[Federal Register Volume 74, Number 175 (Friday, September 11, 2009)]
[Rules and Regulations]
[Pages 46836-46879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21589]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Parts 13 and 22



Eagle Permits; Take Necessary To Protect Interests in Particular 
Localities; Final Rules

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

[[Page 46836]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 22

[FWS-R9-MB-2008-0057;
91200-1231-9BPP-L2]
RIN 1018-AV81


Eagle Permits; Take Necessary To Protect Interests in Particular 
Localities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: In conjunction with release of a final environmental 
assessment of this action, the U.S. Fish and Wildlife Service (``we'' 
or ``the Service'') is finalizing permit regulations to authorize 
limited take of bald eagles (Haliaeetus leucocephalus) and golden 
eagles (Aquila chrysaetos) under the Bald and Golden Eagle Protection 
Act (Eagle Act), where the take to be authorized is associated with 
otherwise lawful activities. These regulations also establish permit 
provisions for intentional take of eagle nests under particular, 
limited circumstances.

DATES: This rule goes into effect on November 10, 2009.

FOR FURTHER INFORMATION CONTACT: Eliza Savage, Division of Migratory 
Bird Management, via e-mail at [email protected]; telephone: 703-
358-2329; or U.S. Fish and Wildlife Service, 4401 North Fairfax Drive, 
Mailstop 4107, Arlington, Virginia 22203-1610.

SUPPLEMENTARY INFORMATION:

Background

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

[[Page 46837]]

prohibitions contained in the ESA, such as those that prescribe the 
take of bald eagles, no longer apply. However, the potential for human 
activities to violate Federal law by taking eagles remains under the 
prohibitions of the Eagle Act and the MBTA. The Eagle Act defines the 
``take'' of an eagle to include a broad range of actions: ``pursue, 
shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest 
or disturb.'' ``Disturb'' is defined in regulations at 50 CFR 22.3 as: 
``to agitate or bother a bald or golden eagle to a degree that causes, 
or is likely to cause, based on the best scientific information 
available, (1) injury to an eagle, (2) a decrease in its productivity, 
by substantially interfering with normal breeding, feeding, or 
sheltering behavior, or (3) nest abandonment, by substantially 
interfering with normal breeding, feeding, or sheltering behavior.''
    Many actions that are considered likely to incidentally take (harm 
or harass) eagles under the ESA will also disturb or otherwise take 
eagles under the Eagle Act. Until now, there was no regulatory 
mechanism in place under the Eagle Act to permit take of bald or golden 
eagles comparable to incidental take permits under the ESA. This rule 
adds a new section at 50 CFR 22.26 to authorize the issuance of permits 
to take bald eagles and golden eagles on a limited basis. The 
regulations are applicable to golden eagles as well as bald eagles. We 
will authorize take of bald or golden eagles only if we determine that 
the take (1) is compatible with the preservation of the bald eagle and 
the golden eagle and (2) cannot practicably be avoided. For purposes of 
these regulations, ``compatible with the preservation of the bald eagle 
or the golden eagle'' means ``consistent with the goal of stable or 
increasing breeding populations.'' Although the biologically-based take 
thresholds for permitting under these regulations will be based on 
regional populations (as explained below and in more detail in the 
FEA), we will also consider other factors, such as cultural 
significance, that may warrant protection of smaller and/or isolated 
populations within a region.
    We are adding a second new section at 50 CFR 22.27 to authorize the 
removal of bald eagle and golden eagle nests where (1) necessary to 
alleviate a safety hazard to people or eagles, (2) necessary to ensure 
public health and safety, (3) the nest prevents the use of a human-
engineered structure, or (4) the activity, or mitigation for the 
activity, will provide a net benefit to eagles. We are also 
promulgating new definitions under the Eagle Act to clarify terms used 
in the permit regulations. Permit issuance under Sec.  22.26 and Sec.  
22.27 will be governed by the permit provisions presently in 50 CFR 
parts 13 and 22, and new provisions we are finalizing as Sec.  22.26 
and Sec.  22.27.
    In our June 5, 2007, proposed rule, we also proposed certain 
provisions to extend Eagle Act authorizations to persons previously 
granted authorization to take eagles under the ESA. We split the 
rulemaking into two separate rules and finalized the ESA-related 
provisions separately on May 20, 2008 (73 FR 29075).
    Most rules take effect 30 days after Federal Register publication; 
however, more time is needed to work out important details about how 
this program will be implemented. Therefore this rule has an effective 
date of 60 days after publication in the Federal Register. We are 
drafting implementation guidance, and will release it for public notice 
and comment before officially adopting it. Although the implementation 
guidance will not be finalized by the rule's effective date, the extra 
30 days will help promote consistency in the initial permit 
administration, and we can begin issuing permits using the draft 
guidance.

History

    On August 8, 2007, the bald eagle was removed from the List of 
Threatened and Endangered Wildlife (72 FR 37345, July 9, 2007). The 
final delisting rule also constituted our final decision that the 
Sonoran Desert population of bald eagles did not qualify as a distinct 
population segment (DPS), and was therefore not a listable entity under 
the ESA. Our finding on the status of the Sonoran Desert population was 
challenged in court. A March 5, 2008, ruling by the U.S. District Court 
for the District of Arizona (Center for Biological Diversity v. 
Kempthorne, CV 07-0038-PHX-MHM (D. Ariz)) ruled in favor of the 
plaintiffs. As a result of the court order, we published two documents 
in the Federal Register. First, on May 1, 2008, we published a final 
rule reinstating ESA threatened status for bald eagles in the Sonoran 
Desert area of central Arizona (73 FR 23966). The final rule also 
included a map showing the geographic area where bald eagles are 
protected as a threatened species. Second, on May 20, 2008, we 
published a notice initiating a status review for bald eagles in the 
Sonoran Desert area of central Arizona (73 FR 29096). Once the status 
review is completed, we will issue a 12-month finding on whether 
listing these bald eagles as a DPS under the ESA is warranted, and if 
so, whether that DPS should be listed as threatened or endangered.
    We estimate the current number of breeding pairs in the 48 
contiguous States to be over 9,700. Bald eagles were never listed as 
threatened or endangered in Alaska, where we currently estimate bald 
eagles to number between 50,000 and 70,000 birds, including 
approximately 15,000 breeding pairs. Bald eagles do not occur in 
Hawaii.
    Under sections 7(b)(4) and 10(a)(1)(B) of the ESA, we may authorize 
the incidental take of listed wildlife that occurs in the course of 
otherwise lawful activities. Thus, while the bald eagle was listed 
under the ESA in the lower 48 States (and where it is still listed, 
i.e., the Sonoran Desert area of central Arizona), two mechanisms were 
available to authorize take that was associated with, but not the 
purpose of, a human activity. Eagle take that was prohibited under the 
ESA is, in many instances, also prohibited under the Eagle Act. Now 
that the bald eagle is delisted (except for the Sonoran Desert 
population), a mechanism is needed to authorize take of bald eagles 
pursuant to the Eagle Act. The mechanism should also be available to 
authorize take of golden eagles, which were never listed as threatened 
or endangered under the ESA, as long as it is crafted with sufficient 
safeguards to ensure the preservation of both species.
    The Eagle Act provides that the Secretary of the Interior may 
authorize certain otherwise prohibited activities through promulgation 
of regulations. The Secretary is authorized to prescribe regulations 
permitting the ``taking, possession, and transportation of [bald or 
golden eagles] . . . for the scientific or exhibition purposes of 
public museums, scientific societies, and zoological parks, or for the 
religious purposes of Indian tribes, or . . . for the protection of 
wildlife or of agricultural or other interests in any particular 
locality,'' provided such permits are ``compatible with the 
preservation of the bald eagle or the golden eagle'' (16 U.S.C. 668a). 
In accordance with this authority, the Secretary has previously 
promulgated Eagle Act permit regulations for scientific and exhibition 
purposes (50 CFR 22.21), for Indian religious purposes (50 CFR 22.22), 
to take depredating eagles (50 CFR 22.23), to possess golden eagles for 
falconry (50 CFR 22.24), and for the take of golden eagle nests that 
interfere with resource development or recovery operations (50 CFR 
22.25). This rulemaking establishes permit regulations to authorize 
eagle take ``for the protection of . . . other interests in any 
particular locality.'' This statutory language accommodates a

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broad spectrum of public and private interests (such as utility 
infrastructure development and maintenance, road construction, 
operation of airports, commercial or residential construction, resource 
recovery, recreational use, etc.) that might ``take'' eagles as defined 
under the Eagle Act.
    In accordance with the National Environmental Policy Act (42 U.S.C. 
4321 et seq.), we have prepared a final environmental assessment (FEA) 
of this action. You can obtain a copy of the FEA from http://www.fws.gov/migratorybirds/baldeagle.htm.

Description of the Rulemaking

Take Permit Regulations Under 50 CFR 22.26.

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

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phrase ``consistent with the goal of'' will allow take that is 
compatible with long-term stability or growth of eagle populations. 
Adding the word ``breeding'' clarifies the significance of the number 
of breeding pairs for maintaining or growing populations, versus 
floaters (non-breeding adults). For more discussion on the biological 
basis for distinguishing between breeding eagles and floaters, see the 
FEA.
    To establish management populations for bald eagles, we used natal 
populations (eagles within the median natal dispersal range of each 
other, estimated at 43 miles) in our evaluation in order to look at 
distribution across the landscape. Being able to see where natal 
populations appear sparser, rather than concentrated, allows us to 
determine natural boundaries between regional eagle populations, 
reducing the risk that we would issue take permits in any one regional 
management area in a manner that is disproportionate to the population 
in the area.
    We acknowledge that this approach is somewhat subjective, and that 
the regional management populations delineated are not, in most cases, 
genetically or even demographically isolated. However, we believe the 
approach does serve to identify biologically-based, regional 
populations at a scale meaningful for eagle conservation. The Service's 
goal in managing bald eagles at this scale is to ensure permitted take 
does not negatively affect the species' status in any regional 
management population.
    Because the management populations delineated by this approach 
roughly correspond to the Service's organizational structure made up of 
eight Service Regional Offices, we will manage bald eagles based on 
populations within the eight Service Regions, with some shared 
populations. Permits will be administered by Service Regions in 
coordination with each other, especially where a management area lies 
in more than one Service Region. We plan to evaluate this management 
and administrative approach regularly, at least once every five years.
    For golden eagles, available data on distribution are not as 
spatially precise as data for bald eagles. We will manage take of 
golden eagles according to thresholds set at the Bird Conservation 
Region (BCR) level because the only range-wide estimates available for 
golden eagles are BCR-scale population estimates. BCRs are ecologically 
distinct regions in North America with similar bird communities, 
habitats, and resource management issues. Developed by a mapping team 
at the first international meeting of the North American Bird 
Conservation Initiative (NABCI) in 1998, BCRs are an application of the 
framework of nested ecological units delineated by the Commission for 
Environmental Cooperation (CEC).
    Because Service Regions are not administered according to BCR 
boundaries, we will administer permits by Service Regional Permit 
offices. Service Regions would coordinate closely when issuing permits 
to ensure that the threshold for that BCR is not exceeded. 
Unfortunately, there is little reliable recent data for breeding golden 
eagles. Many States have not had the resources to conduct monitoring of 
golden eagle populations, in some cases for up to 20 or more years. 
However, we will base thresholds on existing data and modeling until 
better data become available. As discussed further below and in greater 
detail in the FEA, the best available data we have for golden eagles 
indicate modest declines in the four BCRs that constitute 80 percent of 
its range in the lower 48 states. As a result, until we have additional 
data to show that populations can withstand additional take, we are 
deferring implementation of the new permit types for golden eagles, 
except for safety emergencies and programmatic permits. We will 
continue to issue historically-authorized take permits under existing 
permit types at the level of take carried out under those permits 
(average over 2002-2007).
    We will use modeling to evaluate the level of take we can permit 
that is compatible with this statutory threshold, taking into 
consideration the cumulative effects of all permitted take, including 
other forms of lethal take permitted under this section and other 
causes of mortality and nest loss. Due to the inherent limits of 
monitoring to detect precise fluctuations in bald eagle and golden 
eagle numbers, coupled with the uncertainty as to whether individual 
actions being permitted will in fact result in a ``take,'' we cannot 
precisely correlate each individual permit decision with a specific 
population impact. However, we will periodically re-calibrate regional 
take thresholds, using the best available data, including reporting 
data from permittees, data from post-delisting monitoring (for bald 
eagles), WEST surveys (for golden eagles), the Breeding Bird Survey, 
and fall and winter migration counts to assess the status of eagle 
populations and adjust permitting thresholds on an ongoing basis as 
appropriate.
    In our June 5, 2007, proposed rule, we stated that our preliminary 
analysis indicated that demand for permits under these regulations, and 
the effects of issuing those permits, including mitigation measures, 
would not be significant enough to cause a decline in eagle populations 
from current levels. (We recognized that take of bald eagles in the 
Southwest would need to be extremely limited, if permitted at all.) 
However, further analysis indicates that there are additional 
populations where a relatively modest level of demand for take permits 
could exceed the level of take that would be compatible with 
maintaining current population levels, particularly for golden eagles.
    A 2006 survey (Good and others, 2007) showed decreasing golden 
eagle populations in two BCRs. A draft report of 2007 surveys in the 
same areas (BCRs 9, 10, 16, and 17, hereinafter WEST areas) found 
decreasing golden eagle populations in two BCRs, one of which was the 
same as the previous report (Good and others, 2008). Kirk and Hyslop 
(1998) indicated that golden eagle populations may be declining in some 
areas of Canada. Good and others (2004) estimated that there were just 
over 27,000 golden eagles in the 4 BCRs in which the species is of 
conservation concern. These BCRs encompass much of the western U.S. 
population and most of the North American population of this species. 
Breeding bird surveys and migration counts are inconclusive but suggest 
lowered reproduction rates in the western United States, possibly due 
to habitat alteration and loss, with concomitant declines in prey 
(Kochert and others, 2002). A preliminary report on the 2008 surveys in 
the WEST areas showed population declines in all four BCRs covered in 
the survey, an area which is believed to contain approximately 80% of 
the golden eagle population in the lower 48 states.
    These new permits represent a somewhat different approach to eagle 
management and have significant policy implications and uncertainties. 
Those uncertainties and stochasticity (natural variability in vital 
rates affecting population trends) for both species support a more 
conservative approach than we proposed in our DEA, which proposed 
capping threshold at [frac12] maximum sustainable yield (MSY). The MSY 
is the greatest harvest rate over an indefinite period that does not 
produce a decline in the number of breeding adults in the population.
    For a number of reasons (outlined in the following discussion) we 
intend to initially cap permitted take of bald eagles at 5% estimated 
annual productivity. This approach is consistent with the 
recommendations made by Millsap and Allen (2006) for

