[Federal Register Volume 87, Number 189 (Friday, September 30, 2022)]
[Proposed Rules]
[Pages 59598-59631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21025]
[[Page 59597]]
Vol. 87
Friday,
No. 189
September 30, 2022
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Parts 13 and 22
Permits for Incidental Take of Eagles and Eagle Nests; Proposed Rule
Federal Register / Vol. 87, No. 189 / Friday, September 30, 2022 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 22
[Docket No. FWS-HQ-MB-2020-0023; FF09M30000-223-FXMB12320900000]
RIN 1018-BE70
Permits for Incidental Take of Eagles and Eagle Nests
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service or USFWS),
propose the following revisions to regulations authorizing the issuance
of permits for eagle incidental take and eagle nest take. The purpose
of these revisions is to increase the efficiency and effectiveness of
permitting, facilitate and improve compliance, and increase the
conservation benefit for eagles. In addition to continuing to authorize
specific permits, we propose the creation of general permits for
certain activities under prescribed conditions. We propose a general
permit option for qualifying wind-energy generation projects, power
line infrastructure, activities that may disturb breeding bald eagles,
and bald eagle nest take. We propose to remove the current third-party
monitoring requirement from eagle incidental take permits. We also
propose to update current permit fees and clarify definitions.
DATES: Comment submission: This proposed rule, draft environmental
review, and accompanying documents in the docket are available for
public review and comment through November 29, 2022.
Information sessions: We will hold four information sessions in
webinar format: two for members of federally recognized Native American
Tribes and two for the general public. See Public Comments below under
SUPPLEMENTARY INFORMATION for details.
Information collection requirements: If you wish to comment on the
information collection requirements in this proposed rule, please note
that the Office of Management and Budget (OMB) is required to make a
decision concerning the collection of information contained in this
proposed rule between 30 and 60 days after publication of this proposed
rule in the Federal Register. Therefore, comments should be submitted
to the Service Information Collection Clearance Officer, U.S. Fish and
Wildlife Service, (see ``Information Collection'' section below under
ADDRESSES) by November 29, 2022.
ADDRESSES: Document availability: Supplementary documents to this
rulemaking action, including a draft environmental review and list of
references cited, are available at https://www.regulations.gov in
Docket No. FWS-HQ-MB-2020-0023. Documents and additional information
can also be found at: https://www.fws.gov/regulations/eagle.
Comment submission: You may submit written comments on this
proposed rule and draft environmental review by one of the following
methods:
Electronically at the Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments to
Docket No. FWS-HQ-MB-2020-0023.
By hard copy via U.S. mail: Public Comments Processing,
Attn: FWS-HQ-MB-2020-0023; U.S. Fish and Wildlife Service; MS: PRB/3W;
5275 Leesburg Pike; Falls Church, VA 22041-3803.
We will post all comments on https://www.regulations.gov, including
any personal information you provide. See Public Availability of
Comments below under SUPPLEMENTARY INFORMATION for further information.
Information collection requirements: Send your comments on the
information collection request by mail to the Service Information
Collection Clearance Officer, U.S. Fish and Wildlife Service, by email
to [email protected]; or by mail to 5275 Leesburg Pike, MS: PRB (JAO/
3W), Falls Church, VA 22041-3803. Please reference OMB Control Number
1018-0167 in the subject line of your comments.
FOR FURTHER INFORMATION CONTACT: Jerome Ford, Assistant Director--
Migratory Birds Program, U.S. Fish and Wildlife Service, telephone:
(703) 358-2606, email: [email protected]. Individuals in the United
States who are deaf, deafblind, hard of hearing, or have a speech
disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Fish and Wildlife Service (Service) is the Federal agency
delegated with the primary responsibility for managing bald eagles
(Haliaeetus leucocephalus) and golden eagles (Aquila chrysaetos) under
the Bald and Golden Eagle Protection Act 16 U.S.C. 668-668d;
[hereinafter the ``Eagle Act'']). The Eagle Act prohibits the take,
possession, and transportation of bald eagles and golden eagles except
pursuant to Federal regulations. The Eagle Act authorizes the Secretary
of the Interior to issue regulations to permit the ``taking'' of eagles
for various purposes, including when ``necessary . . . for the
protection of other interests in any particular locality,'' provided
the taking is compatible with the preservation of eagles (16 U.S.C.
