictions, this
effect of the proposed action, together provide documentation, evidence, or regulation provides a mechanism for
with impacts of past, present, and rationale for the time estimates. authorizing impacts that otherwise
reasonably foreseeable future actions.’’ Service response: We want to be clear would be prohibited. The Eagle Act
about the fact that we do not have any prohibits take of both bald eagles and
Other reliable documentation or evidence to golden eagles. Accordingly, this
Comment: ‘‘Absence of data’’ should indicate how many people will seek regulation provides a means to
not be used to deny take authorization permits under this regulation, and we authorize take of golden eagles as well
for infrastructure projects that promote received none from the public during as bald eagles.
public safety and welfare; rather the the public comment period. These are The need to protect juvenile bald
‘‘best available science’’ should be used. new permit programs that will apply to eagles was the third of three reasons
Service response: We certainly believe a newly-delisted species (bald eagles) Congress provided for extending Eagle
that the best available science should be and a species for which no similar Act protection to golden eagles. In a
used. However, the Eagle Act requires authorization was previously available joint resolution amending the Act,
the Secretary of the Interior to (golden eagles). Having said that, we Congress stated ‘‘Whereas the
determine that take will be compatible have increased our estimate to 1,168 population of the golden eagle has
with the preservation of eagles before he permit applications and 910 permits declined at such an alarming rate that it
or she may authorize the take. To permit issued under both regulations. is now threatened with extinction; and
take without sufficient data to show that We do not agree that the number of
Whereas the golden eagle should be
it will not result in a decline in the eagle permits is larger than it otherwise
preserved because of its value to
population would violate the statutory would be because of the ‘‘uncertainty
agriculture in the control of rodents; and
mandate. caused by the definition of disturb.’’ In
Comment: Will any activities be Whereas protection for the golden eagle
the past, disturb was not defined at all,
exempt from the take provisions of the will afford greater protection for the
and the new definition limits the pool
Eagle Act? bald eagle...’’ (Bald and Golden Eagle
of impacts that might otherwise have
Service response: What is prohibited Protection Act Amendments of 1962,
been considered disturbance in the
is ‘‘take,’’ not the activities that result in Pub. L. No. 87-884, 76 Stat. 1246 (1962).
absence of a definition by establishing a
take. In any case, we cannot exempt any relatively high threshold that requires Contrary to the statements made by
take of bald eagles from the permit injury or nest abandonment. We also the commenter that golden eagles are
requirement imposed by the Eagle Act. disagree that the National Bald Eagle plentiful and will tolerate a higher level
Any such exemption would have to be Management Guidelines are not possible of take, our data indicate the opposite.
provided by an amendment to the Act to follow in general. The Guidelines are In contrast to bald eagles, golden eagle
by Congress. more flexible than any guidance that populations do not appear to be
Comment: In addressing the proceeded bald eagle delisting and they increasing, and may be declining in
information-collection requirements of recommend the smallest buffers that some parts of their range, possibly due
the Paperwork Reduction Act, the applied in any part of the country prior to loss of habitat to support their prey
Service has probably underestimated to delisting. In Alaska, parts of which base. Overall, our data for golden eagles
the public reporting burden for have the highest density of bald eagles are not as comprehensive as for bald
completing an application. Forest in the United States, no ESA permits to eagles, and, under the Eagle Act, we
Service staff estimate it will take 3-6 take eagles were ever available because cannot issue take permits for golden
person-days to complete the application the bald eagle was never listed under eagles unless we have enough data to
process. the ESA in Alaska. Since guidelines make the determination that the take to
Service Response: The reporting similar to our National Guidelines (but be authorized will be compatible with
burden we provided was an estimate of less flexible) have proven to be possible the preservation of golden eagles.
the average hourly burden we to follow in Alaska, we believe they can Golden eagles do sometimes prey on
anticipate. For large-scale activities such be workably applied in other parts of newborn livestock, and losses to
as the Forest Service management plans, the U.S. where eagles are present in individual producers can occasionally
the application process will be much lower densities. be significant. However, the economic
longer than the average. Nevertheless, Finally, as provided in these benefit provided by golden eagles (as
we have increased our estimate of the regulations, we will only issue permits recognized by Congress) consuming
average hourly burden from 10 hours to where the take cannot practicably be rabbits, rodents and other prey that
16 hours and added an estimate of 40 avoided, which will help minimize the otherwise would damage crops likely far
hours for a programmatic take permit. number of permits. outweighs any economic losses to the
Some programmatic permits may take Comment: The Service should avoid agricultural industry.
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longer than that to develop; however, heightening regulatory burdens with Finally, golden eagles have enormous
once ‘‘templates’’ have been developed regard to the golden eagle. Golden cultural significance to many
for particular industries or activities, the eagles cause damage to crops and Americans, particularly many Native
process will be more streamlined for livestock and the location of their nests Americans. Even without consideration
subsequent programmatic permits for can restrict agricultural activities on of the other reasons why golden eagles
similar activities. farms and ranches. They are only were protected by Congress, the cultural
Comment: Far more than 300 permits protected under the Eagle Act in order and spiritual value accorded to golden
per year will be needed, partially due to to better protect juvenile bald eagles, eagles justifies the level of protection

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they share with bald eagles under the Service response: In addition to individuals and individual corporations
Eagle Act. amending the eagle-depredation-permit within the public at large. Our agency
Comment: The economic analysis regulations under § 22.23 to extend is directed by Congress and OMB to
should not be limited to a pre- versus potential permit tenure to up to five recoup the costs of permit programs
post-delisting assessment. Rather, the years, we included the following where feasible. The lower the permit
Service should consider the costs of the language: ‘‘We may amend, suspend, or processing fees, the larger are the
regulatory program in comparison to revoke permits issued for a period of percentage of costs that must be shifted
other recovered species. longer than 90 days if new information to taxpayers or diverted from other
Service response: Comparing the costs indicates that revised conditions, Service responsibilities. Therefore, we
of this permit program to the costs of suspension, or revocation is necessary do not believe the $500 permit
making a similar permit available for to safeguard local or regional eagle processing fee is unreasonable for
other recovered species would yield populations.’’ applications for individual permits.
little or no useful information because Comment: Penalties for violations While we are not adopting the
we have never before created a new should be dramatically increased and commenter’s suggestion that application
permit regulation to authorize take of a the compensation used to develop and fees be less for ‘‘low-effect’’ permits, we
recently-delisted species. Even had we implement management plans. are establishing a higher fee for permits
done so, we doubt the comparison Service response: The Service does that will take longer to process; the
would be very useful because, unlike not establish and cannot effect changes application-processing-fee for
any other species, bald eagles and to penalties for violations of the Eagle programmatic permits is $1,000. While
golden eagles are protected by the Eagle Act and other statutes we enforce. the typical programmatic permit will
Act, and it is the unique protections of Congress establishes the penalties. likely cost the Service more than twice
that statute that fundamentally shape Comment: Due to the unique as much as the typical individual-take
this regulation. circumstances of Alaska, the Service permit, we believe the $1,000
Comment: The Service, by stating that should develop streamlined procedures application fee, rather than a higher fee
it only rarely expects to issue permits for ensuring that infrastructure projects more in line with our processing costs,
for take associated with activities that can comply with the Eagle Act. is justified because programmatic
Service response: We intend to permittees will be required to undertake
conform to the guidelines, appears to
establish working groups with rigorous and potentially costly
have foreclosed the option to seek and
interested States and tribes to develop conservation measures.
gain assurance against prosecution
streamlined procedures to boost the Regarding the suggestion that fees be
under the Eagle Act through issuance of
efficacy of this permit program and lower than $500 for private landowners
a permit.
enhance compliance with the Eagle Act. and small businesses, if we did that, we
Service response: While we will
would recoup an unacceptably small
continue to discourage applications for Fees
percentage of the costs of the permit
take we believe is unlikely to occur, Comment: The permit-processing fees program. Federal, State, tribal and local
preferring to put our agency’s limited must be higher to comply with the government agencies will likely
resources towards our mission of Service’s mandate that permit programs constitute a large portion of applicants,
conserving wildlife, we anticipate be ‘‘self-sustaining to the extent but they are exempt from permit
issuing some of these permits. The possible’’ as required by 31 U.S.C. application fees. It is inappropriate to
monitoring and reporting that will be 9701(a). The program will drain money require the American taxpayer to bear
required of permittees will be of value, that should be used for important all the costs of administering permits
since it will provide documentation we conservation needs. that primarily benefit private
rarely would otherwise obtain: whether Service response: The commenter is individuals. We believe that the fees
the activities we thought would not correct that the permit application associated with this rulemaking are a
disturb eagles do result in take. processing fees associated with the new fair compromise between recouping all
Normally, permittee monitoring will be permits are not high enough to allow the of our costs and ensuring that no one is
for activities that are likely to take Service to recoup even half the cost of disqualified because he or she cannot
eagles. In addition, the Service may issuing them. However, the fees are afford the permit application-processing
exercise enforcement discretion by not significantly higher than other permit fee.
referring such take for prosecution application processing fees we assess. Comment: The Service should not
under the MBTA or the Eagle Act if it The fees associated with these charge fees for tribal religious purposes.
occurs despite the low probability. regulations must be manageable to small Service response: We do not charge
Comment: Sensitive nest data business owners, home owners, and permit application processing fees for
maintained by States will be made other members of the public who may permits for tribal religious purposes.
public through the Freedom of find a higher fee prohibitive. We are This regulation has no effect on our
Information Act (FOIA) process, establishing a higher application fee for policy regarding such fees.
jeopardizing the safety of the nest. programmatic permits: $1,000, with a
Service response: Although we do not $500 amendment processing fee. Permits for Take of Eagle Nests
share this State commenter’s concern Comment: The proposed fees are too Comment: The final rule should
that eagle nests will be less protected if high, especially when encouraging clarify that a safety emergency means a
their location is known, we respect the landowners in conservation efforts. The threat to life, not a threat to property.
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State’s intentions, and to the degree we Service should consider a designation of Service response: The regulation
can under law, we will honor its wishes ‘‘low-effect’’ permits for which a lower includes the following definition of
to safeguard State nest data. However, permit-application-processing fee would ‘‘safety emergency’’: ‘‘a situation that
we cannot circumvent the requirements be charged. Also, the Service should necessitates immediate action to
of the FOIA. consider a lower fee for private alleviate a threat of bodily harm to
Comment: The tenure of depredation landowners and small businesses. humans or eagles.’’ However, the rule
permits for hazing eagles should not be Service response: Permits are a now provides that permits may be
increased because it could lead to abuse. ‘‘service’’ provided to specific issued to remove inactive nests where