[[Page 46840]]

permitting take of various raptor species for falconry purposes. For 
golden eagles west of 100 degrees West longitude, including in Alaska, 
we will initially implement this rule only insofar as issuing take 
permits based on levels of historically authorized take, safety 
emergencies, and take permits designed to reduce ongoing mortalities 
and/or disturbance. Future projects seeking programmatic permits would 
need to minimize their own take of golden eagles to the point that it 
is unavoidable and also reduce take from another source to completely 
offset any new take from the new activity. Estimates of golden eagle 
population size in Alaska are coarse, based upon even fewer data 
sources than in the lower 48 states, and juvenile survival may be 
significantly lower, so management would therefore need to be 
conservative. In addition, McIntyre et al. (2008) suggested that 
conservation strategies for migratory golden eagles require a 
continental approach.
    For golden eagles east of 100 degrees West longitude, we will not 
issue any take permits unless necessary to alleviate an immediate 
safety emergency. We do not have enough data on rates of golden eagle 
mortality in the eastern U.S. to issue programmatic take permits.
    Our modeling showed there would be negative effects to the floater 
portion of the bald eagle population (using population trend data from 
Florida) at [frac12] MSY and even some minor effects with setting take 
at 5% of estimated annual productivity. Floaters, for which monitoring 
is rarely conducted, serve to buffer populations from decline in times 
when productivity does not offset mortality, and also serve to provide 
a buffer for unforeseen effects to populations. Importantly, the models 
did not factor in the cumulative impacts that were discussed in the 
DEA. Furthermore, the lack of annual monitoring to ensure we are not 
having a negative effect on populations, particularly when the 
thresholds we are establishing would be in effect for five years, 
compels us to adopt the more conservative approach. Some commenters, 
including eagle experts in various parts of the U.S. believe the DEA's 
population numbers and survival rates for bald eagles may have been too 
high for some areas of the country.
    Additionally, the caps recommended in Millsap and Allen were in the 
context of falconry, where removal of birds from the population has no 
associated impacts to habitat, whereas many permits issued under both 
these new regulations will have long-term or permanent habitat-related 
impacts in addition to the removal of an individual from the 
population. Therefore, we believe that caps should be no less 
conservative than recommended for falconry take.
    The lower take thresholds also reflect the cultural significance of 
both species. Cultural significance is not limited to Native American 
religious purposes, but encompasses a broad cultural regard for both 
species. Although collected by some Native American tribes for 
ceremonial purposes, the overall cultural value placed on bald eagles 
and golden eagles is generally quite distinct from the value of 
harvesting them. This fact warrants a different, significantly more 
conservative approach than for managing game bird populations wherein 
allowable take approaches MSY.
    We intend, through a structured coordination process with States 
and tribes, to develop monitoring and research adequate to both resolve 
current uncertainties in the data and to provide enhanced ability to 
detect the effects of the permit program. If, after implementation for 
a time period commensurate with the normal population cycles of the 
eagle, data then indicate take thresholds can be increased in certain 
regions, we will increase thresholds accordingly to allow more take. 
One factor that should allow us to increase take thresholds in some 
regions for both species is the implementation of advanced conservation 
measures through programmatic permits to reduce ongoing take that is 
currently unauthorized. (See our discussion below under ``Programmatic 
Permits.'') For more detailed discussion of population modeling and 
permitting thresholds, please see our final environmental assessment of 
this action, available on our website at http://www.fws.gov/migratorybirds/baldeagle.htm.
    To address the possibility that demand exceeds our scientifically-
based take thresholds, the final regulation contains permit issuance 
criteria to ensure that requests by Native Americans to take eagles 
from the wild--where the take of live, wild eagles is absolutely 
necessary to meet the religious purposes of the tribe, as opposed to 
the use of feathers and parts that may be obtained from the National 
Eagle Repository--are given first priority over all other take, except 
as necessary to alleviate safety emergencies. (Permit regulations 
governing take and possession of eagles by Native Americans are set 
forth in 50 CFR 22.22) The American Indian Religious Freedom Act (42 
U.S.C. 1996), sets forth Federal policy to protect and preserve the 
inherent right of American Indians to express and exercise their 
traditional religions, including but not limited to, access to sites, 
use and possession of sacred objects, and the freedom to worship 
through ceremonials and traditional rites.
    If emergency and Native American religious needs can be met, the 
issuance criteria further provide that programmatic permit renewals are 
given third priority. Projects to promote and maintain public health 
and safety have fourth priority. For golden eagle nest take permits, 
resource development and recovery operations have fifth priority. 
Assuming those interests can be met, bald eagle take for other 
interests may be permitted as long as total take authorizations do not 
surpass 5% estimated annual productivity for the regional bald eagle 
population. Initially, until we have data to show that golden eagles 
can withstand additional take, we will issue permits at historically-
authorized take levels under existing permits, for emergency take, and 
for programmatic take (west of 100 degrees West longitude). If, in the 
future, data and modeling suggest golden eagle populations can support 
additional take, we would, in accordance with the prioritization 
criteria, begin to authorize golden eagle take at up to 1% of annual 
productivity, unless information available at that time demonstrates 
that higher levels of take can be supported (following Millsap and 
Allen 2006).
    The Service's Regional Directors each will be responsible for 
developing a structured allocation process consistent with the rule's 
prioritization criteria to be implemented in each Service Region if 
there is evidence that demand for take will exceed take thresholds for 
either species of eagle.
    Because we need, at least initially, to limit take permits for 
golden eagles to historically-authorized take levels, we will use the 
prioritization issuance criteria from this rule to guide permit 
decisions with regard to allocating all golden eagle take permits. For 
example, in Service Region 2, the Service has issued permits to take 28 
golden eagles per year on average from 2002 - 2007 under the various 
permit types that allow take (e.g., scientific collecting, depredation, 
Native American religious purposes, etc.). On average, 23 of the golden 
eagles were taken for Native American religious purposes. If next year, 
the demand from qualified Native Americans increases to 28, we will 
issue all the available take permits (28) to Native Americans--unless 
there is a need to take eagles to alleviate a safety emergency (to 
protect either eagles or

[[Page 46841]]

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

    \1\ By describing the standard (non-programmatic) permit as 
authorizing ``individual'' or ``one-time'' take, we do not mean to 
infer that only one eagle can be taken under a standard permit, or 
that if more than one eagle is taken, the take must occur 
simultaneously. We use the term, ``one-time'' for lack of a better 
word to refer to take is quantifiable and of a specified amount.
---------------------------------------------------------------------------

    We define ``programmatic permit'' as ``a permit that authorizes 
programmatic take. A programmatic permit can cover other take in 
addition to programmatic take.'' We can issue programmatic permits for 
disturbance as well as take resulting in mortalities, based on 
implementation of ``advanced conservation practices'' developed in 
coordination with the Service. ``Advanced conservation practices'' 
(ACPs) refers to scientifically-supportable measures that are approved 
by the Service and represent the best-available techniques to reduce 
eagle disturbance and/or ongoing mortalities to a level where remaining 
take is unavoidable. The Federal Highway Administration is an example 
of an agency for which this streamlined

[[Page 46842]]

approach may benefit the agency and eagles. A programmatic take permit 
may be appropriate for industries such as the energy and transportation 
providers, among others, if they elect to work with the Service to 
develop ACPs. The ACPs and plan specifications will then become permit 
conditions, along with monitoring and reporting requirements more 
comprehensive than those for individual take permits. Programmatic 
permits are designed to provide a net benefit to eagles by reducing 
ongoing unauthorized take. Accordingly, programmatic permit conditions 
will be designed to provide ongoing long-term benefits to eagles. 
Recipients of programmatic permits must perform more rigorous 
monitoring than is required for standard, individual take permits.
    Because the requirements for obtaining programmatic take 
authorization are designed to reduce take, the take authorized by 
programmatic permits for ongoing activities will not be subtracted from 
regional thresholds, nor would they be subject to the prioritization 
criteria. The reductions in take that result from implementation of new 
measures to reduce take from ongoing activities under programmatic 
permits may allow the Service to increase take thresholds and make 
additional permits available for other activities likely to result in 
take.
    Applicants for programmatic permits for new activities will be 
subject to the same rigorous standards and may also be required to 
apply conservation measures at other sites (possibly owned or operated 
by a third party) where eagles are taken by existing operations. The 
purpose of the off-site measures would be to reduce take to a level 
that offsets some or all of the new take from the applicant's activity. 
The degree to which the applicant would be required to offset the take 
will depend on the status of eagle populations in the region; if 
populations of the particular eagle species are robust, the Service may 
not require any off-site reductions in take. However, if regional 
populations cannot absorb significant new take, the Service may require 
the project proponent to completely offset the effects of the new 
activity with reductions in take elsewhere.
    To encourage potential applicants to seek programmatic permits 
(versus standard permits), the regulations contain issuance criteria 
that give priority to those seeking renewal of programmatic permits. 
These criteria will provide programmatic permittees with some assurance 
(though never an absolute guarantee) that previously authorized levels 
of take from on-going operations will continue to be authorized in the 
future. Programmatic permit renewals will have third priority, after 
(1) safety emergencies, and (2) take necessary to meet Native American 
religious needs, but before (4) non-emergency public health and safety.
    A programmatic permit is optional. Entities that engage in 
programmatic take and who wish to obtain authorization for the take can 
choose whether to apply for the programmatic take permit or apply for 
standard permits for individual takes. One advantage of opting for the 
programmatic permit is it would remove liability comprehensively. It 
also lessens concern about whether additional take can be authorized 
under take thresholds in the future. The disadvantage is that the 
process of working with the Service to develop the permit conditions is 
likely to be time-consuming and more expensive than seeking a standard 
permit. Also, implementation of the ACPs will in most cases require 
substantial resources. In the long term, however, depending on the 
scale of an applicant's operations, programmatic permits should be the 
most economical approach for authorizing long-term or wide-ranging take 
of eagles.
    A programmatic permit is not available where the only long-term 
take is due to indirect effects from an initial action. Programmatic 
take is the direct result of ongoing operations. The following are 
examples of programmatic take:
    1. A railroad that routinely strikes eagles feeding on carcasses on 
the tracks.
    2. Utilities that kill eagles through collisions and electrocutions 
from contact with power lines.
    3. Ongoing disturbance at a port due to vessel traffic and/or other 
port operations.
    4. Construction and maintenance of highways throughout a State or 
other jurisdiction that routinely disturbs eagles.
    5. Airports that periodically (but immediately upon discovery) need 
to remove eagle nests to protect human and eagle safety.

Below are examples of what is not programmatic take:

    1. Construction of a boat ramp, with or without long-term indirect 
effects that take eagles (boat traffic).
    2. Construction of a port when eagles are disturbed by pile driving 
and other construction activities.
    3. Construction of a single highway, or multiple highways, where 
eagle take can be projected to occur at particular locations and during 
specific project phases.
    Although we define ``programmatic take'' as take that results from 
an activity and not from the activity's indirect effects, many 
activities that result in programmatic take will also have adverse 
indirect effects on eagles. Therefore, most programmatic permits will 
authorize other take in addition to the programmatic take, to cover the 
indirect effects. The Service will consider indirect effects of 
activities under both types of permits, first when deciding whether to 
issue the permit, and again when establishing conservation measures. 
Because programmatic permits are designed to reduce take to the level 
where it is unavoidable, if there are ACPs that will reduce take caused 
by indirect effects, those ACPS will be required conditions of the 
programmatic permit.
    As further illustration of the differences between programmatic and 
standard permits, and the need to consider indirect effects under both, 
the following are two distinct activities that each directly take 
eagles and also have indirect effects that continue to take eagles; 
however, only one programmatically takes eagles and can be covered with 
a programmatic take permit.
    First, a large housing development provides buffers around each 
nest on the property as recommended by the Service to avoid disturbing 
eagles. However, due to various constraints, the developer is unable to 
avoid impacts to the eagles' prey base, resulting in take of eagles in 
the form of lost productivity or abandonment of nesting territories. In 
this case, the construction of the development is not ongoing. What 
continues are the indirect effects of depriving eagles of their prey 
base. Therefore, the take caused by the housing development is not 
programmatic take, and to be authorized, would have to be covered under 
a standard permit.
    Our second example is a company interested in siting a wind-power 
facility. We are currently unaware of any measures that would eliminate 
eagle mortalities when turbines are sited in golden eagle habitat 
(including migration corridors). If ACPs can be developed to 
significantly reduce the take, the operator may qualify for a 
programmatic take permit, since the ongoing mortalities are the direct 
result of the operation of the turbines. In addition to measures 
designed to reduce take directly, ACPs should also include measures to 
reduce indirect effects that contribute to the level of take, such as 
ensuring the project site does not

[[Page 46843]]

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

[[Page 46844]]

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

[[Page 46845]]

permit process, in order to ensure consistency in implementation 
throughout the Service. We will work with interested States and tribes 
in developing the implementation guidance, and the general public will 
also have the opportunity to provide input once we make a draft 
available through a notice in the Federal Register.

Eagle Nest Take Under 50 CFR 22.27

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

[[Page 46846]]

    As with other eagle take permits, nest take permits issued under 
Sec.  22.27 will be subject to the take thresholds discussed earlier 
and more fully in the final environmental assessment of this action.
    Similar to our approach to Sec.  22.26 and some other recent 
Service regulations, we have not codified the application requirements 
within the regulation so we can more easily modify them based on new 
information and public input gathered through the triennial OMB 
information collection process (see above discussion under Sec.  22.26, 
Permit Application Process). The current application form we will use 
for this regulation requires applicants to submit the following 
information:
    (1) The number of nests proposed to be taken, whether the nest(s) 
is a bald eagle or golden eagle nest, and whether the nest(s) is active 
or inactive; and if known, whether it has been active in the 5 
preceding breeding seasons.
    (2) Why the removal of the nest(s) is necessary, including the 
interest to be served in a particular locality;
    (3) A description of the property, including maps and digital 
photographs that show the location of the nest in relation to 
buildings, infrastructure, and human activities;
    (4) The location of the property, including latitude and longitude;
    (5) The length of time for which the permit is requested, including 
beginning and ending dates;
    (6) A statement indicating the intended disposition of the nest(s), 
and if active, the nestlings or eggs;
    (7) A calculation of the bald eagle or golden eagle area nesting 
population, including an appropriately-scaled map or plat showing the 
location of each eagle nest used to calculate the area nesting 
population unless the Service has sufficient data to independently 
calculate the area nesting population. (Not applicable for immediate 
safety emergencies.)
    (8) A description of the avoidance, minimization, and mitigation 
measures the applicant proposes to reduce take and offset the 
detrimental impact of the permitted activity. (Not applicable for 
immediate safety emergencies.)
    Even though the application form does not require applicants to 
describe proposed mitigation measures in cases of safety emergencies, 
we may require compensatory mitigation as a permit condition if 
appropriate to offset the detrimental impacts to eagles.