668a). Regulations pertaining to eagle permits are set forth in title
50 of the Code of Federal Regulations (CFR) at 50 CFR part 22.
In 2009, subsequent to the delisting of the bald eagle from the
List of Endangered and Threatened Wildlife at 50 CFR 17.11, the Service
promulgated regulations (74 FR 46836, Sept. 11, 2009 [hereinafter the
``2009 Eagle Rule'']) at 50 CFR part 22 that established two new permit
types for the incidental take of eagles and eagle nests. Incidental
take means foreseeable take that results from, but is not the purpose
of, the activity. These regulations were originally located at 50 CFR
22.26 and 22.27 but were later moved to 50 CFR 22.80 and 22.85 during a
general reorganization of our migratory bird and eagle permit
regulations (87 FR 876, January 7, 2022).
In 2016, the Service finalized a rule (81 FR 91494, December 16,
2016 [hereinafter the ``2016 Eagle Rule'']) revising the 2009 Eagle
Rule that, among other things:
(1) extended the maximum tenure of permits for the incidental take
of eagles from 5 to 30 years;
(2) updated the boundaries to the Service's Eagle Management Units
(EMUs) to better reflect regional populations and migration patterns of
both eagle species;
(3) imposed preconstruction monitoring requirements for wind-energy
projects applying for incidental take permits;
(4) amended the preservation standard (discussed below); and
(5) imposed a new requirement to analyze cumulative-authorized and
known-unauthorized take at local scales to ensure compliance with the
preservation standard. This rulemaking was supported by a programmatic
environmental impact statement (PEIS), and the Service's final decision
was described in a record of decision, both of which are available at
https://www.regulations.gov in Docket No. FWS-R9-MB-2011-0094.
On September 14, 2021, the Service published an advance notice of
proposed rulemaking (ANPR) to inform the public of changes the Service
is
[[Page 59599]]
considering that expedite and simplify the permit process authorizing
incidental take of eagles (86 FR 51094). The ANPR also advised the
public that the Service may prepare a draft environmental review
pursuant to the National Environmental Policy Act of 1969, as amended.
In the ANPR, we invited input from Tribes, as well as Federal agencies,
State agencies, nongovernmental organizations, and the general public
for any pertinent issues we should address, including alternatives to
our proposed approach for authorizing eagle incidental take. The public
comment period closed on October 29, 2021.
During the public comment period, we received 1,899 distinct
comments on the ANPR. Many comments included additional attachments
(e.g., scanned letters and supporting documents). These comments
represented the views of Native American Tribes, multiple Federal and
State agencies, private industries, nongovernmental organizations, and
private citizens. In addition to the individual comments received,
multiple organizations submitted attachments representing individuals'
comments, form letters, and signatories to petition-like letters
representing 1,804 signers.
Many comments expressed concerns with the efficiency of the current
permitting process, including the lack of capacity within the Service
to review and issue permits and the extensive processing times.
Similarly, most comments supported the idea of a general permit program
to streamline the process and provide more timely and cost-effective
coverage for industry. Concerns were also raised about monitoring and
reporting requirements. Several comments expressed opposition to third-
party or pooled monitoring approaches, while others suggested the
Service require permittees to implement a regular, standardized
monitoring protocol with annual reporting requirements.
In drafting this proposed rule, we considered the comments received
on the ANPR.
Preservation Standard
For this proposed rulemaking, we do not propose any changes to the
current preservation standard or management objectives. The Eagle Act
requires that any authorized take of eagles be ``compatible with the
preservation'' of bald and golden eagles (16 U.S.C. 668a). Under
existing regulations, the preservation standard is defined as
consistent with the goals of maintaining stable or increasing breeding
populations in all eagle management units and the persistence of local
populations throughout the geographic range of each species (50 CFR
22.6). The timeframe the Service used for modeling and assessing eagle
population demographics is 100 years (at least eight generations) for
both eagle species relative to the baseline set in the 2009 Eagle Rule.
``Eagle management unit'' is defined as a geographically bounded region
within which permitted take is regulated to meet the management goal of
maintaining stable or increasing breeding populations of bald or golden
eagles (see 2016 PEIS). The 2016 PEIS and 2016 Eagle Rule describe two
management objectives for ensuring the Service's 2016 preservation
standard is met for eagles. These management objectives are: (1)
maintain stable or increasing populations of both eagle species within
EMUs, and (2) maintain the persistence of local area populations of
both eagle species. Both objectives continue to use 2009 as the
baseline, for 100 years into the future.