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necessary to ensure public health and active nests can be removed if necessary most regions. On the other hand, as
safety, which includes situations to prevent imminent death or physical airports develop comprehensive
beyond immediate safety emergencies. injury to people or eagles. We have measures to reduce the need for take
Comment: Nest removal permits added provisions to the rule for permits, we will issue them
should be available to avert severe programmatic authorizations to remove programmatic authorizations, lowering
financial impacts. nests for situations where the need for the total number of authorizations
Service response: The plain language nest removal will be ongoing (e.g., at required.
and legislative history of the Eagle Act some airports or for utilities that Comment: The one-year tenure is not
prevent us from making permits maintain power lines). Programmatic long enough to address the hazing
available to remove eagle nests to nest-removal permits would be available needed to prevent re-nesting at airports.
reduce financial impacts. Congress only when the applicant has developed Service response: Hazing requires a
amended the Act in 1978 to provide the comprehensive measures to reduce take permit only if it is likely to result in
Secretary of the Interior the ability to to the degree practicable. disturbance as defined in regulation.
authorize take of golden eagle nests that In response to the commenter’s Permits to haze eagles under those
‘‘interfere with resource development or specific suggestions, we consider (1) circumstances will not be authorized
recovery operations.’’ Congress redundant with (2) because any time under either of the new permit
specifically did not include bald eagle there is a clear threat to eagle or human categories, since § 22.26 applies only to
nests in this narrowly-focused safety, correcting the situation will be in take that is associated with, but not the
amendment, nor did it provide us with the public interest. The proposed rule purpose of the activity, whereas hazing
the ability to authorize golden eagle nest already incorporated the substance of is intentional; and § 22.27 authorizes
take for purposes as broad as financial (2). We have added the language nest take. Permits to haze eagles are
impacts, even severe ones. Therefore, suggested under (3) to the evaluation already issued under existing
we interpret our authority to issue criteria of the rule at § 22.27(d). regulations at § 22.23. However, those
permits to take golden eagle nests as Comment: Nest-removal permits for regulations until now did not allow us
limited to purposes no broader than the airports should be guaranteed. Denial of to issue permits for a period longer than
1978 amendment, and for bald eagle such an application should not be an 90 days. This rulemaking amends
nests, even narrower. Take that is option.
§ 22.23 to allow an extended tenure of
necessary to benefit eagles and protect Service response: A permit is never
up to five years for hazing, only.
public health and safety is conservative ‘‘guaranteed.’’ The statutory mandate
that the take be compatible with the Comment: What if action is needed
and falls within the narrow range of
preservation of the bald eagle or the before a nest-removal permit can be
purposes for which we may issue eagle
golden eagle must be met. Also, the issued? The proposed rule preamble
nest take permits for both species.
Comment: Relocation of nests is not permit will not be issued if there is an states that it may take 40 hours to
always realistic. The final rule should alternative to nest removal that would process such a permit. The time needs
not depend on that approach. alleviate the threat to human and/or to be shorter and needs to be codified
Service response: The regulation does eagle safety or public welfare. in the rule, or else a statement is needed
not require that nests be relocated. It Comment: Airports are a good that if the Service does not respond
provides that ‘‘[w]here practicable, the example of how safety issues are quickly enough, the take is authorized.
nest should be relocated, or a substitute invoked when they do not actually Service response: The rule estimates
nest provided, in a suitable site within exist. Airports have done a poor job of that it will take a total of 40 Service staff
the same territory to provide a viable assessing risks before resorting to lethal hours to process the nest-take permit,
nesting option for eagles within that take and habitat destruction. not 40 consecutive hours. More than
territory, unless such relocation would Service response: Although airports one Service employee will need to
create a similar threat to safety.’’ The are already subject to FAA regulations participate in the process. We cannot
rule also specifically provides that that require them to assess and mitigate authorize bald eagle take without
permits may be issued under the for wildlife hazards (14 CFR 139.337(b) issuing a permit. If a bona fide
regulation when nests cannot be and (c)), this permit should improve the emergency response action must be
relocated. alternatives analysis that airports taken before the permit can be issued,
Comment: The rule should undertake because the programmatic the Service may exercise enforcement
specifically state that the applicant must nest-take permit will require permittees discretion by not referring such take for
take all reasonable steps to minimize to undertake comprehensive measures prosecution under the MBTA or the
impacts to eagles before a nest is to reduce take. Eagle Act.
removed to ensure that all alternatives Comment: Emergency nest take will Comment: An on-site inspection by
have been exhausted. Such alternatives need to be authorized more than five the Service should be required before
would include take of nests outside of times a year, largely due to airport safety issuing a nest-take permit, for oversight.
the breeding season. The applicant must concerns. Service response: We will not always
be required to demonstrate that (1) the Service response: We based our be able to conduct an on-site inspection
removal is in the public interest; (2) estimate on the number of emergency before issuing the permit. If the
there is a clear threat to eagle or human situations that arose in the past few situation is an emergency, there may not
safety; and (3) there is no alternative to years. However, we have revised our be sufficient time for us to travel to the
removal that would alleviate the estimate for the number of nest take area. Second, some areas (e.g., parts of
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emergency. permits we anticipate issuing from five Alaska) may be remote, making travel
Service response: Nests that need to permits a year to 48 permits per year. expensive and time-consuming. Finally,
be removed because they pose a safety The higher estimate is based on the due to limited staff resources, we will
hazard should be removed outside the somewhat broader parameters not necessarily have personnel available
breeding season. However, removing established in the final rule for when to conduct a site visit.
nests outside of nesting season is not nest take may be authorized, as well as Comment: The rule should require the
always possible. Thus, the rule provides our expectation that bald eagle permittee to pay for any care needed for
that, in a genuine safety emergency, populations will continue to grow in eggs or nestlings.