New and Modified Definitions Under 50 CFR 22.3

    These regulations revise three definitions and codify 13 new terms 
in Sec.  22.3, the section of eagle permit regulations that defines 
terms and is applicable to all eagle permit regulations in part 22. We 
amend the regulatory definition of ``take,'' to add the term 
``destroy,'' to apply to bald eagle nests, to ensure consistency with 
the Eagle Act's intention to prohibit unpermitted eagle nest 
destruction. We define ``eagle nest'' as a ``readily identifiable 
structure built, maintained, or used by bald eagles or golden eagles 
for breeding purposes.'' This definition is based on, and replaces, the 
existing ``golden eagle nest'' definition, in order to apply with 
respect to both species. We are removing the existing definition of 
``golden eagle nest'' from the list of definitions.
    Similarly, this rule replaces the old definition ``inactive nest'' 
with a new definition that differs primarily insofar as it includes 
bald eagles as well as golden eagles. The new definition reads: ``a 
bald eagle or golden eagle nest that is not currently being used by 
eagles as determined by the continuing absence of any adult, egg, or 
dependent young at the nest for at least 10 consecutive days 
immediately prior to, and including, at present. An inactive nest may 
become active again and remains protected under the Eagle Act.'' All 
nests are protected by the Eagle Act, whether active or inactive, and 
the take of any nest requires a permit. The reason for distinguishing 
between active nests and inactive nests and for defining the term 
``inactive nest'' is because the new nest-take-permit regulation, as 
well as existing regulations for take of golden eagle nests for 
resource development and recovery operations (50 CFR 22.25), regulate 
nests differently depending on whether they are currently active or 
inactive. Under existing Sec.  22.25, a permit may be issued only for 
inactive nests. Under the regulations being finalized by this 
rulemaking, a permit can be issued for an active nest only if the 
location of the nest poses an immediate threat to safety. This 
definition is intended to be applied only to questions of whether or 
not a nest may be taken with reduced risk of associated take of birds. 
It is not intended to convey any other biological status, nor will it 
be the only criterion for permit evaluation.
    We are codifying the term ``important eagle-use area'' in these 
permit regulations under Sec.  22.26 to refer to nests, biologically 
important foraging areas, and communal roosts where eagles are 
potentially likely to be taken as the result of interference with 
breeding, feeding, or sheltering behaviors. We define ``important 
eagle-use area'' as ``an eagle nest, foraging area, or communal roost 
site that eagles rely on for breeding, sheltering, or feeding, and the 
landscape features surrounding such nest, foraging area, or roost site 
that are essential for the continued viability of the site for 
breeding, feeding, or sheltering eagles.'' This term refers to the 
particular areas, within a broader area where human activity occurs, 
where eagles are more likely to be taken (e.g., disturbed) by the 
activity because of the higher probability of interference with 
breeding, feeding, or sheltering behaviors at those areas.
    To clarify terms used within the definition of ``important eagle-
use area,'' we define ``foraging area'' to mean ``an area where eagles 
regularly feed during one or more seasons.'' We define ``communal roost 
site'' as ``an area where eagles gather repeatedly in the course of a 
season and shelter overnight and sometimes during the day in the event 
of inclement weather.'' Not all foraging areas and communal roost sites 
are important enough such that interfering with eagles at the site will 
cause disturbance (resulting in injury or nest abandonment). Whether 
eagles rely on a particular foraging area or communal roost site to 
that degree will depend on a variety of circumstances--most obviously, 
the availability of alternate, suitable sites for feeding or 
sheltering.
    ``Territory'' is defined as ``a defended area that contains, or 
historically contained, one or more nests within the home range of a 
mated pair of eagles.'' ``Cumulative effects'' means ``the incremental 
environmental impact or effect of the proposed action, together with 
impacts of past, present, and reasonably foreseeable future actions.'' 
We define ``indirect effects'' as ``effects for which a proposed action 
is a cause, and which may occur later in time and/or be physically 
manifested beyond the initial impacts of the action, but are still 
reasonably likely to occur.''
    The regulations include the requirement that an applicant have 
avoided and minimized impacts to eagles to the maximum extent 
practicable. ``Practicable'' is defined as ``capable of being done 
after taking into consideration, relative to the magnitude of the 
impacts to eagles (1) the cost of remedy comparative with proponent 
resources; (2) existing technology; and (3) logistics in light of 
overall project purposes.'' For programmatic permits, the comparable 
standard is ``maximum degree achievable,'' defined as ``the standard at 
which any take that occurs is unavoidable despite implementation of 
Advanced Conservation Practices.''

[[Page 46847]]

    ``Necessary to ensure public health and safety'' is one criterion 
for obtaining a nest removal permit, and it is a criterion for 
prioritization in the regulations for both new permit types if demand 
exceeds take thresholds. We define it as ``required to maintain 
society's well-being in matters of health and safety.'' ``Safety 
emergency'' means ``a situation that necessitates immediate action to 
alleviate a threat of bodily harm to humans or eagles.'' Safety 
emergencies take precedence over take that is merely necessary to 
ensure public health and safety (as does take necessary for Native 
American religious use and renewal of programmatic permits). We may 
issue a permit to remove an active eagle nest in a safety emergency, 
but not for any other purpose.
    We are defining ``programmatic take'' as ``take that (1) is 
recurring, but not caused by indirect effects (2) occurs over the long 
term and/or in a location or locations that cannot be specifically 
identified.'' We define ``programmatic permit'' as ``a permit that 
authorizes programmatic take.'' A programmatic permit can cover other 
take in addition to programmatic take. We can issue programmatic 
permits for disturbance and as well as take resulting in mortalities, 
based on implementation of ``advanced conservation practices'' 
developed in coordination with the Service. ``Advanced Conservation 
Practices'' means ``scientifically-supportable measures that are 
approved by the Service and represent the best-available techniques to 
reduce eagle disturbance and ongoing mortalities to a level where 
remaining take is unavoidable.''
    Since Sec.  22.26 does not apply to nests or non-living eagle 
parts, with regard to that section, we define ``eagle'' to mean only 
live eagles or eggs. This definition does not apply within any 
regulations other than Sec.  22.26.

Revisions to Permit Regulations at 50 CFR 22.28

    On May 20, 2008, the Service published regulations creating a new 
permit category at 50 CFR Sec.  22.28 to provide expedited Eagle Act 
permits to entities authorized to take bald eagles through ESA section 
7 incidental take statements (73 FR 29075, May 20, 2008). That new 
permit category applies to past section 7 take statements as well as 
any that may have been issued after the rule took effect. (e.g., for 
take of Sonoran Desert nesting bald eagles, or if bald eagles or golden 
eagles were ESA-listed in any other portion of their respective 
ranges). Now that a permit is available to authorize eagle take not 
associated with an ESA take authorization, for purposes of 
accountability and consistency, the same process and procedures should 
be used to authorize take under the Eagle Act regardless of whether it 
was also exempted under ESA section 7. Accordingly, as part of the 
regulations we are promulgating today, we are amending the regulations 
at Sec.  22.28 to restrict their application to section 7 incidental 
take statements issued prior to the date today's rule becomes 
effective. For any incidental take exempted under ESA section 7 that is 
authorized after the date specified in DATES and that also constitutes 
take under the Eagle Act, the only permit that is available to provide 
Eagle Act take authorization is the Sec.  22.26 permit being finalized 
herein. Therefore, except for take authorized through ESA section 10 
permits (which confer authority to take under both the ESA and the 
Eagle Act under the new provision at 50 CFR Sec.  22.11), any take we 
authorize that is associated with, but not the purpose of an activity, 
would be provided under the single regulatory authority we are 
finalizing today, 50 CFR Sec.  22.26, rather than 50 CFR Sec.  22.28.

Revisions to Information Collection Requirements at 50 CFR 22.4

    This section describes the requirement that Federal information 
collections, such as permit applications and report forms related to 
Federal permits, be reviewed and approved by the OMB. It also provides 
the approval number(s) (OMB Control Numbers) for the forms used to 
collect information related to eagle permits. We are removing the 
language describing the average reporting burden for all the 
collections related to eagle permits because that figure varies as new 
forms are added or removed and we are no longer required to provide 
this estimate.

Revisions to General Permit Conditions at 50 CFR 13

    As part of establishing the new permit authorizations under 50 CFR 
22.26 and 22.27, we amend 50 CFR 13.12 to add the new permit types to 
be issued under 50 CFR 22.26 and 22.27. We also amend 50 CFR 13.11(d), 
the nonstandard fee schedule, to establish application-processing fees 
(user fees) for the permits. The general statutory authority to charge 
fees for processing applications for permits and certificates is found 
in 31 U.S.C. 9701, which states that services provided by Federal 
agencies are to be ``self-sustaining to the extent possible.'' Federal 
user-fee policy, as stated in OMB Circular No. A-25, requires Federal 
agencies to recoup the costs of ``special services'' that provide 
benefits to identifiable recipients. Permits are special services 
authorizing identifiable recipients to engage in activities not 
otherwise authorized for the general public.
    For the standard Sec.  22.26 take permit and the Sec.  22.27 nest 
take permit, we will assess a $500 permit application fee and a $150 
permit amendment fee. For programmatic permits under either permit 
type, the application fee is $1,000 and the amendment fee is $500. 
While higher than many other Service permit application processing 
fees, these fees are comparable to those assessed for other migratory 
bird permits relative to the level of review necessary to process and 
evaluate an application for a permit to take eagles or to remove eagle 
nests under the authorities of the Eagle Act. \2\ Furthermore, we 
expect these fees to make up less than half the permit-processing costs 
to the Service.
---------------------------------------------------------------------------

    \2\ The notable exception is the permit-application-processing 
fee for take of golden eagle nests for resource recovery and 
development operations under 50 CFR 22.25, which is currently set at 
$100. We intend to propose a regulation in the near future to raise 
the processing fee to a level commensurate with the processing fees 
for the new Sec.  22.27 nest take permit.
---------------------------------------------------------------------------

    The typical permit-application process will be less burdensome for 
the applicant than the permit process under the ESA, since an HCP is 
not required. Preparing an HCP can be time-consuming and is usually 
delegated to a professional consultant. HCPs often cover large 
geographic areas--some larger than a million acres--and set forth terms 
and mitigation measures designed to protect species for up to 100 
years. In contrast, the information required to apply for an individual 
Eagle Act permit does not include an extensive habitat analysis, is 
easier to compile, and will require less information, since permits 
will be valid for no more than five years.
    Service biologists at GS-11 to 13 grade levels on the Office of 
Personnel Management General Pay Schedule, with support of GS-7 staff, 
would be responsible for pre-application technical assistance; 
reviewing and determining the adequacy of the information provided by 
an applicant; conducting any internal research necessary to verify 
information in the application or evaluate the biological impact of the 
proposed activity; assessing the biological impact of the proposed 
activity on the bald or golden eagle; evaluating whether the proposed 
activity meets the issuance criteria; preparing or reviewing NEPA 
documentation; determining consistency with other laws such as the

[[Page 46848]]

section 106 of the NHPA; coordination and consultation with States and 
tribes; and preparing either a permit or a denial letter for the 
applicant. To evaluate the impact of the proposed activity, Service 
biologists may also need to visit the location to examine site-specific 
conditions.
    Programmatic permits will take considerably longer to craft and 
process. We expect most industry-wide or agency-wide standard practices 
for programmatic permits would be developed with the respective 
entities and Service staff who work on policy development in the 
Washington Office, in coordination with Service Regions. We anticipate 
that some programmatic permits, particularly early ones will require 
the Service to convene and lead meetings of workgroups representing the 
entities seeking permits. The workgroups would develop metrics for 
establishing/quantifying baseline effects through estimates or a 
sampling scheme; identify the best-available techniques and mutually-
approved standard practices for minimizing the likelihood of take of 
eagles; and develop standards for system or program risk analyses, 
guidance for determining reasonable timeframes for completion of any 
required retro-fitting, standards and guidelines for effective 
monitoring programs and reports of eagle take to the Service, and 
measurable criteria for evaluating the implementation and efficacy of 
practices. Over the long term, we estimate it will take about 100 
Service staff hours to process the average programmatic take permit. 
The programmatic permits we develop initially will likely take longer, 
as will large-scale and more complex programmatic permits. Those may 
take up to 400 Service staff hours to prepare.
    We estimate it will cost the Service approximately $1,750 to 
process the average Sec.  22.26 permit application, including $940 for 
pre-application technical assistance from Field Office biologists, and 
$810 for the Regional Migratory Bird Permit Office once it receives the 
application. For Sec.  22.27 permits, we estimate the cost to the 
Service to be $1,950. We estimate it will cost the Service about $650 
to amend the average permit. The average programmatic permit 
application under either Sec.  22.26 or Sec.  22.27 is likely to cost 
the Service $5,000. We estimate the average cost to the Service for 
substantive amendments to programmatic permits to be $1,500. These 
estimates include technical assistance provided by the Field Office, as 
do the hourly estimates below.
    On average, we estimate that it will take Service employees 
approximately 42 hours to process each individual Sec.  22.26 permit 
application, approximately 46 hours for each Sec.  22.27 permit 
application for take of an eagle nest, and approximately 120 hours for 
a programmatic permit under either permit type. Therefore, an 
application fee of $500 will offset only about 28% of the cost to the 
Government of responding to a request for a Sec.  22.26 and about 25% 
of the cost of processing a Sec.  22.27 nest-take-permit application. 
The $150 standard amendment fee will make up about 27% of the Service's 
costs. The $1,000 programmatic permit application fee will recoup about 
20% of the permit processing cost to the Service. The $500 
programmatic-permit amendment fee will recoup about 33% of the cost to 
the Service. Although these fees are not high enough to allow the 
Service to recoup even half the cost of issuing them, they are 
significantly higher than other permit application processing fees we 
assess. The fees associated with these regulations must be manageable 
to small business owners, home owners, and other members of the public 
who may find a higher fee prohibitive.

Economic Analysis

    A brief assessment to clarify the costs and benefits associated 
with this rule follows:
    Change. This rule will provide for the authorization of activities 
that take bald eagles and golden eagles under the Bald and Golden Eagle 
Protection Act (Eagle Act). Under the rule, the public will have the 
opportunity to apply for permits to authorize the take of bald eagles 
and golden eagles under the Eagle Act. Some incidental take of eagles 
was previously authorized under the Endangered Species Act, primarily 
bald eagles covered by an incidental take statement issued pursuant to 
ESA section 7. Some bald eagle take was authorized under ESA section 10 
incidental-take permits. Twelve ESA section 10 permits authorized take 
of golden eagles as covered listed species. However, ESA take 
authorization for eagles has not been issued in Alaska, where neither 
species of eagles was ever listed under the ESA. Thus, any 
authorization for take in Alaska would be newly available. 
Authorizations for take of bald eagles and golden eagles are expected 
to increase from what was authorized under the ESA.
    Baseline. The costs and benefits will result from (1) the 
authorization of take of bald eagles and golden eagles throughout the 
United States under Sec.  22.26, and (2) the number of permits for take 
of bald eagle and golden eagle nests throughout the United States under 
Sec.  22.27.
    Costs Incurred. In general, the costs incurred due to the rule 
would relate to the costs of assembling the necessary information for 
the permit application, permit fees, and the costs of monitoring and 
reporting requirements associated with the permit. As explained below, 
it is difficult to predict the number of applications the Service 
should anticipate under these regulations. However, due to various 
factors, we expect that demand for eagle-take permits will increase, 
from about 54 authorizations per year under the ESA to approximately 
910 permits per year under the two new Eagle Act permit regulations. 
Therefore, using the current number of authorizations issued under the 
ESA as a baseline, approximately 856 permit authorizations would be 
new.
    Some of these entities (those that are non-governmental) would bear 
the higher permit application fees under the Eagle Act as compared to 
the current fee for an ESA incidental-take permit (to capture a more 
equitable share of the costs to the Service that would otherwise be 
borne by taxpayers), although many applicants will be State, local, 
tribal, or Federal agencies, which are exempt from application 
processing fees for Service permits. Costs for other aspects of the 
permit-application process will generally be lower than costs 
associated with the ESA section 10 permit application process (e.g., 
less information needs to be compiled and provided to the Service as 
part of this permit application versus the requirement to create a 
Habitat Conservation Plan (HCP) under the ESA).
    We are establishing a $500 permit application processing fee for 
the standard Sec.  22.26 take permit and standard Sec.  22.27 nest-take 
permit. Each of these permit categories will require a $150 fee for 
permit amendments. Programmatic permits under both regulations require 
a $1,000 processing fee and a $500 amendment fee. We anticipate 
receiving about 1,120 take permit applications under Sec.  22.26 
nationwide annually, and 20 applications for programmatic permits under 
Sec.  22.26. We estimate receiving 70 nest-take-permit applications 
under Sec.  22.27 and 20 applications for programmatic nest-take 
permits. (We anticipate that we will issue permits in response to the 
majority of these applications, particularly the programmatic permit 
applications, because applicants will already have coordinated with the 
Service before applying for a permit, and many project proponents will 
have either adjusted their projects so as not to need a permit

[[Page 46849]]

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

[[Page 46850]]

rule. We expect that economic benefits may accrue as a result of the 
implementation of this rule for oil and gas development operations, 
farming and ranching operations, mining companies, utilities, the 
transportation sector, and private land owners.
    Overall, we anticipate issuing approximately 910 take permits per 
year, under both regulations. We have completed a final environmental 
assessment (FEA) of the effects of this rulemaking, which is available 
on our website at http://www.fws.gov/migratorybirds/baldeagle.htm). 
Under the FEA, we developed take thresholds that will guide permit 
issuance to ensure that take is compatible with the preservation of the 
bald eagle and the golden eagle. As a result, we anticipate that the 
amount of take that will be requested and authorized under this permit 
regulation will not significantly affect bald or golden eagle 
populations.