Population Status of Bald Eagles and Golden Eagles
We propose different management criteria for bald eagles and golden
eagles because of the different population statuses and growth rates of
each species. We determined this approach is necessary both to achieve
the preservation standard and to avoid being unnecessarily restrictive.
The Service recently updated population size estimates and allowable
take limits for bald eagles (87 FR 5493, February 1, 2022). That
document included data from 2019 estimating the population of bald
eagles in the coterminous United States to be 316,708, a four-fold
increase above our previously published estimate in 2016. Bald eagle
populations in most EMUs have been growing at the rate of 10 percent
per year. The current population size estimate for the coterminous
United States is approximately 336,000, with a nationwide take limit of
19,623 bald eagles. Conversely, golden eagle population trends through
2016 appear relatively stable. However, information on anthropogenic
mortality rates suggests unpermitted take likely exceeds what is
compatible with long-term population stability of golden eagles. The
estimated U.S. population size for golden eagles remains approximately
38,000, which is less than the bald eagle population of 336,000 by an
order of magnitude. The golden eagle take limit remains set at zero,
unless offset with compensatory mitigation, because available
information indicates that additional take of golden eagles without
offsetting compensatory mitigation is likely to decrease the population
and not be compatible with the preservation of golden eagles (Analysis
of the effects of potential general permit scenarios on bald and golden
eagles, (2022). Division of Migratory Bird Management, U.S. Fish and
Wildlife Service, Washington, DC, USA.).
This Rulemaking
Overview
The Service proposes a new subpart E within 50 CFR part 22 for
eagle permit regulations authorizing take that is necessary for the
protection of other interests in any particular locality (eagle take
for other interests). This proposed new subpart includes revised
provisions for processing specific permits (sometimes called individual
permits) and adds a general-permit alternative for qualifying
activities. General permits would be available to authorize incidental
take by activities, consistent with the preservation standard, that
occur frequently enough for the Service to have developed a
standardized approach to permitting. The proposed regulations also
restructure the existing specific permit regulations for eagle take
that is associated with, but not the purpose of, an activity (50 CFR
22.80) and removal of eagle nests (50 CFR 22.85). We propose amendments
to these regulations to better align with the purpose and need
described in the 2016 PEIS. In the 2016 Eagle Rule, the Service sought
to:
(1) increase compliance by simplifying the permitting framework and
increasing certainty;
(2) allow for consistent and efficient administration of the
program by Service staff;
(3) regulate based on best available science and data; and
(4) enhance protection of eagles throughout their ranges by
increasing implementation of avoidance, minimization, and mitigation of
adverse impacts from human activities.
Since implementation of the 2016 Eagle Rule, it has become clear
that the Service's amended permitting structure did not fully achieve
the goals of the 2016 PEIS. For bald eagles, populations have continued
to grow. While this is good news in terms of preserving the species, it
also means that bald eagles are interacting more often with human
activities and infrastructure, resulting in a higher demand for permits
authorizing the disturbance take and nest take of bald eagles. The
current permit framework places an administrative burden on the public
and the Service that is not commensurate with what is
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required to effectively preserve bald eagles. For golden eagles, a goal
of the 2016 Eagle Rule was to increase compliance and improve
consistency and efficiency relating to permitting golden eagle take at
wind-energy projects. However, those goals have not been realized.
While participation in the permit program by wind energy projects has
increased since 2016, it still remains well below our expectations. Low
application rates and permit-processing requirements that some have
perceived as burdensome have resulted in few permits being issued for
wind projects as compared to the number of operational wind projects in
areas where golden eagles occur. As a result, golden eagles continue to
be taken without implementation of conservation actions to offset that
take.
In this rulemaking, we propose a new subpart E for regulations
governing the permitting of eagle take for other interests. We propose
two regulations for administering permitting: specific permits
(proposed Sec. 22.200) and general permits (proposed Sec. 22.210). We
further propose to specify activity-specific eligibility criteria and
permit requirements in four sections based on activity and type of
eagle take:
[ballot] incidental take for permitting wind energy (proposed Sec.