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Service response: Active nests may Comment: A programmatic permit is Comment: The rule should explicitly
only be taken in cases of bona fide needed for operations that need to state that when evaluating whether
safety emergencies. Therefore, care of remove nests regularly. For example, suitable habitat is available, constructed
viable eggs or nestlings will only be locations of all eagle nests on nest platforms are not considered
necessary in some emergency situations. transmission and distribution facilities available suitable habitat. Otherwise,
Because emergencies are intrinsically may not be known, complicating the entire local populations could be
unplanned, we do not consider it permit process. displaced to nest platforms if a highway
justified to ask the permittee to pay for Service response: We agree with this was to go through nesting habitat.
rehabilitative care that may be comment and added provisions to the Service response: Suitable habitat
necessitated by circumstances outside final regulation for programmatic nest might include constructed nest
the permittee’s control. removal ‘‘provided the permittee platforms if they are located in areas
Comment: The rule should require complies with comprehensive measures with adequate foraging and perching
mitigation payments for nest removal. that are developed in coordination with sites, and other features necessary for
Otherwise, it creates a financial the Service, designed to reduce take to them to be viable breeding sites.
incentive to remove nests. the maximum degree practicable.’’
Comment: Will the new nest-take Comment: We strongly suggest
Service response: Nest removal including a narrower and more detailed
permits will be available only where: (1) permit affect permits issued under 50
CFR 22.25 for take of golden eagle nests definition of ‘‘public’s welfare,’’ and a
necessary to alleviate a safety prioritization scheme where the highest
emergency; (2) necessary to ensure for resource-development-and-recovery
operations? priority for nest removal permits is
public health and safety; (3) the nest is given to ‘‘projects that are determined to
Service response: The new permit for
built on, and obstructs the use of, a promote the greatest common societal
nest removal is unlikely to affect
human-engineered structure; or (4) the and environmental good.’’
issuance of permits under § 22.25.
project, or mitigation for project, will Service response: We replaced the
Although, it includes permit issuance
provide a long-term benefit to eagles. term ‘‘the public’s welfare’’ with the
criteria that prioritize take for certain
Under the first scenario, financial narrower concept of ‘‘public health and
purposes over others, the interests that
incentives are not germane. Under the are prioritized above resource- safety.’’ For more discussion of this
second and third scenarios, some development-and-recovery operations issue, see our response to a comment
mitigation may be required, depending are compelling government interests: under Scope and Criteria of 22.2.
on the particular situation, including public health and safety, and upholding
the availability of other nests in the Comment: The definition of ‘‘the
our trust responsibilities towards Native public’s welfare’’ may be interpreted too
territory, whether the applicant could American tribes by ensuring that eagles
have taken reasonable steps to prevent narrowly for purposes of nest removal.
continue to be available for religious The final rule should explicitly provide
eagles from nesting on the structure, and ceremonies. Based on past history, we
other factors. Under (4), the permittee that infrastructure projects ‘‘to maintain
anticipate only a few requests to remove or expand domestic energy production
would be required to provide golden eagle nests for health and safety.
compensatory mitigation designed to and delivery fall within the scope of
Although regulations have existed for projects necessary for public welfare.’’
provide a net benefit to eagles, that is, decades that would enable us to issue
to more than compensate for the Service response: Under this final
permits to tribes to take eagle nests for rule, permits to remove eagle nests will
biological impacts of the nest removal. religious purposes, we have had only
If, despite the cost of compensatory be available only for safety emergencies,
one such request to date. As such, we
mitigation, the permittee profits from public health and safety, nests located
think the new nest take authorization
removing the nest, the profit should not on human-engineered structures where
under § 22.27 will not affect how we
be an issue, since the overall effect on the nest interferes with the intended use
administer permits under § 22.25.
eagles will be beneficial. Comment: The provision to allow take of the structure, or for projects that
Comment: The rule should clarify that of golden eagle nests during resource- provide a net benefit to eagles. Thus, we
lethal take of eagles is not an option recovery operations based on 10 days of can issue a permit to remove a nest
under this permit. nest inactivity is at odds with long-term where necessary to protect any interest,
Service response: We added the occupancy of nests demonstrated by the including where necessary ‘‘to maintain
following language to the final species, and needs to be better or expand domestic energy production,’’
regulation: ‘‘This permit does not evaluated. as long as the project proponent will
authorize intentional, lethal take of Service response: The provision the implement conservation measures that
eagles.’’ commenter objects to is codified in provide an overall benefit to eagles
Comment: The rule should provide existing regulations that predate this greater than the adverse effect of nest
that the permit ‘‘will’’ (rather than rulemaking. Nevertheless, we did re- removal (and the other permit issuance
‘‘may’’) authorize take of eagles, eggs, or examine the language during this criteria are met).
nestlings associated with the removed rulemaking process, which extended the Comment: A permit to take a nest for
nest to protect the permittee from definition of ‘‘inactive nest’’ to apply to ‘‘the public’s welfare’’ should be
liability due to incidental take. bald eagle nests in addition to golden available whether the nest is active or
Service response: The permit may or eagle nests. As we explain in our inactive.
may not authorize take of eagles discussion above regarding the new Service response: The Eagle Act
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associated with nest removal, and where definition of ‘‘inactive nest,’’ the requires the take to be necessary to
take is authorized, the method of take distinction between active and inactive protect an interest. Taking an active nest
will be specified (e.g., collection and nests is for the purpose of evaluating should only be necessary in a safety
disposition of live nestlings, disturbance whether or not a nest may be taken with emergency; otherwise the take can be
of adults, etc). For inactive nest take, reduced risk of associated take of birds. delayed until the nest is inactive so
authorization to take eagles in addition The nest is protected under the Eagle there is less risk of a loss of productivity
to the nest would usually not be Act whether active or inactive and may and no risk of associated take of eggs or
necessary or appropriate. not be taken without a permit. young.

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Comment: Take of nests should not be Service response: We thought this resources. The Service should delay
allowed for anything other than a safety idea had merit and added language to completion of the regulations and form
emergency. the final rule that provides for removal a work group with the State fish and
Service response: Limiting nest take to of nests that are built on human- wildlife agencies to develop more
safety emergencies has the potential to engineered structures, creating ‘‘a administratively- and economically-
create unacceptable gridlock across the functional hazard that renders the feasible regulations.
United States. Many projects and structure inoperable for its intended Service response: We did not delay
activities that benefit society would be use.’’ completion of the regulations because
disqualified, resulting in untenable there is a genuine, substantial, and
Rulemaking Process impending public need for these
degradation of social services and
infrastructure. Comment: Tribal consultation should permits. Without them, many activities,
Comment: The Service should not have been sought prior to proposing this including critical infrastructure projects,
issue nest-take permits where the nest is regulation. How can the government that might disturb or otherwise take
the only structure in a territory or if its claim to have considered cultural values eagles have no means of gaining
removal would interfere with future without proper government-to- authorization for the take, and are either
reproduction in that territory. government consultation with the on hold or compelled to violate the law.
Service response: Where the take is tribes? Due to the need to promulgate the
Service response: We sent each regulations without further delay, we
not necessary to alleviate a safety
federally-recognized tribe a letter were unable to coordinate closely with
emergency, we will consider whether
soliciting input on this action when the States and tribes during the rule-
the nest is the only one in the territory.
proposed rule was published in the development phase. However, we plan
Unless a safety emergency necessitates
Federal Register. Even though the to establish work groups with State and
the nest removal, before issuing a permit comment period was open for 90 days,
under § 22.27, we must find that tribal representation to assist with
we received only three letters from development of implementation
‘‘suitable nesting and foraging habitat is tribes and no requests to extend the
available to the area nesting population guidance for the regulations. The
comment period. The Service sent a implementation guidance will address
of eagles to accommodate any eagles second letter to the tribes when the DEA
displaced by the nest removal.’’ numerous important facets regarding
was released, and several Service administration of the permit program
Comment: The Service should not Regional offices have hosted or attended that have yet to be worked out,
issue a programmatic nest permit to the meetings in order to clarify the Service’s including how the Service will
Federal Aviation Administration for actions and hear tribal concerns. coordinate with States and tribes during
nationwide airport coverage because, However, due to the need to promulgate the permit-application-and-processing
with no biologists, it will err on the side permit regulations in an expeditious phase.
of human safety and remove nests that manner, there was not enough time to Comment: The Service should delay
pose little threat. fully engage any tribes in formal implementation until it gets an adequate
Service response: We do not government-to-government consultation monitoring program in place for both
anticipate issuing a single, nationally- during the rule-making period. We do species throughout the U.S. If the
applicable permit to the FAA. At this intend to do so with interested tribes Service will not delay completion or
point, we envision issuing permits to during the next phase: development of implementation of the regulations, they
individual airports and county or implementation guidance. should be enacted on a short-term basis,
regional airport authorities. As part of developing the allowing the Service to work
Comment: The Service’s estimate of implementation guidance, we intend to cooperatively with the States to develop
only 30 programmatic nest take permits work with tribes to establish protocols a more comprehensive, data-driven
per year is too low. That many would regarding the types of permit permitting system.
probably be needed in Alaska alone. applications and potential actions on Service response: If, after
Service response: We have increased which individual tribes would like the implementation, the regulations need
our estimate of how many programmatic Service to consult with them. We will revision, we can amend them. There is
permits we will issue – but only by 10, also consider cultural values, including no need to finalize them with a built-in
to 40 permits, annually. Programmatic Native American cultural values as part expiration clause. We agree that more
permits will be issued only where ACPs of the NHPA’s section 106 review. (See data, monitoring, and surveys would be
are implemented to reduce take to a our discussion in the Required useful, and we plan to pursue
level that is unavoidable. The process of Determinations section below under possibilities for additional funding and
developing most programmatic permits National Historic Preservation Act.) partnerships to bolster the scientific
will be more time-consuming than for Comment: The comment period was data currently available for both eagle
most individual permits, at least until too short for the public to provide species.
we have developed ‘‘templates’’ meaningful input. Comment: The Service should publish
applicable to other permits for the same Service response: The initial comment the proposed rule with the changes
or similar activities. Thus, we think it period for the rule was 90 days, which noted in the DEA. Without being able to
unlikely we will be issuing more than is standard for a significant rule. We review the explicit regulatory changes
40 such permits per year nationwide. also re-opened the comment period on in context, the public cannot adequately
The permits we are creating through this the rule for another 30 days when we evaluate the proposal.
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rulemaking are for take that is released the DEA in August 2008. Service response: We believe the
necessary, not take that is merely Therefore, the total length of time the August 2008 Notice of Availability for
convenient or more profitable than rule was open for public comment (120 the DEA and the DEA itself effectively
avoiding the take. days) was longer than for most rules. described the changes that we were
Comment: The rule should include a Comment: States should have been proposing from the rule we proposed in
separate nest-take category for situations given a greater role in developing the June 2007. Republishing a proposed rule
where eagles nest on a pre-existing man- regulation, particularly since it will incorporating the changes noted in the
made structure. require investment of significant State DEA would have triggered a number of