Response to Public Comments

    Unless otherwise noted, each subject heading includes all 
substantive comments we received on both the June 5, 2007, proposed 
rule and the proposed revisions to the rule noted in our August 14, 
2008, notice re-opening of the comment period on the rule and 
announcing the availability of the DEA. We are responding to the 
comments concerning the environmental analysis, population modeling, 
take thresholds, and other aspects of the DEA in the FEA. Copies of the 
FEA are available at http://www.fws.gov/migratorybirds/baldeagle.htm.)

Populations and Take Thresholds.

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

[[Page 46851]]

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

``Other interests in a particular locality''

    Comment: The Service states that the Eagle Act's authority for 
granting the proposed permits stems from the Act's provision that the 
Secretary of the Interior may issue permits ``for the protection of 
wildlife or of agricultural or other interests in a particular 
locality.'' The final rule must define ``other interests.'' Without 
doing so, the rule is an overbroad interpretation of the Eagle Act 
because it ignores the fact that ``other interests'' is associated with 
``wildlife'' and ``agricultural'' interests, and does not comport with 
the remainder of the statute's provisions restricting the purposes for 
which take can be authorized.
    The proposal is not consistent with the Eagle Act because it would 
authorize take for any purpose or activity, whereas the statute clearly 
intended to limit the purposes for which take could be authorized. 
Furthermore, the proposal fails to show what ``other interests'' have 
been jeopardized by the long-standing legal prohibition on taking 
eagles. At the very least, the Service needs to delineate what ``other 
interests'' will qualify for the permit. The proposal's over-broad 
interpretation

[[Page 46852]]

of ``other interests,'' would allow permits for a vastly broader range 
of purposes than is currently authorized under the MBTA, which is 
nonsensical, since the Eagle Act clearly restricts take to certain 
purposes, whereas the MBTA can authorize take wherever it is consistent 
with the treaties.
    Service response: We read Congress's inclusion of the phrase ``or 
other interests in any particular locality'' as intended to ensure that 
other interests besides wildlife and agricultural claims would be able 
to seek remedy through a permit issued pursuant to regulations. In 
drafting the statute as it did, Congress gave the Secretary broad 
discretion to determine what types of other interests might be 
jeopardized by the broad protections afforded to eagles. When the 
statutory language was developed, the perception that eagles were a 
significant threat to livestock was widespread. Today, the American 
economy is comprised of numerous additional ``interests'' that have 
largely supplanted ranching in many areas of the country. These ``other 
interests'' provide jobs and support our infrastructure and quality of 
life, and by so doing merit similar protection as agriculture and 
livestock. Therefore these regulations provide a means to authorize 
eagle take to protect ``other'' interests such as transportation needs, 
electric utility maintenance, residential and commercial development, 
forestry, resource development and recovery, and other public and 
private interests.
    Comment: In contrast to the restrictive process for authorizations 
for Native American religious use, the Service here proposes a sweeping 
process for allowing a broad spectrum of public and private interests 
to take eagles where their locations stand in the way of development 
and utility interests. The disparate treatment between these approaches 
must be reconciled.
    Service response: The process by which we issue permits to Native 
Americans for take of eagles from the wild and permits for possession 
of eagle parts and feathers from the National Eagle Repository are the 
least restrictive means of doing so while protecting other compelling 
interests. Unlike under the permit regulations we are finalizing 
through this rulemaking, we do not require any mitigation or other 
conservation measures to offset the impacts of Native American 
religious take permits.
    Furthermore, the effect of issuing permits under this proposed 
regulation will not impinge on Native Americans' access to eagles for 
religious/ceremonial use. This regulation includes provisions to ensure 
that, if overall demand for authorizations to take eagles approaches 
what would be compatible with the preservation of the bald eagle or the 
golden eagle, requests related to Native American religious/ceremonial 
use will be authorized before other requests for take.

Scope and Criteria of Sec.  22.26

    Comment: The proposed rule states that a permit may be issued when 
several criteria are met including where ``the take cannot practicably 
be avoided.'' The use of a ``practicable avoidance'' standard is 
inconsistent with the Eagle Act because it elevates cost and overall 
project concerns over protecting bald eagles. The Eagle Act provides 
that take should be authorized only where it is necessary to protect a 
legitimate interest, not merely a facilitating factor. The applicant 
should have to affirmatively demonstrate that, in the absence of the 
permit, the legitimate interest cannot be met, and the applicant must 
not be allowed to define the goals in an overly narrow manner.
    Service response: We agree with the commenter that the goal for 
which the take is necessary must not be defined too narrowly by the 
applicant. For example, if a municipality is installing a bike trail 
with the goal to create a trail with an unbroken view of the river, it 
may be more difficult to avoid disturbing eagles along the river, than 
were the goal less narrowly defined--for example, to create a bike path 
that loosely parallels the river. Where possible, interests should be 
defined broadly enough to allow plans to be reasonably modified if 
necessary to protect bald eagles or golden eagles.
    We do not agree that the practicable avoidance standard elevates 
the interest of the project proponent over eagles because whether the 
impact can practicably be avoided is only one of the factors we will 
weigh before issuing a permit, and it is secondary to whether the take 
will be compatible with the preservation of the bald eagle or the 
golden eagle. Nevertheless, to address this concern, when we re-opened 
the comment period on the regulation in August 2008, we modified the 
proposed definition of ``practicable'' to incorporate the need to 
consider the feasibility of the action relative to the scope of the 
impact on eagles. The final definition of ``practicable'' reads: 
``capable of being done after taking into consideration, relative to 
the magnitude of the impacts to eagles (1) the cost of remedy 
comparative with proponent resources; (2) existing technology; and (3) 
logistics in light of overall project purposes.''
    Comment: The applicant should not have to show that the take cannot 
practicably be avoided or that he has minimized impacts to the extent 
practicable. The language is similar to that used under the Clean Water 
Act section 404 wetlands permit program, which raises the concern that 
the Service will require applicants to conduct a detailed alternatives 
analysis test, including consideration of project purpose and 
alternative project sites. The Service should identify the authority 
under the Eagle Act for requiring that impacts be minimized to the 
extent practicable.
    Service response: The Eagle Act stipulates that permits may be 
issued where the take is necessary to protect ... other interests in 
any particular locality (italics added for emphasis). Some could argue 
that, to be necessary, a thing is absolutely required and cannot be 
omitted or avoided. We believe a less strict interpretation is 
reasonable and justified to ensure that human activity is not overly 
restricted, and so interpret ``necessary'' as something that cannot 
practicably be avoided. In short, we view the practicability standard 
as less burdensome than other reasonable interpretations of the 
statute's purpose and intent, and therefore appropriate to adopt for 
purposes of this rulemaking.
    Comment: Take authorized by these permits should be limited to 
activities that benefit the public welfare.
    Service response: The Eagle Act does not limit take to activities 
that benefit the public as opposed to private interests. The statute 
specifically provides that take can be authorized to protect 
agriculture, which in this case primarily meant privately-owned 
livestock.
    Comment: The Service should model the regulation on the U.S. Army 
Corps of Engineers' requirements for avoidance, minimization, and 
mitigation of unavoidable impacts, and these should be clearly set 
forth in the regulation.
    Service response: While it was not our goal to model this proposed 
rule on Corps' regulations, the Service's official mitigation policy as 
set forth in the U.S. Fish and Wildlife Service Manual (501 FW 2) and 
reflected in this rule, is based on a similar tiered approach to 
reducing the overall impact of activities, beginning with avoidance and 
minimization, and requiring compensatory mitigation for large-scale 
activities with greater impacts.
    Comment: Permits for take that results in mortality should be 
issued only for human health and safety.
    Service response: Our goal and responsibility under the Eagle Act 
is to

[[Page 46853]]

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

Prioritization Criteria

    Comment: There needs to be a system of prioritization. Otherwise, 
the demand will threaten to reverse population recovery.
    Service response: Recognizing the possibility that demand could 
exceed what would be compatible with the preservation of the bald or 
golden eagle in certain regions, we established regional take 
thresholds and will not issue permits in excess of those limits. We 
agree with the commenter that a system of prioritization is needed in 
case demand runs up against the thresholds, particularly in light of 
other types of eagle take permits we issue. Therefore, in the event 
demand exceeds take thresholds, the regulations include issuance 
criteria to ensure eagle take permits are issued according to following 
prioritization order:
    1. Safety emergencies (Sec.  22.23 and new Sec. Sec.  22.26 and 
22.27);
    2. Native American religious use for rites and ceremonies that 
require eagles be taken from the wild (Sec.  22.22);
    3. Renewal of programmatic permits (Sec. Sec.  22.26 and 22.27, and 
possibly other sections);
    4. Non-emergency activities necessary to ensure public health and 
safety (Sec.  22.23 and new Sec. Sec.  22.26 and 22.27);
    5. (For golden eagle nests only) resource development and recovery 
operations (Sec.  22.25);
    6. Other interests (Sec. Sec.  22.21, 22.22, 22.23, and new Sec.  
22.26).

[[Page 46854]]

    Comment: The Service should give priority to projects that are in 
the public interest.
    Service response: If demand exceeds take thresholds that would be 
compatible with the preservation of the bald eagle or the golden eagle, 
we will prioritize Native American religious and cultural use and 
activities that serve the public interest over those that would largely 
benefit private or commercial interests.
    Comment: Will the criteria giving Native Americans preference for 
eagle take mean that they will get depredating golden eagles instead of 
falconers?
    Service response: Yes; although this rulemaking is separate from 
the regulations governing take of depredating eagles, the same 
principals that underlie the prioritization criteria in this regulation 
would apply to take of depredating golden eagles. Thus, if both a tribe 
(for religious purposes) and falconer request possession of such an 
eagle, we will give priority to the tribe.
    Comment: The provisions giving first priority to tribes should 
require them to take from areas with the highest thresholds (if 
location not dictated by their religion).
    Service response: If demand is greater than take thresholds in a 
given region, and a tribe requesting take can practicably take an eagle 
in another region that has take thresholds that are higher than demand 
while meeting the religious needs of the tribe, we may require the 
tribe to take the eagle in that other region.
    Comment: The prioritization criteria and allocation process could 
affect the ability of the U.S. Department of Agriculture's Wildlife 
Services' program to manage depredating golden eagles.
    Service response: The prioritization criteria could affect Wildlife 
Services' management of depredating golden eagles in rare cases. Where 
feasible and in accordance with tribal religious needs, if requests for 
take exceed take thresholds, we will direct tribes to take depredating 
eagles that would otherwise be taken by Wildlife Services or falconers.

Relationship to the National Bald Eagle Management Guidelines

    Comment: The rule is unclear as to whether a permit is required for 
take that results from activities conducted in accordance with the 
Guidelines and other best management plans. The final rule should 
explicitly state that compliance with the Guidelines amounts to a de 
facto permit, or at least creates a presumption of compliance with the 
Eagle Act. The new bald eagle management scheme in Florida clearly 
states that no permit will be required for activities that conform to 
the Guidelines. The Service should do the same.
    Service response: The State of Florida's new bald eagle management 
scheme is based on Florida law and does not require a permit to take 
bald eagles. Our regulations are authorized by the Eagle Act, which 
specifically requires a permit to take bald eagles. Therefore, we 
cannot do as Florida has done, that is: promulgate regulations that 
authorize some take without a permit. We believe take is generally 
unlikely to occur when our Guidelines are used to conduct of activities 
near eagles. Therefore, most activities that clearly conform to the 
recommendations provided by the Guidelines would not necessitate a 
permit. However, adherence to the Guidelines is not always as 
straightforward as simply keeping the project footprint 330 or 660 feet 
from an eagle nest, based on a category of activities. The Guidelines 
are guidance, and do not dictate what effects will actually happen to 
eagles from any particular activity. Many activities entail a variety 
of impacts, sometimes to eagles in more than one location, sometimes as 
the result of subsequent, foreseeable effects. Accordingly, to avoid 
take of eagles, more than the immediate project footprint should be 
considered. Also, some activities will not fit neatly into the 
categories provided in the Guidelines, and sometimes special 
circumstances may be present that make take more or less likely to 
occur. Examples of such circumstances include unusually open 
topography, acoustic anomalies, scarcity of alternative resources in a 
particular vicinity, and so forth. In summary, ``adherence to the 
Guidelines,'' is not a simple formula that will uniformly predict 
whether take will occur.
    Comment: The Service should consider ways to allow for minor 
exceptions to the Guidelines without requiring a permit.
    Service response: See our response to the preceding comment. We do 
not prohibit or authorize exceptions to the Guidelines. All we can 
prohibit or authorize are certain impacts to eagles. Anyone may choose 
to ignore the Guidelines, and that choice requires no authorization 
from us. However, if an eagle is disturbed or otherwise taken without a 
permit, it will be a violation of the Eagle Act.
    Comment: The Service should make permits available for activities 
that conform to the Guidelines. At the very least, the Service should 
issue ``No-take'' letters to give landowners written protection from 
take liability for activities consistent with the Guidelines.
    Service response: Due to the limited staff and resources of our 
agency, we want to discourage applications for permits to cover take of 
eagles that is in fact unlikely to occur. We believe our conservation 
mission is better served by helping the public reduce the likelihood of 
take by providing permits in appropriate circumstances where take is 
likely (and cannot practicably be avoided). If, after an application is 
submitted, the Service determines that take is not likely to occur, we 
may issue the permit (if permit issuance criteria are met); however, if 
we do not consider take likely to occur, we will not subtract the 
authorized take from Regional take thresholds--unless follow-up 
monitoring reveals that it did actually occur.
    Comment: The Service should use the various guidelines that have 
been developed for specific States or regions when evaluating take.
    Service response: The guidelines developed by different States and 
regions largely predate the Federal regulatory definition of 
``disturb.'' To the degree that ``disturb'' has been interpreted 
relatively consistently by the different State and Federal agencies 
that developed the various guidance, those documents were useful to us 
when we developed our National Bald Eagle Management Guidelines. 
Because the Guidelines are designed to prevent an impact (disturbance) 
that is a Federal prohibition, we believe that a single set of 
recommendations for avoiding a violation of that prohibition should be 
applied throughout the United States. This in no way precludes States 
from enforcing their own statutory and regulatory protections for 
eagles, and applying their own guidance for minimizing State-prohibited 
impacts to eagles.