22.250),
[ballot] incidental take for permitting power lines (proposed Sec.
22.260),
[ballot] disturbance take (proposed Sec. 22.280), and
[ballot] nest take (proposed Sec. 22.300).
The specific permit and general permit regulations are the
governing regulations and contain the information that is the same for
all activities and types of take. Currently, multiple different
activities are consolidated into one regulation. This has resulted in
complex and potentially confusing regulations. To improve clarity and
transparency, we propose four additional regulations for these
activities that contain activity-specific provisions beyond the general
requirements for administering specific permits and general permits. We
incorporated most of the existing requirements currently authorized
under Sec. Sec. 22.80 and 22.85 in the proposed subpart E
regulations--the notable exception being the third-party monitoring
requirement, which is currently in Sec. 22.80, which we are not
carrying over for the reasons discussed below.
For clarity and consistency, we also propose to move regulatory
content on permit conditions to a new section (Sec. 22.215) and to
move content on compensatory mitigation standards to a new section
(Sec. 22.220). We propose new definitions to define ``general permit''
and ``incidental take'' and clarifying modifications to the definitions
of ``eagle management unit,'' ``eagle nest,'' and ``in-use nest''
(Sec. 22.6). We propose redesignation of related regulations
pertaining to permit requirements for take of golden eagle nests
(currently at Sec. 22.75 and proposed to move to Sec. 22.325) and
permits for bald eagle take exempted under the Endangered Species Act
(currently at Sec. 22.90 and proposed to move to Sec. 22.400) to a
new subpart E, with only the modification of a non-substantive change
to the section title for proposed Sec. 22.325. Finally, we propose
administrative updates to 50 CFR part 13, General Permit Procedures, to
update the text regarding information collection requirements and the
table of application fees. These proposed changes to the locations of
current regulations are as follows:
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Proposed new
sections in 50
Current regulations now in 50 CFR part 22 Regulatory subject matter CFR part 22,
subpart E
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Sec. Sec. 22.80 and 22.85............................... Specific permits................. Sec. 22.200
General permits.................. Sec. 22.210
Sec. Sec. 22.80 and 22.85............................... Permit conditions................ Sec. 22.215
Sec. 22.80............................................... Compensatory mitigation.......... Sec. 22.220
Sec. 22.80............................................... Wind energy project incidental Sec. 22.250
take.
Sec. 22.80............................................... Power line incidental take....... Sec. 22.260
Sec. 22.80............................................... Eagle disturbance take........... Sec. 22.280
Sec. 22.85............................................... Eagle nest take.................. Sec. 22.300
Sec. 22.75............................................... Golden eagle nest take for Sec. 22.325
resource development.
Sec. 22.90............................................... Bald eagle take exempted under Sec. 22.400
the Endangered Species Act.
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Specific Permits and General Permits for Eagle Take
Specific permits are the current approach to permitting eagle take.
An applicant prepares an application, which is submitted to the
Service. The Service reviews the application and determines whether to
issue a permit. If the Service issues a permit, it includes permit
conditions specific to the project. The Service proposes to retain the
specific-permit approach for situations that have high or uncertain
risks to eagles, thus maintaining an administrative burden that is
commensurate with meeting the preservation standard for eagles.
The Service proposes general permits as an alternative approach to
authorization for projects that meet eligibility criteria. The purpose
of general permits is to simplify and expedite the permitting process
for activities that have relatively consistent and low effects on
eagles and well-established avoidance, minimization, compensatory
mitigation, monitoring, and other permit conditions where take may be
authorized without site-specific analysis. General-permit applicants
would self-identify eligibility and register with the Service,
including providing required application information and fees, as well
as certify that they meet eligibility criteria and will implement
permit conditions and reporting requirements. We will continue to fine-
tune, and consider public input on, eligibility criteria for all
general-permit categories included in this proposed rule to ensure that
general permits effectively simplify and expedite the permit process
for eligible projects while meeting the Eagle Protection Act's
preservation standard. Service review is not required prior to
obtaining a permit. Instead, a general permit is generated using permit
conditions and reporting requirements for the activity. The Service
intends to conduct annual audits for a small percentage of all general
permits to ensure applicants are appropriately interpreting and
applying eligibility criteria. The general-permit approach to
authorizing eagle take requires the same compliance with the Eagle
Act's preservation standard as specific permits but reduces the
administrative burden in obtaining a permit. The
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Service proposes to make general-permit conditions publicly available,
so applicants understand permit requirements prior to application.