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regulatory requirements that would publishes a notice of rulemaking for any with the permit. For example,
have been onerous and—more proposed or final rule, it must prepare applicants will have to pay $500 for
important—time consuming. Due to the and make available for public comment processing a permit application under §
need to finalize the regulations a regulatory flexibility analysis that 22.26 and § 22.27, and $150 for permit
expeditiously, we believe that the describes the effect of the rule on small amendments. In addition, particularly
approach we took was in the best entities (i.e., small businesses, small for larger projects, there may be
interests of the public. organizations, and small government consultant and/or attorney’s fees
jurisdictions) (5 U.S.C. 601 et seq.). ranging from a few hundred to
Endangered Species Act Consideration However, no regulatory flexibility thousands of dollars. However, if the
Consultation pursuant to section analysis is required if the head of an permit applicant is successful, the
7(a)(2) of the Endangered Species Act is agency certifies that the rule would not economic benefits to the small entity
not required for these regulations. The have a significant economic impact on should outweigh the economic costs of
regulations do not directly or indirectly a substantial number of small entities. obtaining the permit. For some
authorize any activities that would Thus, for a regulatory flexibility analysis individual businesses, the benefit may
result in adverse effects to listed to be required, impacts must exceed a be substantial.
species, so they will not affect any listed threshold for ‘‘significant economic The Department of the Interior
species or critical habitat. We will impact’’ and a threshold for a certifies that this rule will not have a
conduct section 7 consultations on the ‘‘substantial number of small entities.’’ significant economic effect on a
issuance of any future permits where See 5 U.S.C. 605(b). SBREFA amended substantial number of small entities
the authorized activities may affect the Regulatory Flexibility Act to require under the Regulatory Flexibility Act (5
listed species or critical habitat. Federal agencies to provide a statement U.S.C. 601 et seq.).
of the factual basis for certifying that a Small Business Regulatory
Required Determinations Enforcement Fairness Act (SBREFA).
rule would not have a significant
Energy Supply, Distribution or Use economic impact on a substantial This rule is not a major rule under 5
(E.O. 13211). On May 18, 2001, the number of small entities. U.S.C. 804(2), the Small Business
President issued Executive Order 13211 This rule may benefit a variety of Regulatory Enforcement Fairness Act.
addressing regulations that affect energy small businesses including real estate This rule:
supply, distribution, and use. E.O. developers and brokers (NAIC 531); a. Will not have an annual effect on
13211 requires agencies to prepare construction companies (NAIC 23); the economy of $100 million or more.
Statements of Energy Effects when forestry and logging (NAIC 113), farming The principal economic effect of the
undertaking certain actions. This rule is (NAIC 111), and ranching operations rule will be to allow the general public,
not expected to significantly affect (NAIC 112); tourism companies (NAIC small businesses, industry and
energy supplies, distribution, and use, 713); utility companies (NAIC 221); and government agencies to obtain take
except that it provides means to others. Across the United States, there permits that allow activities on their
authorize otherwise-prohibited impacts are 255,871 small real estate companies; property where avoiding impacts to
to eagles that may be necessary in the 617,737 small construction companies; eagles is not practicable. We are
course of supplying and distributing 9,596 small forestry and logging anticipating that, due to increasing bald
some energy in particular localities. companies; 46,730 small tourism eagle populations, there will be an
This action is not a significant energy companies; and 10,173 small utility increase in the number of applications
action, and no Statement of Energy companies. We anticipate receiving for permits under this rule compared to
Effects is required. about 1,140 §22.26 take permit the number of people who sought
Regulatory Planning and Review applications nationwide annually, and authorization to take eagles under the
(Executive Order 12866). The Office of about 90 § 22.27 nest take applications ESA, even though not all activities that
Management and Budget (OMB) has (including 20 applications for require ESA authorization would
determined that this rule is significant programmatic permits under each of the require Eagle Act authorization. All
and has reviewed this rule under two regulations). types of small entities that benefited
Executive Order 12866 (E.O. 12866). We anticipate issuing approximately from the issuance of permits under the
OMB bases its determination upon the 830 standard § 22.26 take authorizations ESA will continue to benefit from
following four criteria: across the United States, 40 standard permits issued under this rule.
(a) Whether the rule will have an nest-take permits, and 40 programmatic b. Will not cause a major increase in
annual effect of $100 million or more on permits, per year. Based on past permit costs or prices for consumers,
the economy or adversely affect an authorizations under the ESA, we individual industries, Federal, State, or
economic sector, productivity, jobs, the anticipate approximately one-third of local government agencies, or
environment, or other units of the new permit applicants would be small geographic regions. Eagle take permits
government. businesses. If 303 permittees are small will not significantly affect costs or
(b) Whether the rule will create businesses within 4–6 different prices in any sector of the economy.
inconsistencies with other Federal industries across the United States, the This rule will provide a remedy that
agencies’ actions. demand would not represent a would allow various members of the
(c) Whether the rule will materially substantial number of small entities in general public to pursue otherwise
affect entitlements, grants, user fees, individual industries. The economic lawful uses of their property where the
loan programs, or the rights and impact to individual small businesses is activity will impact eagles. For example,
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obligations of their recipients. dependent on the type of activity in a person wishing to build on his
(d) Whether the rule raises novel legal which each business engages. As noted property in the vicinity of a bald eagle
or policy issues. in the economic analysis in the nest may apply under this proposed rule
Regulatory Flexibility Act. Under the preamble above, permit applicants will for a permit to disturb eagles, whereas
Regulatory Flexibility Act (as amended incur some costs assembling the the option would not be possible after
by the Small Business Regulatory necessary information for the permit delisting without the promulgation of
Enforcement Fairness Act (SBREFA) of application, permit fees, and the costs of these regulations. Another example
1996), whenever a Federal agency monitoring and reporting associated would be a utility that wishes to