Mitigation

    Comment: The proposed rule was unclear as to whether mitigation 
will be required for every permit issued, and also as to the range and 
types of mitigation that will be used.
    Service response: Mitigation includes: avoidance, minimization, 
rectification, reduction over time, and compensation for negative 
impacts. Under these regulations, all permittees are required to avoid 
and minimize the potential for take to the degree practicable, and for 
programmatic permits, to the point where take is unavoidable.
    Depending on the scale of the take, and the particular 
circumstances, the Service may require rectification and/or

[[Page 46855]]

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

[[Page 46856]]

    Service response: We now anticipate a larger workload than when we 
proposed the June 2007 rule, partially because of the demand from 
project proponents who re-design projects to avoid take. First, the 
process of providing them with the technical assistance needed to avoid 
the take may require significant staff resources from our Ecological 
Services biologists, and second because our Migratory Bird Permit 
Offices will still need to consider every permit application we receive 
and either deny or issue a permit. For this reason, we discourage 
permit applications from people who are not likely to take eagles. 
However, issuing permits to some of these applicants will provide a 
benefit: the permittees will be required to monitor the activity site 
and report how eagles react to the activity, providing us with valuable 
information on whether take that we believe is unlikely to occur does 
not in fact occur.
    Comment: Will compensatory mitigation be required for removal of 
nests that are of low biological value?
    Service response: We are unlikely to require compensatory 
mitigation for removal of nests that have very low biological value.

Permit Conditions

    Comment: The public should be given the opportunity to comment on 
each permit after public notice.
    Service response: While bald eagles were listed under the ESA, the 
public was provided an opportunity to comment before the Service issued 
each section 10 incidental take permit that authorized take of eagles. 
That process is a statutory requirement of the ESA (16 U.S.C. 
1539(a)(2)(B)). The Eagle Act has no such requirement. While that does 
not preclude us from creating such a requirement under these 
regulations, we do not believe a public-comment period for each permit 
would provide an additional benefit to eagles that would justify the 
regulatory burden on the public and on our limited staff and resources.
    Comment: The permit must be specific as to how much take is 
authorized and how it will occur. Otherwise, the permit may 
inadvertently grant indemnity for all take, whether anticipated or not.
    Service response: Most permits will be specific as to how much take 
is authorized and how and roughly when it will occur. The exception 
will be programmatic permits, which will authorize take for large-scale 
and or long-term activities where take is anticipated but the exact 
amount, location, and timeframes are impossible to identify. Rather 
than ``grant indemnity for all take,'' programmatic permits will 
authorize only the take that occurs despite implementation of stringent 
ACPs designed to reduce take to the point where it is essentially 
unavoidable (yet anticipated). The overall effect of these types of 
permits will be a reduction in mortalities and other adverse impacts to 
eagles.
    Comment: Permits should not specify exact numbers of authorized 
take. Rather, levels of take should be identified regionally.
    Service response: Levels of take will be identified regionally in 
order to establish population thresholds up to which take can be 
authorized. However, each permit (except programmatic permits designed 
to reduce ongoing take) will authorize a specific amount of take to 
ensure that the cumulative take authorized under all the permits in a 
region does not exceed the regional population threshold.
    Comment: The time period for a permit should be identified. Permits 
should not exceed one year.
    Service Response: Each permit will have a limited tenure specified 
on the face of the permit. These final regulations limit the tenure for 
all permits to five years or less. Many projects are multi-year 
projects, and a 1-year tenure would introduce unnecessary uncertainty 
for a project proponent that cannot identify exactly when the take will 
occur. Receiving applications for the same take in consecutive years 
would also create more work for our permit offices without providing 
any benefit to eagles. That said, the rule limits permit tenure to five 
years or less because factors may change over a longer period of time 
such that a take authorized much earlier would later be incompatible 
with the preservation of the bald eagle or the golden eagle. 
Accordingly, we believe that five years is a long enough period within 
which a project proponent can identify when the proposed activity will 
result in take.
    Comment: The rule should provide for inspections at any hour with 
no notice from the Service.
    Service Response: The rule provides that the Service, or a 
designated agent, may inspect the area ``where eagles are likely to be 
affected, at any reasonable hour, and with reasonable notice from the 
Service, for purposes of monitoring eagles at the site(s).'' The 
purpose of the inspection is to determine whether eagles are using the 
site, not to surprise and scrutinize the permittee's activities.
    Comment: The final rule should contain provisions for review, 
denial, modification, and revocation. Of particular concern is the 
potential situation where populations decline unexpectedly, or new 
information reveals the take would not be compatible with the 
preservation of the bald or golden eagle.
    Service response: Provisions for review, denial, modification, and 
revocation, and other general processes and procedures that apply to 
all the types of permits the Service issues are found in 50 CFR part 
13. For that reason, we do not reiterate those provisions within each 
section of regulations that govern individual permit types. Regarding 
the scenario raised by this commenter, 50 CFR 13.28(a)(5) provides that 
a permit may be revoked if ``the populations of the wildlife or plant 
that is the subject of the permit declines to the extent that 
continuation of the permitted activity would be detrimental to 
maintenance or recovery of the affected population.''
    Comment: The rule should address unanticipated take by specifying 
that the permittee must contact the Service immediately and apply for a 
new permit.
    Service response: We have added language to the rule requiring the 
permittee to contact the Service if unanticipated take occurs. As to 
whether a new permit would be required, that will depend on the 
circumstances. Some situations may be more appropriately addressed by 
amending the existing permit or taking some other action.

Monitoring

    Comment: Monitoring should not be required of the permittee. It is 
the responsibility of the Service. A three-year monitoring period is 
overly burdensome and would not result in useful information. Public 
reporting is not accurate or timely. The Service should develop a 
research project to monitor eagles to obtain accurate information.
    Service response: The monitoring that will be required of the 
permittee is relatively minimal yet will serve several important 
purposes. The monitoring simply entails observing periodically, during 
the season(s) when eagles would normally be present, the area where the 
take is likely to occur and noting whether eagles continue to nest, 
roost, or forage there. Even this minimal monitoring will be important, 
however, because it will provide the Service with the best information 
available as to how human activities impact eagles. If we find that 
take does not occur as frequently as we anticipated, we can adjust the 
recommendations we provide in management guidelines and technical 
assistance. Also, if demand for take is

[[Page 46857]]

high enough to approach take thresholds, ascertaining that it did not 
occur under some permits could enable us to issue other permits where 
we otherwise would not. We know that reporting will not always be 
accurate, but even so, it is our best available option for garnering 
this data, since we do not have the staff and resources to monitor 
every site ourselves.
    Comment: The Service needs to provide methodology for monitoring. 
The Service should be more specific as to what information is required 
by ``information on eagle use of important eagle-use areas potentially 
affected.''
    Service Response: The monitoring requirements are relatively simple 
and require little in the way of methodology. The annual report form 
requires the permittee to submit the dates, times and numbers of eagle 
sightings at the important use areas where eagles are likely to be 
affected. Also, the report requires monitoring the site(s) periodically 
during the season that eagles normally breed, feed, or shelter in the 
area, at a time of day when eagles are most likely to be in the 
vicinity, if applicable (e.g., for communal roosts in the evening; for 
foraging areas, in the morning or afternoon).
    Comment: The rule should require that monitoring be conducted by 
professional raptor biologists. Permittees will not be able to 
ascertain whether eagles adopt alternative nest sites or how the 
permitted activity may have affected the dynamics of a communal roost 
or feeding area.
    Service response: We agree that more extensive monitoring would be 
very useful for purposes of understanding how eagles are affected by 
human activities. However, we expect that many permittees will not have 
the resources to hire professional biologists to perform that service. 
Our agency also does not have the resources to monitor all project 
sites. Therefore, the rule requires very minimal monitoring that the 
average person can easily perform. However, the rule also provides that 
the permittee must allow the Service or a designated representative to 
visit the area for purposes of monitoring eagle use. During those 
visits, we should be able to collect more extensive information 
regarding the dynamics of eagle behavior at the site. Although we do 
not have the capacity to carry out that function at the majority of 
permit sites, we can use the data we collect from the limited site 
visits to extrapolate eagle responses to permitted actions over a 
larger geographic scale.
    Comment: The post-delisting monitoring plan should be adequate for 
purposes of monitoring bald eagles.
    Service response: The PDMP is a national-level plan designed for an 
entirely different purpose than the monitoring that would be required 
under this permit regulation. The purpose of the PDMP is to detect 
declines in bald eagle populations that could trigger relisting. The 
purpose of the permittee's monitoring requirements in this rule is to 
ascertain whether permitted take actually occurs.
    Comment: Is a permittee (such as an electric utility) only required 
to implement post-activity monitoring for three years after the initial 
construction of the site or for ongoing unavoidable take? Will its 
monitoring plan need Service approval, and will the results need to be 
furnished to the Service?
    Service response: Monitoring is related to the activity that is 
likely to take eagles. If a project is likely to take eagles during an 
initial construction phase, but take is unlikely to occur during the 
subsequent, ongoing use of the facility, then monitoring may be 
required for up to three years after the construction is completed. If 
the ongoing activity is likely to take eagles, then the monitoring may 
be required for up to three years after cessation of the activity. For 
programmatic permits, the permitted industry may develop, in 
coordination with the Service, a specific, more extensive monitoring 
protocol, adherence to which would be a condition of the permit. 
Otherwise, as discussed above, monitoring for most permits is 
relatively straightforward and will not require any plan that needs 
approval from the Service. Monitoring results will need to be reported 
on an annual basis to the Service, for as long as monitoring is 
required.
    Comment: Monitoring and report data should be provided to the 
State, particularly when activities could affect nesting results during 
State surveys.
    Service response: We will make monitoring and report data available 
to States and tribes whenever requested (to the degree allowable by 
laws such as the Privacy Act). As with other data we collect, as well 
as data collected by the States and tribes, we support the sharing of 
information that pertains to joint interests between our governments.
    Comment: The proposal's reliance on permittee self-monitoring is 
misplaced and threatens the long-term preservation of eagles. A 
detailed plan for achieving compliance, consistency, and 
confidentiality is needed. The rule should require monitoring to be 
conducted by a disaffected third party approved by the Service. 
Permittees should pay into a fund for experienced, independent 
organizations to provide or verify data.
    Service response: We may include a requirement that monitoring be 
conducted by a third party as a permit condition for some larger 
projects and programmatic permits. However, although it might sometimes 
improve accuracy, we do not think it would be reasonable to require all 
permittees to enlist a third party to conduct the required monitoring. 
Also, we are not confident that enough disaffected third-party entities 
would be available to permittees in every location. We believe most 
permittees will try to provide accurate information. To increase the 
chances of that, we added language to the annual report form 
emphasizing that (1) filing an accurate report is a condition of the 
permit and (2) reporting the absence of eagles from the monitoring site 
will not, by itself, affect the continued validity of the permit.

Application and Issuance Process

    Comment: The proposed rule requires the permit applicant to provide 
a certification that the proposed activity is in compliance with local, 
State, and Federal laws. What is meant by ``certification''? Who is 
responsible for this evaluation?
    Service response: We meant that the application form would require 
the applicant to sign a statement that the proposed activity is in 
compliance with other applicable laws. However, we have revised the 
draft application form. It no longer requires that certification, but 
instead asks the applicant to state whether he or she has obtained the 
State or tribal authorizations necessary to conduct the activity. All 
of our migratory bird and eagle-related permits contain the standard 
condition that the Federal authorization is not valid unless the 
activity complies with all other applicable laws, including State and 
local laws. Permits issued under this regulation will include that 
condition and clarify that the activity must also be in accordance with 
any applicable tribal laws.
    Comment: Can a landowner apply for a permit for multiple takes in 
an entire area of ownership that is not contiguous?
    Service response: A landowner can apply for as many takes as he or 
she wants in different locations. However, each take we authorize will 
have to meet the permit-issuance criteria (e.g., it must be compatible 
with the preservation of the eagle, cannot be practicably avoided, 
etc.). Depending on the particular circumstances and in order to ensure 
that issuance criteria are met, we may authorize only a portion of the 
requested take (or all or none).

[[Page 46858]]

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

[[Page 46859]]

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

[[Page 46860]]

time, effort and resources than we have been able to supply for such an 
effort at this time. There is enormous variation in how States and 
tribes manage eagles. Some have no regulations that pertain to eagles 
specifically, some are habitat management plans, some are permit 
programs, but the prohibitions are not the same as Federal 
prohibitions, while others have similar or even stricter prohibitions 
but completely different issuance criteria for permitting. This high 
degree of variability may be difficult to capture in a single, user-
friendly compilation. More effective, at least for the short term, will 
be for each Service Regional Migratory Bird Office to familiarize 
themselves with the laws and regulations of States and tribes within 
their respective regions that apply to eagle management. We already 
operate in this manner when issuing other types of permits. For 
example, we will not issue a permit to possess a red-tailed hawk in 
Hawaii, because Hawaii regulations do not allow raptors within the 
State.
    Comment: The government should give the tribes notice of all 
pending and future applications for permits, particularly where eagles 
may be affected on or near tribal lands.
    Service response: As with States, some tribes will want closer 
coordination with us than others. We plan to work with each tribe that 
is interested to establish implementation protocols regarding the level 
of coordination desired by the tribe.
    Comment: The regulation needs to include stronger, more explicit 
language regarding the need to be compliant with tribal law.
    Service response: The requirement to be in compliance with other 
laws and regulations is a standard condition of all Service Migratory 
Bird permits and it is spelled out on the face of each permit. However, 
to ensure this condition is given sufficient weight, we have added the 
following new regulatory language to the permit conditions in both 
Sec.  22.26 and Sec.  22.27: ``The authorization granted by permits 
issued under this section is not valid unless you are in compliance 
with all applicable Federal, tribal, State, and local laws and 
regulations applicable to take of eagles.''
    Comment: The Service should issue programmatic permits to the 
Corps, other Federal agencies, and State agencies, allowing them to 
provide take authority subject to their own programs where they are 
consistent with the Eagle Act's requirements.
    Service response: Our ability to delegate permit authority to 
outside agencies is limited because the Eagle Act does not allow take 
of bald eagles unless a permit is procured from the Secretary of the 
Interior. However, within our statutory authority and to the degree 
that is compatible with the preservation of eagles, we intend to 
explore ways of streamlining the permit-issuance process, which might 
include issuing a ``Master permit'' to other agencies, allowing them to 
allocate take authorization where needed. One of many complicating 
factors is that requests for permits may exceed what would be 
compatible with eagle preservation in some areas, in which case the 
issuance criteria governing prioritization to certain interests (safety 
emergencies, Native American religious needs, and so forth) will come 
into play. If permits are ``re-distributed'' by a third party, the 
coordination needed to ensure the prioritization issuance criteria are 
met could be rather challenging.