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minimize eagle mortalities and liability governing the take of eagles should not from five tribes, three tribal members,
to itself and so implements conservation result in significant economic impacts and three coalitions or confederations of
measures to reduce take to the level because this rule would allow for the tribes. The majority of these tribes either
where any remaining take is continuation of a current activity (take asked the Service to extend the
unavoidable and unauthorized. Whereas of eagles) albeit under a different statute comment period on the DEA and re-
take of eagles is already prohibited by (shifting from the ESA to the Eagle Act). open rule, or asked the Service to delay
the Eagle Act, the permit represents an The new regulatory process provides finalizing the rulemaking until tribes
opportunity for the public to comply States the opportunity to cooperate in were given the opportunity to consult
with the law, but it is not mandatory. management of bald eagle permits and with the Service on a government-to-
These regulations make a permit eases the process for permit government basis. We denied those
available to authorize take that is applications. A Federalism Assessment requests because of the myriad of other
currently prohibited under statute, is not required. interests that would go unmet if we did
enabling small businesses, industries, Civil Justice Reform (E.O. 12988). In not complete and begin implementing
government agencies, corporations, and accordance with Executive Order 12988, the rule in an expeditious manner.
private individuals to conduct the Office of the Solicitor has However, as noted above, we will
legitimate activities in accordance with determined that this rule does not engage interested tribes in consultation
the law. unduly burden the judicial system and as we develop the implementation
c. Does not have a significant adverse meets the requirements of sections 3(a) guidance for these regulations.
effect on competition, employment, and 3(b)(2) of the Order. National Historic Preservation Act.
investment, productivity, innovation, or Government-to-Government Section 106 of the National Historic
the ability of U.S.-based enterprises to Relationship with Tribes. In accordance Preservation Act of 1966, as amended
compete with foreign-based enterprises. with Executive Order 13175, (NHPA) (16 U.S.C 470 et seq.) requires
This regulation establishes a mechanism Consultation and Coordination with Federal agencies to take into account the
to permit effects from activities within Tribal Governments (65 FR 67249, Nov. effects of their undertakings on historic
the United States that would otherwise 9, 2000); the President’s memorandum properties. Federal agencies accomplish
be prohibited by law. Therefore, the of April 29, 1994, ‘‘Government-to- this by following the Section 106
effect on competition between U.S. and Government Relations with Native regulations, ‘‘Protection of Historic
foreign-based enterprises will be to American Tribal Governments’’ (59 FR Properties’’ (36 CFR part 800). The
benefit U.S. enterprises. There is no 22951); and 512 DM 2, we have Section 106 regulations set forth a
anticipated negative economic effect to evaluated potential effects on Federally- process by which agencies: (1) evaluate
small businesses resulting from this recognized Indian tribes and have the effects of any Federal undertaking
rule. determined that there may be potential on historic properties (properties
Unfunded Mandates Reform Act. A effects. Although this rule neither included in, or eligible for inclusion in,
statement containing the information interferes with tribes’ ability to manage the National Register of Historic Places
required by the Unfunded Mandates themselves or their funds nor affects the (National Register)); (2) consult with
Reform Act (2 U.S.C. 1531 et seq.) is not operations of the eagle-distribution State Historic Preservation Officers,
required. system of the National Eagle Repository, Tribal Historic Preservation Officers,
a. This rule is not a significant it does implement a new eagle-take and other appropriate consulting parties
regulatory action under the Unfunded permit policy, and some tribes have regarding the identification and
Mandates Reform Act. A Small asserted that take of eagles has evaluation of historic properties,
Government Agency Plan is not significant cultural and spiritual effects assessment of effects on historic
required. The permit regulations that are on them. properties, and the resolution of adverse
established through this rulemaking will To meet our trust responsibility to effects; and (3) consult with appropriate
not require actions on the part of small tribes with regard to the unique American Indian tribes and Native
governments. traditional religious and cultural Hawaiian organizations to determine
b. This rule is not a significant significance of eagles to Native whether they have concerns about
regulatory action under the Unfunded American communities, we intend to historic properties of religious and
Mandates Reform Act. This rule does minimize impacts by consulting with cultural significance in areas of these
not impose an unfunded mandate on interested tribes prior to Federal undertakings.
State, local, or tribal governments or the implementation of this rule, and on a Some tribes and tribal members may
private sector of more than $100 million case-by-case basis when issuance of consider eagle nests and other areas
per year. individual permits may affect particular where eagles are present to be sacred
Takings (E.O. 12630). In accordance tribes. In addition, this rule provides sites provided for in the American
with Executive Order 12630, the rule that take of eagles for Native American Indian Religious Freedom Act of 1978
does not have significant takings religious purposes be given priority over (42 U.S.C. 1996) (see below). Such sites
implications. This rule could affect take for any other purpose except safety may also be considered properties of
private property by providing owners emergencies, which should help ensure traditional religious and cultural
the opportunity to apply for a permit to that Native American religious needs importance to an Indian tribe
authorize take that would otherwise are not affected by this rule. (commonly referred to as Traditional
violate the Eagle Act. A takings When we initially proposed this rule Cultural Properties or TCPs), and as
implication assessment is not required. in June 2007, we contacted each potential historic properties of religious
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Federalism (E.O. 13132). In recognized tribe with a letter describing and cultural importance under the
accordance with Executive Order 13132, this action and soliciting input from the NHPA. Such sites are not limited to
the rule does not have sufficient tribe. We received only three comments currently recognized Indian lands, and
federalism implications to warrant the from tribes on the proposal. We sent a they occur across the entire aboriginal
preparation of a Federalism Assessment. second letter to the tribes when we settlement area. TCPs may be areas
This rule will not interfere with the released the DEA and re-opened the where eagles nest and have nested
States ability to manage themselves or comment period on the proposed rule. within living memory. Thus, a landform
their funds. Changes in the regulations In response to our draft EA, we heard or landscape known for eagle

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habitation—a ridgeline, canyon, avoid, minimize, or mitigate adverse this regulation. To address the
lakeshore, river valley, mesa, mountain, effects to historic properties. Nothing in possibility that demand exceeds our
etc.—may be considered by tribes as these regulations limits the Service from scientifically-based take thresholds, the
suitable for TCP designation. including additional conditions on regulation contains permit-issuance
According to the Section 106 individual permits for this purpose. criteria to ensure that requests by Native
regulations, a property is considered an If it is determined to be more efficient Americans to take eagles from the wild,
historic property if it is listed on, or for all parties, the Service may consult where the take is necessary to meet the
eligible for (emphasis added) listing on, with appropriate stakeholders to religious purposes of the tribe, are given
the National Register. Therefore, a lack develop State or regional agreements first priority over all other take except,
of formal listing does not lessen the that would govern and resolve as necessary, to alleviate safety
need to consider a property; instead, it compliance with the NHPA for the emergencies.
emphasizes the need for close issuance of permits in specific States or Paperwork Reduction Act. This rule
coordination with appropriate parties at regions. contains new information collection
the project planning stage. American Indian Religious Freedom requirements that require approval by
Because an eagle or eagle nest can be Act. The American Indian Religious the Office of Management and Budget.
considered a contributing feature or Freedom Act (AIRFA) (42 U.S.C. 1996) The OMB has approved these revisions
element of a TCP or sacred site, issuance sets forth Federal policy to protect and under OMB Control Number 1018-0136,
of the proposed permits for eagles could preserve the inherent right of American which expires on August 31, 2012. We
constitute an undertaking requiring Indians to express and exercise their have addressed all comments received
compliance with Section 106 of the traditional religions, including but not on the proposed rule above in this
NHPA, and may also require limited to, access to sites, use and preamble.
government-to-government consultation possession of sacred objects, and the
Title: Eagle Take Permits, 50 CFR
with tribes. The Service would comply freedom to worship through
22.26 and 22.27.
with Section 106 on a case-by-case basis ceremonials and traditional rites. Given
for permits that have the potential to the special trust relationship between Service Form Number(s): 3-200-71, 3-
have effects on historic properties. the Federal Government and federally- 200-72, 3-202-15, and 3-202-16.
Where issuance of a permit has the recognized Indian tribes, the Affected Public: Individuals/
potential to affect a TCP, the Service accommodation of tribal religious households, businesses, and State, local,
Regional Migratory Bird Permit Office practices is in furtherance of the duty of and tribal governments.
will coordinate with the Service the Federal Government to promote Respondent’s Obligation: Required to
Regional Historic Preservation Officer to tribal self-determination. AIRFA would obtain or retain a benefit.
ensure necessary NHPA consultations be construed in conjunction with the Frequency of Collection: On occasion.
take place with the appropriate parties. Service’s trust responsibility to Total Annual Nonhour Cost Burden:
We may deny permits or attach federally-recognized tribes. The Service $261,250 associated with application or
additional conditions if necessary to has incorporated these principles into processing fees.

(non-Federal) RESPONSE HRS

FWS Form 3-200-71 – permit application (individual take) 746 746 16 hrs 11,936

FWS Form 3-202-15 – annual report & monitoring under §22.26 1,119 1,119 30 hrs 33,570

FWS Form 3-200-72 – permit application 46 46 16 hrs 736

FWS Form 3-202-16 monitoring & reporting for §22.27 permit 40 40 16 hrs 640

FWS Forms 3-200-71 and 72 – permit application (programmatic 26 26 40 hrs 1,040


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 All Service permit applications are in We will use two additional forms as
collect on permit applications to the 3-200 series of forms, each tailored (1) the application for a § 22.26 take
determine the eligibility of applicants to a specific activity based on the permit (FWS Form 3-200-71), and (2)
for permits requested in accordance information requirements for specific the application for take of eagle nests
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with the Eagle Act. Eagle permit types of permits. The application forms under § 22.27 (FWS Form 3-200-72). We
regulations (50 CFR 22) and general for other permits authorized under the will use new FWS Form 3-202-15 as the
permit regulations (50 CFR 13) stipulate Eagle Act are covered by OMB Control annual report form for the § 22.26 eagle
general and specific requirements that Number 1018-0022. After publication of take permit, and new FWS Form 3-202-
when met allow us to issue permits to this final rule, we will immediately 16 as the report form for the § 22.27 nest
authorize activities that are otherwise incorporate the new information take permit. The information collected
prohibited. burdens for 22.26 and 22.27 into OMB for eagle permits is part of a system of
Control Number 1018-0022.

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Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations 46875

records covered by the Privacy Act (5 pursuant to the National Environmental U.S. Fish and Wildlife Service. 2007.
U.S.C. 552(a)). Policy Act of 1969, as amended (42 National Bald Eagle Management
We estimate receiving 1,120 permit U.S.C. 4321 et seq.). Copies of the final Guidelines, Arlington, Virginia.
applications for individual takes under environmental assessment are available
List of Subjects in 50 CFR Part 13
§ 22.26; 70 applications for nest take on our website at
permits under § 22.27; and 40 migratorybirds/baldeagle.htm Administrative practice and
applications for programmatic permits Literature Cited procedure, Exports, Fish, Imports,
under § 22.26 and § 22.27, annually. We Plants, Reporting and record keeping
expect about one third may be Federal Good, R. E., R. M. Nielson, H. H. requirements, Transportation, Wildlife.
Government agencies. Therefore, we Sawyer, and L. L. McDonald. 2004.
estimate that approximately 746 non- Population level survey of golden eagles List of Subjects in 50 CFR Part 22
Federal applicants will apply for eagle- (Aquila chrysaetos) in the Western
United States. Final Report submitted to Birds, Exports, Imports, Migratory
take permits, 46 non-Federal applicants Birds, Reporting and recordkeeping
will submit applications for eagle nest the Division of Migratory Bird
Management, U.S. Fish and Wildlife requirements, Transportation, Wildlife.
take permits, and 26 non-Federal
applicants will apply for programmatic Service. Western Ecosystems
Technology, Incorporated; Cheyenne, Regulation Promulgation
permits. We estimate it will take an
average of 16 hours to complete an Wyoming. ■ For the reasons described in the
application for an individual take Good, R. E., R. M. Nielson, L. L. preamble, we amend Subchapter B of
McDonald, and D. Tidhar. 2007. Results Chapter I, Title 50 of the Code of
permit. Programmatic permit
of the 2006 survey of golden eagles Federal Regulations, as set forth below:
applications will require more time,
(Aquila chrysaetos) in the Western
particularly at the outset as the first
United States. Report submitted to the PART 13—GENERAL PERMIT
ones are developed for a given industry.
Division of Migratory Bird Management, PROCEDURES
As programmatic permits measures are
U.S. Fish and Wildlife Service. Western
developed for particular industries, the ■ 1. The authority citation for part 13
Ecosystems Technology, Incorporated;
time it will take to apply for these continues to read as follows:
Cheyenne, Wyoming.
permits will decrease. We estimate that Kirk, D. A. and C. Hyslop. 1998.
the average programmatic take permit Authority: 16 U.S.C. 668a, 704, 712, 742j-
Population status and recent trends in 1, 1374(g), 1382, 1538(d), 1539, 1540(f), 3374,
application will require 40 hours to Canadian Raptors: A review. Biological 4901–4916; 18 U.S.C. 42; 19 U.S.C. 1202; 31
prepare, although early programmatic Conservation 83:91-118. U.S.C. 9701.
permits that will serve as the Kochert, M. N., K. Steenhof, C. L.
‘‘prototypes’’ for subsequent McIntyre, and E. H. Craig. 2002. Golden ■ 2. Amend the table in § 13.11(d)(4) as
applications will require more time. Eagle (Aquila chrysaetos). Number 684 follows:
An agency may not conduct or in The Birds of North America, A. Poole ■ a. Under the heading ‘‘Bald and
sponsor and a person is not required to and G. Gill, editors. The Birds of North Golden Eagle Protection Act,’’ remove
respond to a collection of information America, Inc., Philadelphia, the entry for ‘‘Eagle Depredation’’ and
unless it displays a currently valid OMB Pennsylvania. replace it with a new entry for ‘‘Eagle
control number. The public may McIntyre, C. L., D.C. Douglas, and M. Take Permits—Depredation and
comment, at any time, on the accuracy W. Collopy. 2008. Movements of golden Protection of Health and Safety’’; and
of the information collection burden in eagles (Aquila chrysaetos) from interior ■ b. Add four entries under ‘‘Bald and
this rule and may submit any comments Alaska during their first year of Golden Eagle Protection Act’’ in the
to the Information Collection Clearance independence. Auk 125:214-224. table immediately following the entry
Officer, Fish and Wildlife Service, Millsap, Brian and George Allen. for ‘‘Eagle Transport—Native American
Department of the Interior, 1849 C 2006. Effects of Falconry Harvest on Religious Purposes,’’ to read as follows:
Street, NW., (Mailstop 222-ARLSQ), Wild Raptor Populations in the United
Washington, D.C. 20240. States: Theoretical Considerations and § 13.11 Application procedures.
National Environmental Policy Act. Management Recommendations. * * * * *
The Service has prepared an Wildlife Society Bulletin, 34(5):1392- (d) * * *
environmental assessment of this action, 1400. (4) User fees. * * *

Type of Permit CFR citation Fee Amendment Fee

* * * * *
Bald and Golden Eagle Protection Act


Eagle Take permits—Depredation and Protection of Health and Safety 50 CFR 22 100


Eagle Take—Associated With but Not the Purpose of an Activity 50 CFR 22 500 150
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Eagle Take—Associated With but Not the Purpose of an Activity—Programmatic 50 CFR 22 1000 500

Eagle Nest Take 50 CFR 22 500 150

Eagle Nest Take—Programmatic 50 CFR 22 1000 500


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* * * * * measures that are approved by the logistics in light of overall project

■ 3. Amend the table in §13.12(b) as Service and represent the best available purposes.
follows: techniques to reduce eagle disturbance Programmatic permit means a permit
■ a. Under ‘‘Eagle permits,’’ remove the and ongoing mortalities to a level where that authorizes programmatic take. A
entry for ‘‘Depredation control’’ and remaining take is unavoidable. programmatic permit can cover other
replace it with ‘‘Depredation and * * * * * take in addition to programmatic take.
Protection of Health and Safety’’; and Communal roost site means an area Programmatic take means take that is
■ b. Add to the table the following where eagles gather repeatedly in the recurring, is not caused solely by
entries in numerical order by section course of a season and shelter overnight indirect effects, and that occurs over the
number to read as follows: and sometimes during the day in the long term or in a location or locations
event of inclement weather. that cannot be specifically identified.
§ 13.12 General information requirements
on applications for permits. Cumulative effects means the * * * * *
incremental environmental impact or Safety emergency means a situation
* * * * *
effect of the proposed action, together that necessitates immediate action to
(b) * * *
with impacts of past, present, and alleviate a threat of bodily harm to
Type of permit Section reasonably foreseeable future actions. humans or eagles.
* * * * * Take means pursue, shoot, shoot at,
* * * * * Eagle nest means any readily poison, wound, kill, capture, trap,
identifiable structure built, maintained, collect, destroy, molest, or disturb.
Eagle permits: Territory means an area that contains,
or used by bald eagles or golden eagles
for the purpose of reproduction. or historically contained, one or more
* * * * *
nests within the home range of a mated
* * * * * pair of eagles.
Depredation and Protection of 22.23 Foraging area means an area where
Health and Safety * * * * *
eagles regularly feed during one or more
seasons. ■ 6. Amend § 22.4 as follows:
* * * * *
■ a. In paragraph (a), the first sentence,
* * * * *
Eagle Take—Associated With 22.26 by adding ‘‘and 1018-0136’’
Important eagle-use area means an
but Not the Purpose of an immediately following ‘‘1018-0022’’;
eagle nest, foraging area, or communal
Activity and
roost site that eagles rely on for ■ b. By revising paragraph (b) to read as
Eagle Nest Take 22.27 breeding, sheltering, or feeding, and the follows:
landscape features surrounding such
* * * * * nest, foraging area, or roost site that are § 22.4 Information collection requirements.
essential for the continued viability of * * * * *
PART 22—EAGLE PERMITS the site for breeding, feeding, or (b) Direct comments regarding any
sheltering eagles. aspect of these reporting requirements
■ 4. The authority citation for part 22 Inactive nest means a bald eagle or to the Service Information Collection
continues to read as follows: golden eagle nest that is not currently Control Officer, MS-222 ARLSQ, U.S.
being used by eagles as determined by Fish and Wildlife Service, Washington,
Authority: 16 U.S.C. 668–668d; 16 U.S.C. the continuing absence of any adult, DC 20240, or the Office of Management
703–712; 16 U.S.C. 1531–1544. egg, or dependent young at the nest for and Budget, Paperwork Reduction
■ 5. Amend § 22.3 as follows: at least 10 consecutive days Project (1018-0022 and 1018-0136),
■ a. By revising the introductory immediately prior to, and including, at Washington, DC 20603.
paragraph to read as set forth below; present. An inactive nest may become
■ b. By removing the definition of active again and remains protected ■ 7. Amend § 22.23 by revising:
‘‘Golden eagle nest’’; under the Eagle Act. ■ a. The section heading;
■ c. By revising the definitions of Indirect effects means effects for ■ b. Paragraph (a) introductory text and
‘‘Inactive nest’’ and Take’’ to read as set which a proposed action is a cause, and paragraphs (a)(5) and (a)(6);
forth below; and which may occur later in time and/or be ■ c. Paragraph (b) introductory text;
■ d. By adding new definitions for ■ d. Paragraph (c) introductory text and
physically manifested beyond the initial
‘‘Advanced conservation practices’’, impacts of the action, but are still paragraphs (c)(2) and (c)(3); and
‘‘Communal roost site’’, ‘‘Cumulative ■ e. Paragraph (d), to read as follows:
reasonably likely to occur.
effects’’, ‘‘Eagle nest’’, ‘‘Foraging area’’, Maximum degree achievable means § 22.23 What are the requirements for
‘‘Important eagle-use area’’, ‘‘Indirect the standard at which any take that permits to take depredating eagles and
effects’’, ‘‘Maximum degree achievable’’, occurs is unavoidable despite eagles that pose a risk to human or eagle
‘‘Necessary to ensure public health and implementation of advanced health and safety?
safety’’, ‘‘Practicable’’, ‘‘Programmatic conservation practices. (a) How do I apply for a permit? You
permit’’, ‘‘Programmatic take’’, ‘‘Safety Necessary to ensure public health and must submit applications for permits
emergency’’ and ‘‘Territory’’ to read as safety means required to maintain under this section to the appropriate
set forth below. society’s well-being in matters of health Regional Director—Attention: Migratory
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§ 22.3 What definitions do you need to and safety. Bird Permit Office. You can find
know? * * * * * addresses for the appropriate Regional
In addition to the definitions Practicable means capable of being Directors in 50 CFR 2.2. Your
contained in part 10 of this subchapter, done after taking into consideration, application must contain the
and unless the context otherwise relative to the magnitude of the impacts information and certification required
requires, in this part 22: to eagles, the following three things: the by § 13.12(a) of this subchapter, and the
Advanced conservation practices cost of remedy compared to proponent following additional information:
means scientifically supportable resources; existing technology; and * * * * *