Programmatic Permits

    Comment: The June 2007 proposed rule suggested that permits for 
lethal take would only be available if the take was unavoidable and 
best management practices (BMPs) are being implemented. The proposed 
definition of ``unavoidable'' is flawed because it relies on industry-
accepted measures for avoiding take, but in most circumstances, 
industry-accepted measures will not be all that can be done to avoid 
take. Are the BMPs limited to those developed specifically for the 
purpose of reducing eagle mortality? What would happen if different 
BMPs proscribe conflicting actions? Clarification is needed as to what 
constitutes lethal take; disturbance can sometimes result in eagle 
mortalities.
    Service response: Our reference to BMPs caused understandable 
confusion because it was interpreted to mean any type of industry-
accepted BMPs for the conduct of the activity, regardless of whether 
the BMPs were designed to reduce eagle mortalities or serve some 
entirely unrelated function (such as human safety and hygiene). Our 
intent was that the BMPs would have to be designed to reduce eagle 
mortalities and other take of eagles. We have revised this part of the 
rule. Rather than referencing BMPs, we are clarifying that we will work 
with industries to develop what we are calling ``Advanced Conservation 
Practices'' (ACPs), designed specifically to reduce take of eagles (and 
sometimes other migratory birds). Implementation of ACPs will qualify 
some entities for programmatic take permits, and can be used to 
authorize ongoing unavoidable disturbance as well as unavoidable 
mortalities. The ACPs will be developed by the applicant in 
coordination with the Service and will be scientifically-supportable 
measures representing the best-available techniques designed to reduce 
disturbance and ongoing mortalities to a level where remaining take is 
unavoidable.
    Comment: Will lethal take permits be issued for industries that 
have no such measures?
    Service response: These regulations allow us to authorize take that 
results in mortality as long as the issuance criteria for a standard 
permit under this section are met, but would not allow us to issue a 
permit for programmatic take without development and implementation of 
ACPs.
    Comment: Programmatic permits will increase mortalities by giving 
the perpetrators a ``free pass.''
    Service response: The design and intent of programmatic permits is 
exactly the opposite of what the commenter suggests. Programmatic 
permits will be issued and valid only where the applicant/permittee 
implements rigorous conservation measures to reduce take to the point 
where it is unavoidable.
    Comment: The regulation should be clear that development of 
programmatic permits will entail coordination with States where the 
activity will occur.
    Service response: We envision close coordination with States and 
tribes when developing programmatic permits. We will address such in 
forthcoming implementation guidance, which we intend to develop in 
coordination with States and tribes, as well as the general public, via 
a public comment period.
    Comment: The Service should codify programmatic permit conditions 
through the Federal Register process.
    Service response: Programmatic permits are designed to reduce 
mortalities and other take. In our view, a public comment period for 
each programmatic permit would not provide an additional benefit to 
eagles sufficient to justify the delay, regulatory burden, and the 
substantial additional resources from our agency needed to navigate the 
Federal Register process.
    Comment: Programmatic permits are not acceptable unless the Service 
retains the authority to decide what constitutes advanced conservation 
practices, required mitigation, and how much take is unavoidable.
    Service response: Although we will develop ACPs in coordination 
with applicant industries and other entities, the Service will make the 
final decision as to what measures constitute the ACPs that will serve 
as required conditions of programmatic permits.

[[Page 46861]]

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

[[Page 46862]]

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

Definitions

    Comment: Adding ``destroy'' to the ``take'' definition enlarges the 
statutory definition of ``take,'' but the Service has no authority to 
do so. The Service should say what the intended effect is of adding 
``destroy'' to the definition of ``take.''
    Service response: We have the authority to define ``take'' in a way 
that includes more than just the specific examples Congress included in 
the statutory definition. The Eagle Act, expressly states ``take 
includes also pursue, shoot, shoot at, poison, wound, kill, capture, 
trap, collect, molest or disturb.'' 16 U.S.C. 668c (emphasis added). If 
Congress had intended to restrict the definition to the terms included 
in the Act, it would have stated what take means, not what it also 
includes. The intended effect of adding ``destroy'' is to clarify the 
meaning of ``take'' in a way consistent with Congressional intent. 
Legislative history demonstrates that the Eagle Act was intended to 
protect nests from destruction, and we have previously

[[Page 46863]]

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

[[Page 46864]]

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

[[Page 46865]]

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

[[Page 46866]]

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

[[Page 46867]]

commenter mistakenly suggests. ``Essential cause'' was used under the 
withdrawn ESA section 7 regulations to clarify the definition of 
``indirect effects.'' For purposes of permitting under the Eagle Act, 
we define ``cumulative effects'' as ``the incremental environmental 
impact or effect of the proposed action, together with impacts of past, 
present, and reasonably foreseeable future actions.''

Other

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

[[Page 46868]]

they share with bald eagles under the Eagle Act.
    Comment: The economic analysis should not be limited to a pre- 
versus post-delisting assessment. Rather, the Service should consider 
the costs of the regulatory program in comparison to other recovered 
species.
    Service response: Comparing the costs of this permit program to the 
costs of making a similar permit available for other recovered species 
would yield little or no useful information because we have never 
before created a new permit regulation to authorize take of a recently-
delisted species. Even had we done so, we doubt the comparison would be 
very useful because, unlike any other species, bald eagles and golden 
eagles are protected by the Eagle Act, and it is the unique protections 
of that statute that fundamentally shape this regulation.
    Comment: The Service, by stating that it only rarely expects to 
issue permits for take associated with activities that conform to the 
guidelines, appears to have foreclosed the option to seek and gain 
assurance against prosecution under the Eagle Act through issuance of a 
permit.
    Service response: While we will continue to discourage applications 
for take we believe is unlikely to occur, preferring to put our 
agency's limited resources towards our mission of conserving wildlife, 
we anticipate issuing some of these permits. The monitoring and 
reporting that will be required of permittees will be of value, since 
it will provide documentation we rarely would otherwise obtain: whether 
the activities we thought would not disturb eagles do result in take. 
Normally, permittee monitoring will be for activities that are likely 
to take eagles. In addition, the Service may exercise enforcement 
discretion by not referring such take for prosecution under the MBTA or 
the Eagle Act if it occurs despite the low probability.
    Comment: Sensitive nest data maintained by States will be made 
public through the Freedom of Information Act (FOIA) process, 
jeopardizing the safety of the nest.
    Service response: Although we do not share this State commenter's 
concern that eagle nests will be less protected if their location is 
known, we respect the State's intentions, and to the degree we can 
under law, we will honor its wishes to safeguard State nest data. 
However, we cannot circumvent the requirements of the FOIA.
    Comment: The tenure of depredation permits for hazing eagles should 
not be increased because it could lead to abuse.
    Service response: In addition to amending the eagle-depredation-
permit regulations under Sec.  22.23 to extend potential permit tenure 
to up to five years, we included the following language: ``We may 
amend, suspend, or revoke permits issued for a period of longer than 90 
days if new information indicates that revised conditions, suspension, 
or revocation is necessary to safeguard local or regional eagle 
populations.''
    Comment: Penalties for violations should be dramatically increased 
and the compensation used to develop and implement management plans.
    Service response: The Service does not establish and cannot effect 
changes to penalties for violations of the Eagle Act and other statutes 
we enforce. Congress establishes the penalties.
    Comment: Due to the unique circumstances of Alaska, the Service 
should develop streamlined procedures for ensuring that infrastructure 
projects can comply with the Eagle Act.
    Service response: We intend to establish working groups with 
interested States and tribes to develop streamlined procedures to boost 
the efficacy of this permit program and enhance compliance with the 
Eagle Act.

Fees

    Comment: The permit-processing fees must be higher to comply with 
the Service's mandate that permit programs be ``self-sustaining to the 
extent possible'' as required by 31 U.S.C. 9701(a). The program will 
drain money that should be used for important conservation needs.
    Service response: The commenter is correct that the permit 
application processing fees associated with the new permits are not 
high enough to allow the Service to recoup even half the cost of 
issuing them. However, the fees are significantly higher than other 
permit application processing fees we assess. The fees associated with 
these regulations must be manageable to small business owners, home 
owners, and other members of the public who may find a higher fee 
prohibitive. We are establishing a higher application fee for 
programmatic permits: $1,000, with a $500 amendment processing fee.
    Comment: The proposed fees are too high, especially when 
encouraging landowners in conservation efforts. The Service should 
consider a designation of ``low-effect'' permits for which a lower 
permit-application-processing fee would be charged. Also, the Service 
should consider a lower fee for private landowners and small 
businesses.
    Service response: Permits are a ``service'' provided to specific 
individuals and individual corporations within the public at large. Our 
agency is directed by Congress and OMB to recoup the costs of permit 
programs where feasible. The lower the permit processing fees, the 
larger are the percentage of costs that must be shifted to taxpayers or 
diverted from other Service responsibilities. Therefore, we do not 
believe the $500 permit processing fee is unreasonable for applications 
for individual permits.
    While we are not adopting the commenter's suggestion that 
application fees be less for ``low-effect'' permits, we are 
establishing a higher fee for permits that will take longer to process; 
the application-processing-fee for programmatic permits is $1,000. 
While the typical programmatic permit will likely cost the Service more 
than twice as much as the typical individual-take permit, we believe 
the $1,000 application fee, rather than a higher fee more in line with 
our processing costs, is justified because programmatic permittees will 
be required to undertake rigorous and potentially costly conservation 
measures.
    Regarding the suggestion that fees be lower than $500 for private 
landowners and small businesses, if we did that, we would recoup an 
unacceptably small percentage of the costs of the permit program. 
Federal, State, tribal and local government agencies will likely 
constitute a large portion of applicants, but they are exempt from 
permit application fees. It is inappropriate to require the American 
taxpayer to bear all the costs of administering permits that primarily 
benefit private individuals. We believe that the fees associated with 
this rulemaking are a fair compromise between recouping all of our 
costs and ensuring that no one is disqualified because he or she cannot 
afford the permit application-processing fee.
    Comment: The Service should not charge fees for tribal religious 
purposes.
    Service response: We do not charge permit application processing 
fees for permits for tribal religious purposes. This regulation has no 
effect on our policy regarding such fees.

Permits for Take of Eagle Nests

    Comment: The final rule should clarify that a safety emergency 
means a threat to life, not a threat to property.
    Service response: The regulation includes the following definition 
of ``safety emergency'': ``a situation that necessitates immediate 
action to alleviate a threat of bodily harm to humans or eagles.'' 
However, the rule now provides that permits may be issued to remove 
inactive nests where

[[Page 46869]]

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

[[Page 46870]]

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

[[Page 46871]]

    Comment: Take of nests should not be allowed for anything other 
than a safety emergency.
    Service response: Limiting nest take to safety emergencies has the 
potential to create unacceptable gridlock across the United States. 
Many projects and activities that benefit society would be 
disqualified, resulting in untenable degradation of social services and 
infrastructure.
    Comment: The Service should not issue nest-take permits where the 
nest is the only structure in a territory or if its removal would 
interfere with future reproduction in that territory.
    Service response: Where the take is not necessary to alleviate a 
safety emergency, we will consider whether the nest is the only one in 
the territory. Unless a safety emergency necessitates the nest removal, 
before issuing a permit under Sec.  22.27, we must find that ``suitable 
nesting and foraging habitat is available to the area nesting 
population of eagles to accommodate any eagles displaced by the nest 
removal.''
    Comment: The Service should not issue a programmatic nest permit to 
the Federal Aviation Administration for nationwide airport coverage 
because, with no biologists, it will err on the side of human safety 
and remove nests that pose little threat.
    Service response: We do not anticipate issuing a single, 
nationally-applicable permit to the FAA. At this point, we envision 
issuing permits to individual airports and county or regional airport 
authorities.
    Comment: The Service's estimate of only 30 programmatic nest take 
permits per year is too low. That many would probably be needed in 
Alaska alone.
    Service response: We have increased our estimate of how many 
programmatic permits we will issue - but only by 10, to 40 permits, 
annually. Programmatic permits will be issued only where ACPs are 
implemented to reduce take to a level that is unavoidable. The process 
of developing most programmatic permits will be more time-consuming 
than for most individual permits, at least until we have developed 
``templates'' applicable to other permits for the same or similar 
activities. Thus, we think it unlikely we will be issuing more than 40 
such permits per year nationwide. The permits we are creating through 
this rulemaking are for take that is necessary, not take that is merely 
convenient or more profitable than avoiding the take.
    Comment: The rule should include a separate nest-take category for 
situations where eagles nest on a pre-existing man-made structure.
    Service response: We thought this idea had merit and added language 
to the final rule that provides for removal of nests that are built on 
human-engineered structures, creating ``a functional hazard that 
renders the structure inoperable for its intended use.''

Rulemaking Process

    Comment: Tribal consultation should have been sought prior to 
proposing this regulation. How can the government claim to have 
considered cultural values without proper government-to-government 
consultation with the tribes?
    Service response: We sent each federally-recognized tribe a letter 
soliciting input on this action when the proposed rule was published in 
the Federal Register. Even though the comment period was open for 90 
days, we received only three letters from tribes and no requests to 
extend the comment period. The Service sent a second letter to the 
tribes when the DEA was released, and several Service Regional offices 
have hosted or attended meetings in order to clarify the Service's 
actions and hear tribal concerns. However, due to the need to 
promulgate permit regulations in an expeditious manner, there was not 
enough time to fully engage any tribes in formal government-to-
government consultation during the rule-making period. We do intend to 
do so with interested tribes during the next phase: development of 
implementation guidance.
    As part of developing the implementation guidance, we intend to 
work with tribes to establish protocols regarding the types of permit 
applications and potential actions on which individual tribes would 
like the Service to consult with them. We will also consider cultural 
values, including Native American cultural values as part of the NHPA's 
section 106 review. (See our discussion in the Required Determinations 
section below under National Historic Preservation Act.)
    Comment: The comment period was too short for the public to provide 
meaningful input.
    Service response: The initial comment period for the rule was 90 
days, which is standard for a significant rule. We also re-opened the 
comment period on the rule for another 30 days when we released the DEA 
in August 2008. Therefore, the total length of time the rule was open 
for public comment (120 days) was longer than for most rules.
    Comment: States should have been given a greater role in developing 
the regulation, particularly since it will require investment of 
significant State resources. The Service should delay completion of the 
regulations and form a work group with the State fish and wildlife 
agencies to develop more administratively- and economically-feasible 
regulations.
    Service response: We did not delay completion of the regulations 
because there is a genuine, substantial, and impending public need for 
these permits. Without them, many activities, including critical 
infrastructure projects, that might disturb or otherwise take eagles 
have no means of gaining authorization for the take, and are either on 
hold or compelled to violate the law. Due to the need to promulgate the 
regulations without further delay, we were unable to coordinate closely 
with States and tribes during the rule-development phase. However, we 
plan to establish work groups with State and tribal representation to 
assist with development of implementation guidance for the regulations. 
The implementation guidance will address numerous important facets 
regarding administration of the permit program that have yet to be 
worked out, including how the Service will coordinate with States and 
tribes during the permit-application-and-processing phase.
    Comment: The Service should delay implementation until it gets an 
adequate monitoring program in place for both species throughout the 
U.S. If the Service will not delay completion or implementation of the 
regulations, they should be enacted on a short-term basis, allowing the 
Service to work cooperatively with the States to develop a more 
comprehensive, data-driven permitting system.
    Service response: If, after implementation, the regulations need 
revision, we can amend them. There is no need to finalize them with a 
built-in expiration clause. We agree that more data, monitoring, and 
surveys would be useful, and we plan to pursue possibilities for 
additional funding and partnerships to bolster the scientific data 
currently available for both eagle species.
    Comment: The Service should publish the proposed rule with the 
changes noted in the DEA. Without being able to review the explicit 
regulatory changes in context, the public cannot adequately evaluate 
the proposal.
    Service response: We believe the August 2008 Notice of Availability 
for the DEA and the DEA itself effectively described the changes that 
we were proposing from the rule we proposed in June 2007. Republishing 
a proposed rule incorporating the changes noted in the DEA would have 
triggered a number of

[[Page 46872]]

regulatory requirements that would have been onerous and--more 
important--time consuming. Due to the need to finalize the regulations 
expeditiously, we believe that the approach we took was in the best 
interests of the public.

Endangered Species Act Consideration

    Consultation pursuant to section 7(a)(2) of the Endangered Species 
Act is not required for these regulations. The regulations do not 
directly or indirectly authorize any activities that would result in 
adverse effects to listed species, so they will not affect any listed 
species or critical habitat. We will conduct section 7 consultations on 
the issuance of any future permits where the authorized activities may 
affect listed species or critical habitat.

Required Determinations

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

[[Page 46873]]

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

[[Page 46874]]

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

----------------------------------------------------------------------------------------------------------------
                                          ANNUAL NO. OF                                                 TOTAL
         ACTIVITY/REQUIREMENT           RESPONDENTS (non-    TOTAL  ANNUAL     COMPLETION  TIME PER     ANNUAL
                                             Federal)          RESPONSES             RESPONSE         BURDEN HRS
----------------------------------------------------------------------------------------------------------------
FWS Form 3-200-71 - permit application                746                746  16 hrs                      11,936
 (individual take)
----------------------------------------------------------------------------------------------------------------
FWS Form 3-202-15 - annual report &                 1,119              1,119  30 hrs                      33,570
 monitoring under Sec.  22.26
----------------------------------------------------------------------------------------------------------------
FWS Form 3-200-72 - permit application                 46                 46  16 hrs                         736
----------------------------------------------------------------------------------------------------------------
FWS Form 3-202-16 monitoring &                         40                 40  16 hrs                         640
 reporting for Sec.  22.27 permit
----------------------------------------------------------------------------------------------------------------
FWS Forms 3-200-71 and 72 - permit                     26                 26  40 hrs                       1,040
 application (programmatic take)
----------------------------------------------------------------------------------------------------------------
Amendments to standard permits                         40                 40  6 hrs                          240
----------------------------------------------------------------------------------------------------------------
Amendments to programmatic permits                     10                 10  20 hrs                         200
----------------------------------------------------------------------------------------------------------------
Totals                                              2,027              2,027                              48,362
----------------------------------------------------------------------------------------------------------------

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

[[Page 46875]]

records covered by the Privacy Act (5 U.S.C. 552(a)).
    We estimate receiving 1,120 permit applications for individual 
takes under Sec.  22.26; 70 applications for nest take permits under 
Sec.  22.27; and 40 applications for programmatic permits under Sec.  
22.26 and Sec.  22.27, annually. We expect about one third may be 
Federal Government agencies. Therefore, we estimate that approximately 
746 non-Federal applicants will apply for eagle-take permits, 46 non-
Federal applicants will submit applications for eagle nest take 
permits, and 26 non-Federal applicants will apply for programmatic 
permits. We estimate it will take an average of 16 hours to complete an 
application for an individual take permit. Programmatic permit 
applications will require more time, particularly at the outset as the 
first ones are developed for a given industry. As programmatic permits 
measures are developed for particular industries, the time it will take 
to apply for these permits will decrease. We estimate that the average 
programmatic take permit application will require 40 hours to prepare, 
although early programmatic permits that will serve as the 
``prototypes'' for subsequent applications will require more time.
    An agency may not conduct or sponsor and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The public may comment, at any 
time, on the accuracy of the information collection burden in this rule 
and may submit any comments to the Information Collection Clearance 
Officer, Fish and Wildlife Service, Department of the Interior, 1849 C 
Street, NW., (Mailstop 222-ARLSQ), Washington, D.C. 20240.
    National Environmental Policy Act. The Service has prepared an 
environmental assessment of this action, pursuant to the National 
Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.). 
Copies of the final environmental assessment are available on our 
website at http://www.fws.gov/migratorybirds/baldeagle.htm

Literature Cited

    Good, R. E., R. M. Nielson, H. H. Sawyer, and L. L. McDonald. 2004. 
Population level survey of golden eagles (Aquila chrysaetos) in the 
Western United States. Final Report submitted to the Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service. Western 
Ecosystems Technology, Incorporated; Cheyenne, Wyoming.
    Good, R. E., R. M. Nielson, L. L. McDonald, and D. Tidhar. 2007. 
Results of the 2006 survey of golden eagles (Aquila chrysaetos) in the 
Western United States. Report submitted to the Division of Migratory 
Bird Management, U.S. Fish and Wildlife Service. Western Ecosystems 
Technology, Incorporated; Cheyenne, Wyoming.
    Kirk, D. A. and C. Hyslop. 1998. Population status and recent 
trends in Canadian Raptors: A review. Biological Conservation 83:91-
118.
    Kochert, M. N., K. Steenhof, C. L. McIntyre, and E. H. Craig. 2002. 
Golden Eagle (Aquila chrysaetos). Number 684 in The Birds of North 
America, A. Poole and G. Gill, editors. The Birds of North America, 
Inc., Philadelphia, Pennsylvania.
    McIntyre, C. L., D.C. Douglas, and M. W. Collopy. 2008. Movements 
of golden eagles (Aquila chrysaetos) from interior Alaska during their 
first year of independence. Auk 125:214-224.
    Millsap, Brian and George Allen. 2006. Effects of Falconry Harvest 
on Wild Raptor Populations in the United States: Theoretical 
Considerations and Management Recommendations. Wildlife Society 
Bulletin, 34(5):1392-1400.
    U.S. Fish and Wildlife Service. 2007. National Bald Eagle 
Management Guidelines, Arlington, Virginia.

List of Subjects in 50 CFR Part 13

    Administrative practice and procedure, Exports, Fish, Imports, 
Plants, Reporting and record keeping requirements, Transportation, 
Wildlife.

List of Subjects in 50 CFR Part 22

    Birds, Exports, Imports, Migratory Birds, Reporting and 
recordkeeping requirements, Transportation, Wildlife.

Regulation Promulgation

0
For the reasons described in the preamble, we amend Subchapter B of 
Chapter I, Title 50 of the Code of Federal Regulations, as set forth 
below:

PART 13--GENERAL PERMIT PROCEDURES

0
1. The authority citation for part 13 continues to read as follows:

    Authority: 16 U.S.C. 668a, 704, 712, 742j-1, 1374(g), 1382, 
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C. 
1202; 31 U.S.C. 9701.

0
2. Amend the table in Sec.  13.11(d)(4) as follows:
0
a. Under the heading ``Bald and Golden Eagle Protection Act,'' remove 
the entry for ``Eagle Depredation'' and replace it with a new entry for 
``Eagle Take Permits--Depredation and Protection of Health and 
Safety''; and
0
b. Add four entries under ``Bald and Golden Eagle Protection Act'' in 
the table immediately following the entry for ``Eagle Transport--Native 
American Religious Purposes,'' to read as follows:


Sec.  13.11  Application procedures.

* * * * *
    (d) * * *
    (4) User fees. * * *

----------------------------------------------------------------------------------------------------------------
            Type of Permit                   CFR citation                 Fee                 Amendment Fee
----------------------------------------------------------------------------------------------------------------
* * * * *
                                      Bald and Golden Eagle Protection Act
----------------------------------------------------------------------------------------------------------------
* * * * * * *                                                                            .......................
----------------------------------------------------------------------------------------------------------------
Eagle Take permits--Depredation and    50 CFR 22                100                      .......................
 Protection of Health and Safety
----------------------------------------------------------------------------------------------------------------
* * * * * * *                                                                            .......................
----------------------------------------------------------------------------------------------------------------
Eagle Take--Associated With but Not    50 CFR 22                500                      150
 the Purpose of an Activity
----------------------------------------------------------------------------------------------------------------
Eagle Take--Associated With but Not    50 CFR 22                1000                     500
 the Purpose of an Activity--
 Programmatic
----------------------------------------------------------------------------------------------------------------
Eagle Nest Take                        50 CFR 22                500                      150
----------------------------------------------------------------------------------------------------------------
Eagle Nest Take--Programmatic          50 CFR 22                1000                     500
----------------------------------------------------------------------------------------------------------------
* * * * * * *                                                                            .......................
----------------------------------------------------------------------------------------------------------------


[[Page 46876]]

* * * * *

0
3. Amend the table in Sec. 13.12(b) as follows:
0
a. Under ``Eagle permits,'' remove the entry for ``Depredation 
control'' and replace it with ``Depredation and Protection of Health 
and Safety''; and
0
b. Add to the table the following entries in numerical order by section 
number to read as follows:


Sec.  13.12  General information requirements on applications for 
permits.

* * * * *
    (b) * * *

------------------------------------------------------------------------
              Type of permit                           Section
------------------------------------------------------------------------
 * * * * *
------------------------------------------------------------------------
Eagle permits:
------------------------------------------------------------------------
 * * * * *
------------------------------------------------------------------------
Depredation and Protection of Health and    22.23
 Safety
------------------------------------------------------------------------
 * * * * *
------------------------------------------------------------------------
Eagle Take--Associated With but Not the     22.26
 Purpose of an Activity
------------------------------------------------------------------------
Eagle Nest Take                             22.27
------------------------------------------------------------------------
 * * * * *
------------------------------------------------------------------------

PART 22--EAGLE PERMITS

0
4. The authority citation for part 22 continues to read as follows:


    Authority: 16 U.S.C. 668-668d; 16 U.S.C. 703-712; 16 U.S.C. 
1531-1544.

0
5. Amend Sec.  22.3 as follows:
0
a. By revising the introductory paragraph to read as set forth below;
0
b. By removing the definition of ``Golden eagle nest'';
0
c. By revising the definitions of ``Inactive nest'' and Take'' to read 
as set forth below; and
0
d. By adding new definitions for ``Advanced conservation practices'', 
``Communal roost site'', ``Cumulative effects'', ``Eagle nest'', 
``Foraging area'', ``Important eagle-use area'', ``Indirect effects'', 
``Maximum degree achievable'', ``Necessary to ensure public health and 
safety'', ``Practicable'', ``Programmatic permit'', ``Programmatic 
take'', ``Safety emergency'' and ``Territory'' to read as set forth 
below.


Sec.  22.3  What definitions do you need to know?

    In addition to the definitions contained in part 10 of this 
subchapter, and unless the context otherwise requires, in this part 22:
    Advanced conservation practices means scientifically supportable 
measures that are approved by the Service and represent the best 
available techniques to reduce eagle disturbance and ongoing 
mortalities to a level where remaining take is unavoidable.
* * * * *
    Communal roost site means an area where eagles gather repeatedly in 
the course of a season and shelter overnight and sometimes during the 
day in the event of inclement weather.
    Cumulative effects means the incremental environmental impact or 
effect of the proposed action, together with impacts of past, present, 
and reasonably foreseeable future actions.
* * * * *
    Eagle nest means any readily identifiable structure built, 
maintained, or used by bald eagles or golden eagles for the purpose of 
reproduction.
* * * * *
    Foraging area means an area where eagles regularly feed during one 
or more seasons.
* * * * *
    Important eagle-use area means an eagle nest, foraging area, or 
communal roost site that eagles rely on for breeding, sheltering, or 
feeding, and the landscape features surrounding such nest, foraging 
area, or roost site that are essential for the continued viability of 
the site for breeding, feeding, or sheltering eagles.
    Inactive nest means a bald eagle or golden eagle nest that is not 
currently being used by eagles as determined by the continuing absence 
of any adult, egg, or dependent young at the nest for at least 10 
consecutive days immediately prior to, and including, at present. An 
inactive nest may become active again and remains protected under the 
Eagle Act.
    Indirect effects means effects for which a proposed action is a 
cause, and which may occur later in time and/or be physically 
manifested beyond the initial impacts of the action, but are still 
reasonably likely to occur.
    Maximum degree achievable means the standard at which any take that 
occurs is unavoidable despite implementation of advanced conservation 
practices.
    Necessary to ensure public health and safety means required to 
maintain society's well-being in matters of health and safety.
* * * * *
    Practicable means capable of being done after taking into 
consideration, relative to the magnitude of the impacts to eagles, the 
following three things: the cost of remedy compared to proponent 
resources; existing technology; and logistics in light of overall 
project purposes.
    Programmatic permit means a permit that authorizes programmatic 
take. A programmatic permit can cover other take in addition to 
programmatic take.
    Programmatic take means take that is recurring, is not caused 
solely by indirect effects, and that occurs over the long term or in a 
location or locations that cannot be specifically identified.
* * * * *
    Safety emergency means a situation that necessitates immediate 
action to alleviate a threat of bodily harm to humans or eagles.
    Take means pursue, shoot, shoot at, poison, wound, kill, capture, 
trap, collect, destroy, molest, or disturb.
    Territory means an area that contains, or historically contained, 
one or more nests within the home range of a mated pair of eagles.
* * * * *

0
6. Amend Sec.  22.4 as follows:
0
a. In paragraph (a), the first sentence, by adding ``and 1018-0136'' 
immediately following ``1018-0022''; and
0
b. By revising paragraph (b) to read as follows:


Sec.  22.4  Information collection requirements.

* * * * *
    (b) Direct comments regarding any aspect of these reporting 
requirements to the Service Information Collection Control Officer, MS-
222 ARLSQ, U.S. Fish and Wildlife Service, Washington, DC 20240, or the 
Office of Management and Budget, Paperwork Reduction Project (1018-0022 
and 1018-0136), Washington, DC 20603.


0
7. Amend Sec.  22.23 by revising:
0
a. The section heading;
0
b. Paragraph (a) introductory text and paragraphs (a)(5) and (a)(6);
0
c. Paragraph (b) introductory text;
0
d. Paragraph (c) introductory text and paragraphs (c)(2) and (c)(3); 
and
0
e. Paragraph (d), to read as follows:


Sec.  22.23  What are the requirements for permits to take depredating 
eagles and eagles that pose a risk to human or eagle health and safety?

    (a) How do I apply for a permit? You must submit applications for 
permits under this section to the appropriate Regional Director--
Attention: Migratory Bird Permit Office. You can find addresses for the 
appropriate Regional Directors in 50 CFR 2.2. Your application must 
contain the information and certification required by Sec.  13.12(a) of 
this subchapter, and the following additional information:
* * * * *

[[Page 46877]]

    (5) Kind and number of livestock or domestic animals owned by 
applicant, if applicable;
    (6) Kind and amount of alleged damage, or description of the risk 
posed to human health and safety or eagles; and
* * * * *
    (b) What are the permit conditions? In addition to the general 
conditions set forth in part 13 of this subchapter B, permits to take 
bald or golden eagles under this section are subject to the following 
conditions:
* * * * *
    (c) Issuance criteria. The Director will not issue a permit to take 
bald or golden eagles unless the Director has determined that such 
taking is compatible with the preservation of the bald or golden eagle. 
In making such determination, the Director will consider the following:
* * * * *
    (2) Whether evidence shows that bald or golden eagles have in fact 
become seriously injurious to wildlife or to agriculture or other 
interests in the particular locality to be covered by the permit and 
the injury complained of is substantial, or that bald or golden eagles 
pose a significant risk to human or eagle health and safety; and
    (3) Whether the only way to abate or prevent the damage caused by 
the bald or golden eagle is to take some or all of the offending birds.
    (d) Tenure of permits. The tenure of any permit to take bald or 
golden eagles under this section is that shown on the face of the 
permit. We will not issue these permits for terms longer than 90 days, 
except that permits to authorize disturbance associated with hazing 
eagles from the vicinity may be valid for up to 5 years. We may amend, 
suspend, or revoke permits issued for a period of longer than 90 days 
if new information indicates that revised permit conditions are 
necessary, or that suspension or revocation is necessary, to safeguard 
local or regional eagle populations.


0
8. Amend part 22, subpart C, by adding new Sec.  22.26 and Sec.  22.27 
to read as follows:

Subpart C--Eagle Permits

* * * * *


Sec.  22.26  Permits for eagle take that is associated with, but not 
the purpose of, an activity.