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(5) Kind and number of livestock or necessary to protect an interest in a to cause take. For ongoing activities and
domestic animals owned by applicant, if particular locality; associated with but enduring site features that continue to
applicable; not the purpose of the activity; and be likely to result in take, periodic
(6) Kind and amount of alleged (1) For individual instances of take: monitoring may be required for as long
damage, or description of the risk posed the take cannot practicably be avoided; as the data are needed to assess impacts
to human health and safety or eagles; or to eagles.
and (2) For programmatic take: the take is (3) You must submit an annual report
* * * * * unavoidable even though advanced summarizing the information you
(b) What are the permit conditions? In conservation practices are being obtained through monitoring to the
addition to the general conditions set implemented. Service every year that your permit is
(b) Definitions. In addition to the valid and for up to 3 years after
forth in part 13 of this subchapter B,
definitions contained in part 10 of this completion of the activity or
permits to take bald or golden eagles
subchapter, and § 22.3, the following termination of the permit, as specified
under this section are subject to the
definition applies in this section: in your permit. If your permit expires or
following conditions: Eagle means a live bald eagle is suspended or revoked before the
* * * * * (Haliaeetus leucocephalus), live golden activity is completed, you must submit
(c) Issuance criteria. The Director will eagle (Aquila chrysaetos), a bald eagle the report within 60 days of such date.
not issue a permit to take bald or golden egg, or a golden eagle egg. Reporting requirements include:
eagles unless the Director has (c) Permit conditions. In addition to (i) Whether eagles are observed using
determined that such taking is the conditions set forth in part 13 of this the important eagle-use areas designated
compatible with the preservation of the subchapter, which govern permit on the permit; and
bald or golden eagle. In making such renewal, amendment, transfer, (ii) Description of the human
determination, the Director will suspension, revocation, and other activities conducted at the site when
consider the following: procedures and requirements for all eagles are observed.
* * * * * permits issued by the Service, your (4) While the permit is valid and for
(2) Whether evidence shows that bald authorization is subject to the following up to 3 years after it expires, you must
or golden eagles have in fact become additional conditions: allow Service personnel, or other
seriously injurious to wildlife or to (1) You must comply with all qualified persons designated by the
agriculture or other interests in the avoidance, minimization, or other Service, access to the areas where eagles
particular locality to be covered by the mitigation measures determined by the are likely to be affected, at any
permit and the injury complained of is Director as reasonable and specified in reasonable hour, and with reasonable
substantial, or that bald or golden eagles the terms of your permit to compensate notice from the Service, for purposes of
pose a significant risk to human or eagle for the detrimental effects, including monitoring eagles at the site(s).
health and safety; and indirect effects, of the permitted activity (5) The authorizations granted by
(3) Whether the only way to abate or on the regional eagle population; permits issued under this section apply
prevent the damage caused by the bald (2) You may be required to monitor only to take that results from activities
or golden eagle is to take some or all of eagle use of important eagle-use areas conducted in accordance with the
the offending birds. where eagles are likely to be affected by description contained in the permit
(d) Tenure of permits. The tenure of your activities for up to 3 years after application and the terms of the permit.
any permit to take bald or golden eagles completion of the activity or as set forth If the permitted activity changes after a
under this section is that shown on the in a separate management plan, as permit is issued, you must immediately
face of the permit. We will not issue specified on your permit. Unless contact the Service to determine
these permits for terms longer than 90 different monitoring protocols are whether a permit amendment is
days, except that permits to authorize required under a separate management required in order to retain take
disturbance associated with hazing plan approved by the Service and authorization.
eagles from the vicinity may be valid for denoted on the permit, monitoring (6) You must contact the Service
up to 5 years. We may amend, suspend, consists of periodic site visits, during immediately upon discovery of any
or revoke permits issued for a period of the season(s) when eagles would unanticipated take.
longer than 90 days if new information normally be present, to the area where (7) The Service may amend, suspend,
indicates that revised permit conditions the take is likely to occur, and noting or revoke a programmatic permit issued
are necessary, or that suspension or whether eagles continue to nest, roost, under this section if new information
revocation is necessary, to safeguard or forage there. The periodic monitoring indicates that revised permit conditions
local or regional eagle populations. is required for the duration of the are necessary, or that suspension or
activity that is likely to cause take revocation is necessary, to safeguard
■ 8. Amend part 22, subpart C, by (during the season(s) that eagles would local or regional eagle populations. This
adding new § 22.26 and § 22.27 to read normally be present). The frequency and provision is in addition to the general
as follows: duration of required monitoring after criteria for amendment, suspension, and
the activity is completed will depend on revocation of Federal permits set forth
Subpart C—Eagle Permits the form and magnitude of the in §§ 13.23, 13.27, and 13.28.
* * * * * anticipated take and the objectives of (8) Notwithstanding the provisions of
associated conservation measures, not to § 13.26 of this subchapter, you remain
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§ 22.26 Permits for eagle take that is exceed what is reasonable to meet the responsible for all outstanding
associated with, but not the purpose of, an primary purpose of the monitoring, monitoring requirements and mitigation
activity. which is to provide data needed by the measures required under the terms of
(a) Purpose and scope. This permit Service regarding the impacts of human the permit for take that occurs prior to
authorizes take of bald eagles and activity on eagles for purposes of cancellation, expiration, suspension, or
golden eagles where the take is adaptive management. Monitoring will revocation of the permit.
compatible with the preservation of the not be required beyond 3 years after (9) You must promptly notify the
bald eagle and the golden eagle; completion of an activity that was likely Service of any eagle(s) found injured or