    (a) Purpose and scope. This permit authorizes take of bald eagles 
and golden eagles where the take is compatible with the preservation of 
the bald eagle and the golden eagle; necessary to protect an interest 
in a particular locality; associated with but not the purpose of the 
activity; and
    (1) For individual instances of take: the take cannot practicably 
be avoided; or
    (2) For programmatic take: the take is unavoidable even though 
advanced conservation practices are being implemented.
    (b) Definitions. In addition to the definitions contained in part 
10 of this subchapter, and Sec.  22.3, the following definition applies 
in this section:
    Eagle means a live bald eagle (Haliaeetus leucocephalus), live 
golden eagle (Aquila chrysaetos), a bald eagle egg, or a golden eagle 
egg.
    (c) Permit conditions. In addition to the conditions set forth in 
part 13 of this subchapter, which govern permit renewal, amendment, 
transfer, suspension, revocation, and other procedures and requirements 
for all permits issued by the Service, your authorization is subject to 
the following additional conditions:
    (1) You must comply with all avoidance, minimization, or other 
mitigation measures determined by the Director as reasonable and 
specified in the terms of your permit to compensate for the detrimental 
effects, including indirect effects, of the permitted activity on the 
regional eagle population;
    (2) You may be required to monitor eagle use of important eagle-use 
areas where eagles are likely to be affected by your activities for up 
to 3 years after completion of the activity or as set forth in a 
separate management plan, as specified on your permit. Unless different 
monitoring protocols are required under a separate management plan 
approved by the Service and denoted on the permit, monitoring consists 
of periodic site visits, during the season(s) when eagles would 
normally be present, to the area where the take is likely to occur, and 
noting whether eagles continue to nest, roost, or forage there. The 
periodic monitoring is required for the duration of the activity that 
is likely to cause take (during the season(s) that eagles would 
normally be present). The frequency and duration of required monitoring 
after the activity is completed will depend on the form and magnitude 
of the anticipated take and the objectives of associated conservation 
measures, not to exceed what is reasonable to meet the primary purpose 
of the monitoring, which is to provide data needed by the Service 
regarding the impacts of human activity on eagles for purposes of 
adaptive management. Monitoring will not be required beyond 3 years 
after completion of an activity that was likely to cause take. For 
ongoing activities and enduring site features that continue to be 
likely to result in take, periodic monitoring may be required for as 
long as the data are needed to assess impacts to eagles.
    (3) You must submit an annual report summarizing the information 
you obtained through monitoring to the Service every year that your 
permit is valid and for up to 3 years after completion of the activity 
or termination of the permit, as specified in your permit. If your 
permit expires or is suspended or revoked before the activity is 
completed, you must submit the report within 60 days of such date. 
Reporting requirements include:
    (i) Whether eagles are observed using the important eagle-use areas 
designated on the permit; and
    (ii) Description of the human activities conducted at the site when 
eagles are observed.
    (4) While the permit is valid and for up to 3 years after it 
expires, you must allow Service personnel, or other qualified persons 
designated by the Service, access to the areas where eagles are likely 
to be affected, at any reasonable hour, and with reasonable notice from 
the Service, for purposes of monitoring eagles at the site(s).
    (5) The authorizations granted by permits issued under this section 
apply only to take that results from activities conducted in accordance 
with the description contained in the permit application and the terms 
of the permit. If the permitted activity changes after a permit is 
issued, you must immediately contact the Service to determine whether a 
permit amendment is required in order to retain take authorization.
    (6) You must contact the Service immediately upon discovery of any 
unanticipated take.
    (7) The Service may amend, suspend, or revoke a programmatic permit 
issued under this section if new information indicates that revised 
permit conditions are necessary, or that suspension or revocation is 
necessary, to safeguard local or regional eagle populations. This 
provision is in addition to the general criteria for amendment, 
suspension, and revocation of Federal permits set forth in Sec. Sec.  
13.23, 13.27, and 13.28.
    (8) Notwithstanding the provisions of Sec.  13.26 of this 
subchapter, you remain responsible for all outstanding monitoring 
requirements and mitigation measures required under the terms of the 
permit for take that occurs prior to cancellation, expiration, 
suspension, or revocation of the permit.
    (9) You must promptly notify the Service of any eagle(s) found 
injured or

[[Page 46878]]

dead at the activity site, regardless of whether the injury or death 
resulted from your activity. The Service will determine the disposition 
of such eagles.
    (10) The authorization granted by permits issued under this section 
is not valid unless you are in compliance with all Federal, tribal, 
State, and local laws and regulations applicable to take of eagles.
    (d) Applying for an eagle take permit.
    (1) You are advised to coordinate with the Service as early as 
possible for advice on whether a permit is needed and for technical 
assistance in assembling your permit application package. The Service 
may provide guidance on developing complete and adequate application 
materials and will determine when the application form and materials 
are ready for submission.
    (2) Your application must consist of a completed application Form 
3-200-71 and all required attachments. Send applications to the 
Regional Director of the Region in which the disturbance would occur--
Attention: Migratory Bird Permit Office. You can find the current 
addresses for the Regional Directors in Sec. 2.2 of subchapter A of 
this chapter.
    (e) Evaluation of applications. In determining whether to issue a 
permit, we will evaluate:
    (1) Whether take is likely to occur based on the magnitude and 
nature of the impacts of the activity, which include indirect effects. 
For potential take in the form of disturbance, this evaluation would 
include:
    (i) The prior exposure and tolerance to similar activity of eagles 
in the vicinity;
    (ii) Visibility of the activity from the eagle's nest, roost, or 
foraging perches; and
    (iii) Whether alternative suitable eagle nesting, roosting, and/or 
feeding areas that would not be detrimentally affected by the activity 
are available to the eagles potentially affected by the activity.
    (2) Whether the take is:
    (i) Compatible with the preservation of the bald eagle and the 
golden eagle, including consideration of indirect effects and the 
cumulative effects of other permitted take and other additional factors 
affecting eagle populations;
    (ii) Associated with the permanent loss of an important eagle use 
area;
    (iii) Necessary to protect a legitimate interest in a particular 
locality; and
    (iv) Associated with, but not the purpose of, the activity.
    (3) Whether the applicant has proposed avoidance and minimization 
measures to reduce the take to the maximum degree practicable, and for 
programmatic authorizations, the take is unavoidable despite 
application of advanced conservation practices developed in 
coordination with the Service.
    (4) Whether issuing the permit would preclude the Service from 
authorizing another take necessary to protect an interest of higher 
priority, according to the following prioritization order:
    (i) Safety emergencies;
    (ii) Native American religious use for rites and ceremonies that 
require eagles be taken from the wild;
    (iii) Renewal of programmatic take permits;
    (iv) Non-emergency activities necessary to ensure public health and 
safety; and
    (v) Other interests.
    (5) Any additional factors that may be relevant to our decision 
whether to issue the permit, including, but not limited to, the 
cultural significance of a local eagle population.
    (f) Required determinations. Before we issue a permit, we must find 
that:
    (1) The direct and indirect effects of the take and required 
mitigation, together with the cumulative effects of other permitted 
take and additional factors affecting eagle populations, are compatible 
with the preservation of bald eagles and golden eagles;
    (2) The taking is necessary to protect a legitimate interest in a 
particular locality;
    (3) The taking is associated with, but not the purpose of, the 
activity;
    (4) The taking cannot practicably be avoided; or for programmatic 
authorizations, the take is unavoidable;
    (5) The applicant has avoided and minimized impacts to eagles to 
the extent practicable, and for programmatic authorizations, the taking 
will occur despite application of advanced conservation practices; and
    (6) Issuance of the permit will not preclude issuance of another 
permit necessary to protect an interest of higher priority as set forth 
in paragraph (e)(4) of this section.
    (g) We may deny issuance of a permit if we determine that take is 
not likely to occur.
    (h) Permit duration. The duration of each permit issued under this 
section will be designated on its face, and will be based on the 
duration of the proposed activities, the period of time for which take 
will occur, the level of impacts to eagles, and mitigation measures, 
but will not exceed 5 years.


Sec.  22.27  Removal of eagle nests.

    (a) Purpose and scope.
    (1) A permit may be issued under this section to authorize removal 
or relocation of:
    (i) An active or inactive nest where necessary to alleviate a 
safety emergency;
    (ii) An inactive eagle nest when the removal is necessary to ensure 
public health and safety;
    (iii) An inactive nest that is built on a human-engineered 
structure and creates a functional hazard that renders the structure 
inoperable for its intended use; or
    (iv) An inactive nest, provided the take is necessary to protect an 
interest in a particular locality and the activity necessitating the 
take or the mitigation for the take will, with reasonable certainty, 
provide a clear and substantial benefit to eagles.
    (2) Where practicable and biologically warranted, the permit may 
require a nest to be relocated, or a substitute nest provided, in a 
suitable site within the same territory to provide a viable nesting 
option for eagles within that territory, unless such relocation would 
create a threat to safety. However, we may issue permits to remove 
nests that we determine cannot or should not be relocated. The permit 
may authorize take of eggs or nestlings if present. The permit may also 
authorize the take of adult eagles (e.g., disturbance or capture) 
associated with the removal or relocation of the nest.
    (3) A programmatic permit may be issued under this section to cover 
multiple nest takes over a period of up to 5 years, provided the 
permittee complies with comprehensive measures that are developed in 
coordination with the Service, designed to reduce take to the maximum 
degree technically achievable, and specified as conditions of the 
permit.
    (4) This permit does not authorize intentional, lethal take of 
eagles.
    (b) Conditions.
    (1) Except for take that is necessary to alleviate an immediate 
threat to human or eagle safety, only inactive eagle nests may be taken 
under this permit.
    (2) When an active nest must be removed under this permit, any take 
of nestlings or eggs must be conducted by a Service-approved, 
qualified, and permitted agent, and all nestlings and viable eggs must 
be immediately transported to foster/recipient nests or a 
rehabilitation facility permitted to care for eagles, as directed by 
the Service.
    (3) Possession of the nest for any purpose other than removal or 
relocation is prohibited without a separate permit issued under this 
part authorizing such possession.
    (4) You must submit a report consisting of a summary of the 
activities conducted under the permit to the Service within 30 days 
after the

[[Page 46879]]

permitted take occurs, except that for programmatic permits, you must 
report each nest removal within 10 days after the take and submit an 
annual report by January 31 containing all the information required in 
Form 3-202-16 for activities conducted during the preceding calendar 
year.
    (5) You may be required to monitor the area and report whether 
eagles attempt to build or occupy another nest at another site in the 
vicinity for the duration specified in the permit.
    (6) You may be required under the terms of the permit to harass 
eagles from the area following the nest removal when the Service 
determines it is necessary to prevent eagles from re-nesting in the 
vicinity.
    (7) You must comply with all avoidance, minimization, or other 
mitigation measures determined by the Director as reasonable and 
specified in the terms of your permit to compensate for the detrimental 
effects, including indirect effects, of the permitted activity on--and 
for permits issued under paragraph (a)(1)(iv) of this section, to 
provide a net benefit to--the regional eagle population.
    (8) The Service may amend or revoke a programmatic permit issued 
under this section if new information indicates that revised permit 
conditions are necessary, or that suspension or revocation is 
necessary, to safeguard local or regional eagle populations.
    (9) Notwithstanding the provisions of Sec. 13.26 of this 
subchapter, you remain responsible for all outstanding monitoring 
requirements and mitigation measures required under the terms of the 
permit for take that occurs prior to cancellation, expiration, 
suspension, or revocation of the permit.
    (10) The authorization granted by permits issued under this section 
is not valid unless you are in compliance with all Federal, tribal, 
State, and local laws and regulations applicable to take of eagles.
    (c) Applying for a permit to take eagle nests.
    (1) If the take is necessary to address an immediate threat to 
human or eagle safety, contact your local U.S. Fish and Wildlife 
Service Regional Migratory Bird Permit Office (http://www.fws.gov/permits/mbpermits/addresses.html) at the earliest possible opportunity 
to inform the Service of the emergency.
    (2) Your application must consist of a completed application Form 
3-200-72 and all required attachments. Send applications to the 
Regional Director of the Region in which the disturbance would occur--
Attention: Migratory Bird Permit Office. You can find the current 
addresses for the Regional Directors in Sec. 2.2 of subchapter A of 
this chapter.
    (d) Evaluation of applications. In determining whether to issue a 
permit, we will evaluate:
    (1) Whether the activity meets the requirements of paragraph (a)(1) 
of this section;
    (2) The direct and indirect effects of the take and required 
mitigation, together with the cumulative effects of other permitted 
take and additional factors affecting eagle populations;
    (3) Whether there is a practicable alternative to nest removal that 
will protect the interest to be served;
    (4) Whether issuing the permit would preclude the Service from 
authorizing another take necessary to protect an interest of higher 
priority, as set forth in paragraph (e)(5) of this section;
    (5) For take that is not necessary to alleviate an immediate safety 
emergency, whether suitable nesting and foraging habitat is available 
to accommodate eagles displaced by the nest removal; and
    (6) Any additional factors that may be relevant to our decision 
whether to issue the permit, including, but not limited to, the 
cultural significance of a local eagle population.
    (e) Required determinations. Before issuing a permit under this 
section, we must find that:
    (1) The direct and indirect effects of the take and required 
mitigation, together with the cumulative effects of other permitted 
take and additional factors affecting eagle populations, are compatible 
with the preservation of the bald eagle or the golden eagle;
    (2) For inactive nests:
    (i) The take is necessary to ensure public health and safety;
    (ii) The nest is built on a human-engineered structure and creates 
a functional hazard that renders the structure inoperable for its 
intended use; or
    (iii) The take is necessary to protect a legitimate interest in a 
particular locality, and the activity necessitating the take or the 
mitigation for the take will, with reasonable certainty, provide a 
clear and substantial benefit to eagles;
    (3) For active nests, the take is necessary to alleviate an 
immediate threat to human safety or eagles;
    (4) There is no practicable alternative to nest removal that would 
protect the interest to be served; and
    (5) Issuing the permit will not preclude the Service from 
authorizing another take necessary to protect an interest of higher 
priority, according to the following prioritization order:
    (i) Safety emergencies;
    (ii) Native American religious use for rites and ceremonies that 
require eagles be taken from the wild;
    (iii) Renewal of programmatic nest-take permits;
    (iv) Non-emergency activities necessary to ensure public health and 
safety;
    (v) Resource development or recovery operations (under Sec.  22.25, 
for golden eagle nests only);
    (vi) Other interests.
    (6) For take that is not necessary to alleviate an immediate threat 
to human safety or eagles, we additionally must find that suitable 
nesting and foraging habitat is available to the area nesting 
population of eagles to accommodate any eagles displaced by the nest 
removal.
    (f) Tenure of permits. The tenure of any permit to take eagle nests 
under this section is set forth on the face of the permit and will not 
be longer than 5 years.


0
9. Amend Sec.  22.28 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  22.28  Permits for bald eagle take exempted under the Endangered 
Species Act.

    (a) Purpose and scope. This permit authorizes take of bald eagles 
(Haliaeetus leucocephalus) in compliance with the terms and conditions 
of a section 7 incidental take statement under the Endangered Species 
Act of 1973, as amended (ESA) (16 U.S.C. 1531 et seq.; 50 CFR 402, 
Subpart B) issued prior to the effective date of 50 CFR 22.26.
    (b) Issuance criteria. Before issuing you a permit under this 
section, we must find that you are in full compliance with the terms 
and conditions contained in the applicable ESA incidental take 
statement issued prior to the effective date of 50 CFR 22.26 for take 
of eagles, based on your certification and any other relevant 
information available to us, including, but not limited to, monitoring 
or progress reports required pursuant to your incidental take 
statement. The terms and conditions of the Eagle Act permit under this 
section, including any modified terms and conditions, must be 
compatible with the preservation of the bald eagle.
* * * * *

    Dated: May 18, 2009.
Will Shafroth,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E9-21589 Filed 9-10- 09; 8:45 am]
BILLING CODE 4310-55-S