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dead at the activity site, regardless of programmatic authorizations, the take is (i) An active or inactive nest where
whether the injury or death resulted unavoidable despite application of necessary to alleviate a safety
from your activity. The Service will advanced conservation practices emergency;
determine the disposition of such developed in coordination with the (ii) An inactive eagle nest when the
eagles. Service. removal is necessary to ensure public
(10) The authorization granted by (4) Whether issuing the permit would health and safety;
permits issued under this section is not preclude the Service from authorizing (iii) An inactive nest that is built on
valid unless you are in compliance with another take necessary to protect an a human-engineered structure and
all Federal, tribal, State, and local laws interest of higher priority, according to creates a functional hazard that renders
and regulations applicable to take of the following prioritization order: the structure inoperable for its intended
eagles. (i) Safety emergencies; use; or
(d) Applying for an eagle take permit. (ii) Native American religious use for (iv) An inactive nest, provided the
(1) You are advised to coordinate with rites and ceremonies that require eagles take is necessary to protect an interest
the Service as early as possible for be taken from the wild; in a particular locality and the activity
advice on whether a permit is needed (iii) Renewal of programmatic take necessitating the take or the mitigation
and for technical assistance in permits; for the take will, with reasonable
assembling your permit application (iv) Non-emergency activities certainty, provide a clear and
package. The Service may provide necessary to ensure public health and substantial benefit to eagles.
guidance on developing complete and safety; and (2) Where practicable and biologically
adequate application materials and will (v) Other interests. warranted, the permit may require a
(5) Any additional factors that may be nest to be relocated, or a substitute nest
determine when the application form
relevant to our decision whether to provided, in a suitable site within the
and materials are ready for submission.
issue the permit, including, but not same territory to provide a viable
(2) Your application must consist of a
limited to, the cultural significance of a nesting option for eagles within that
completed application Form 3-200-71
local eagle population. territory, unless such relocation would
and all required attachments. Send
(f) Required determinations. Before
applications to the Regional Director of create a threat to safety. However, we
we issue a permit, we must find that:
the Region in which the disturbance (1) The direct and indirect effects of may issue permits to remove nests that
would occur—Attention: Migratory Bird the take and required mitigation, we determine cannot or should not be
Permit Office. You can find the current together with the cumulative effects of relocated. The permit may authorize
addresses for the Regional Directors in other permitted take and additional take of eggs or nestlings if present. The
§2.2 of subchapter A of this chapter. factors affecting eagle populations, are permit may also authorize the take of
(e) Evaluation of applications. In compatible with the preservation of bald adult eagles (e.g., disturbance or
determining whether to issue a permit, eagles and golden eagles; capture) associated with the removal or
we will evaluate: (2) The taking is necessary to protect relocation of the nest.
(1) Whether take is likely to occur a legitimate interest in a particular (3) A programmatic permit may be
based on the magnitude and nature of locality; issued under this section to cover
the impacts of the activity, which (3) The taking is associated with, but multiple nest takes over a period of up
include indirect effects. For potential not the purpose of, the activity; to 5 years, provided the permittee
take in the form of disturbance, this (4) The taking cannot practicably be complies with comprehensive measures
evaluation would include: avoided; or for programmatic that are developed in coordination with
(i) The prior exposure and tolerance authorizations, the take is unavoidable; the Service, designed to reduce take to
to similar activity of eagles in the (5) The applicant has avoided and the maximum degree technically
vicinity; minimized impacts to eagles to the achievable, and specified as conditions
(ii) Visibility of the activity from the extent practicable, and for programmatic of the permit.
eagle’s nest, roost, or foraging perches; authorizations, the taking will occur (4) This permit does not authorize
and despite application of advanced intentional, lethal take of eagles.
(iii) Whether alternative suitable eagle conservation practices; and (b) Conditions.
nesting, roosting, and/or feeding areas (6) Issuance of the permit will not (1) Except for take that is necessary to
that would not be detrimentally affected preclude issuance of another permit alleviate an immediate threat to human
by the activity are available to the eagles necessary to protect an interest of higher or eagle safety, only inactive eagle nests
potentially affected by the activity. priority as set forth in paragraph (e)(4) may be taken under this permit.
(2) Whether the take is: of this section. (2) When an active nest must be
(i) Compatible with the preservation (g) We may deny issuance of a permit removed under this permit, any take of
of the bald eagle and the golden eagle, if we determine that take is not likely to nestlings or eggs must be conducted by
including consideration of indirect occur. a Service-approved, qualified, and
effects and the cumulative effects of (h) Permit duration. The duration of permitted agent, and all nestlings and
other permitted take and other each permit issued under this section viable eggs must be immediately
additional factors affecting eagle will be designated on its face, and will transported to foster/recipient nests or a
populations; be based on the duration of the rehabilitation facility permitted to care
(ii) Associated with the permanent proposed activities, the period of time for eagles, as directed by the Service.
loss of an important eagle use area; for which take will occur, the level of (3) Possession of the nest for any
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(iii) Necessary to protect a legitimate impacts to eagles, and mitigation purpose other than removal or
interest in a particular locality; and measures, but will not exceed 5 years. relocation is prohibited without a
(iv) Associated with, but not the separate permit issued under this part
purpose of, the activity. § 22.27 Removal of eagle nests. authorizing such possession.
(3) Whether the applicant has (a) Purpose and scope. (4) You must submit a report
proposed avoidance and minimization (1) A permit may be issued under this consisting of a summary of the activities
measures to reduce the take to the section to authorize removal or conducted under the permit to the
maximum degree practicable, and for relocation of: Service within 30 days after the

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permitted take occurs, except that for addresses for the Regional Directors in (ii) Native American religious use for
programmatic permits, you must report §2.2 of subchapter A of this chapter. rites and ceremonies that require eagles
each nest removal within 10 days after (d) Evaluation of applications. In be taken from the wild;
the take and submit an annual report by determining whether to issue a permit, (iii) Renewal of programmatic nest-
January 31 containing all the we will evaluate: take permits;
information required in Form 3-202-16 (1) Whether the activity meets the (iv) Non-emergency activities
for activities conducted during the requirements of paragraph (a)(1) of this necessary to ensure public health and
preceding calendar year. section; safety;
(5) You may be required to monitor (2) The direct and indirect effects of (v) Resource development or recovery
the area and report whether eagles the take and required mitigation, operations (under § 22.25, for golden
attempt to build or occupy another nest together with the cumulative effects of eagle nests only);
at another site in the vicinity for the other permitted take and additional
(vi) Other interests.
duration specified in the permit. factors affecting eagle populations;
(6) You may be required under the (3) Whether there is a practicable (6) For take that is not necessary to
terms of the permit to harass eagles from alternative to nest removal that will alleviate an immediate threat to human
the area following the nest removal protect the interest to be served; safety or eagles, we additionally must
when the Service determines it is (4) Whether issuing the permit would find that suitable nesting and foraging
necessary to prevent eagles from re- preclude the Service from authorizing habitat is available to the area nesting
nesting in the vicinity. another take necessary to protect an population of eagles to accommodate
(7) You must comply with all interest of higher priority, as set forth in any eagles displaced by the nest
avoidance, minimization, or other paragraph (e)(5) of this section; removal.
mitigation measures determined by the (5) For take that is not necessary to (f) Tenure of permits. The tenure of
Director as reasonable and specified in alleviate an immediate safety any permit to take eagle nests under this
the terms of your permit to compensate emergency, whether suitable nesting section is set forth on the face of the
for the detrimental effects, including and foraging habitat is available to permit and will not be longer than 5
indirect effects, of the permitted activity accommodate eagles displaced by the years.
on—and for permits issued under nest removal; and
■ 9. Amend § 22.28 by revising
paragraph (a)(1)(iv) of this section, to (6) Any additional factors that may be paragraphs (a) and (b) to read as follows:
provide a net benefit to—the regional relevant to our decision whether to
eagle population. issue the permit, including, but not § 22.28 Permits for bald eagle take
(8) The Service may amend or revoke limited to, the cultural significance of a exempted under the Endangered Species
a programmatic permit issued under local eagle population. Act.
this section if new information indicates (e) Required determinations. Before (a) Purpose and scope. This permit
that revised permit conditions are issuing a permit under this section, we authorizes take of bald eagles
necessary, or that suspension or must find that: (Haliaeetus leucocephalus) in
revocation is necessary, to safeguard (1) The direct and indirect effects of compliance with the terms and
local or regional eagle populations. the take and required mitigation, conditions of a section 7 incidental take
(9) Notwithstanding the provisions of together with the cumulative effects of statement under the Endangered Species
§13.26 of this subchapter, you remain other permitted take and additional Act of 1973, as amended (ESA) (16
responsible for all outstanding factors affecting eagle populations, are U.S.C. 1531 et seq.; 50 CFR 402, Subpart
monitoring requirements and mitigation compatible with the preservation of the B) issued prior to the effective date of
measures required under the terms of bald eagle or the golden eagle; 50 CFR 22.26.
the permit for take that occurs prior to (2) For inactive nests: (b) Issuance criteria. Before issuing
cancellation, expiration, suspension, or (i) The take is necessary to ensure you a permit under this section, we
revocation of the permit. public health and safety; must find that you are in full
(10) The authorization granted by (ii) The nest is built on a human- compliance with the terms and
permits issued under this section is not engineered structure and creates a conditions contained in the applicable
valid unless you are in compliance with functional hazard that renders the ESA incidental take statement issued
all Federal, tribal, State, and local laws structure inoperable for its intended prior to the effective date of 50 CFR
and regulations applicable to take of use; or 22.26 for take of eagles, based on your
eagles. (iii) The take is necessary to protect a certification and any other relevant
(c) Applying for a permit to take eagle legitimate interest in a particular information available to us, including,
nests. locality, and the activity necessitating but not limited to, monitoring or
(1) If the take is necessary to address the take or the mitigation for the take progress reports required pursuant to
an immediate threat to human or eagle will, with reasonable certainty, provide your incidental take statement. The
safety, contact your local U.S. Fish and a clear and substantial benefit to eagles; terms and conditions of the Eagle Act
Wildlife Service Regional Migratory (3) For active nests, the take is permit under this section, including any
Bird Permit Office ( necessary to alleviate an immediate modified terms and conditions, must be
permits/mbpermits/addresses.html) at threat to human safety or eagles; compatible with the preservation of the
the earliest possible opportunity to (4) There is no practicable alternative bald eagle.
cprice-sewell on DSKGBLS3C1PROD with RULES2

inform the Service of the emergency. to nest removal that would protect the * * * * *
(2) Your application must consist of a interest to be served; and
completed application Form 3-200-72 (5) Issuing the permit will not Dated: May 18, 2009.
and all required attachments. Send preclude the Service from authorizing Will Shafroth,
applications to the Regional Director of another take necessary to protect an Acting Assistant Secretary for Fish and
the Region in which the disturbance interest of higher priority, according to Wildlife and Parks.
would occur—Attention: Migratory Bird the following prioritization order: [FR Doc. E9–21589 Filed 9–10– 09; 8:45 am]
Permit Office. You can find the current (i) Safety emergencies; BILLING CODE 4310–55–S

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