The Service proposes using general permits for the following
activities: (1) certain categories of bald eagle nest take, (2) certain
activities that may cause bald eagle disturbance take, (3) eagle
incidental take associated with power-line infrastructure, and (4)
eagle incidental take associated with certain wind-energy projects. We
will use the following mechanisms to ensure that general permits remain
consistent with the preservation of bald and golden eagles: eligibility
criteria, program-scale monitoring, reporting, compensatory-mitigation
requirements, and a program-suspension clause if concern arises
regarding the preservation of eagles. We propose to include Service
monitoring costs necessary to support implementation of the general
permit framework as part of the proposed general permit application and
administration fees. We would use those fees for program-scale
monitoring (in place of current project-scale monitoring required of
the permittee) to verify that the general-permit program is compatible
with the preservation of eagles and to better understand program
impacts. The Service intends to compile information on general permits
issued on an annual basis. This information, in accordance with privacy
laws, may be made available to Tribes, States, and other interested
parties that wish to know more about general-permit activities
occurring in their area. If monitoring or other information indicates
that continuing implementation of a general permit is inconsistent with
the preservation of bald eagles or golden eagles, the Service may
suspend the general program temporarily or indefinitely. This
suspension may apply to all or part of general-permit authorizations.
Consistency With 2016 PEIS
We would implement continued population and program-wide monitoring
and require project-scale reporting conducted by permittees to ensure
that the proposed general-permit program will be consistent with our
eagle preservation standard. Consistent with our 2016 Eagle Rule and
the 2016 PEIS, we will continue to require compensatory mitigation for
any authorized take of eagles exceeding EMU take limits and assess
whether additional compensatory mitigation is necessary to ensure
authorized take in excess of local area population (LAP) thresholds is
compatible with the preservation of eagles. The best available
information indicates that, although golden eagle populations over much
of the United States were stable through 2016, ongoing levels of human-
caused mortality likely exceed levels compatible with maintaining
population stability, potentially substantially. Further increases in
mortality would very likely cause population decline and therefore not
meet the Service's preservation goal of a stable or increasing breeding
population. As a result, the Service will maintain take limits for
golden eagles at zero throughout their U.S. range and require
compensatory mitigation to offset any authorized take of golden eagles.
We will continue to require the current minimum offset ratio of 1.2 to
1 for any authorized killing/injury of golden eagles. This baseline
mitigation ratio appropriately balances our obligations under the Eagle
Act with reasonable, fair, and practicable requirements for permittees.
The 2016 PEIS described how the Service would consider permitted
take at the LAP scale and when compensatory mitigation might be
appropriate. We will continue to track estimates of authorized take
spatially under the general permits and use this information to
identify potential LAPs of concern. In the event an LAP of concern is
identified, the Service would direct Service-approved in-lieu fee
programs to target investments in compensatory mitigation to the LAP of
concern. LAP mitigation is built into the required mitigation cost
under all general permits for wind facilities; thus, the cost of this
mitigation is shared across general permittees. We propose to continue
site-specific evaluation of a project's impacts on eagles for specific
permits.
The 2016 Eagle Rule introduced a requirement that independent third
parties must conduct monitoring associated with long-term permits for
incidental take of eagles. In implementing the 2016 Eagle Rule, this
requirement has proven impracticable to implement at some projects for
a variety of factors, including health, safety, liability, and access
issues for project sites that are leased from multiple private
landowners. The Service proposes to remove this requirement. Instead,
the Service would rely on the requirement in 50 CFR 13.12(a)(5) that
the permittee must certify that the information submitted is complete
and accurate to the best of their knowledge and belief subject to
criminal penalty under 18 U.S.C. 1001. All information submitted with
applications for permits from the Federal Government or required
reports is subject to this statutory provision. Any demonstration or
finding of falsified reports or underreporting will result in general
permit suspension or revocation and referral to the Service's Office of
Law Enforcement. We anticipate reference to this criminal provision
will ensure that permittees provide the Service with accurate
monitoring information without the need to require third-party
monitoring.
The 2016 Eagle Rule, along with the availability of permits with a
tenure up to 30 years, also introduced a requirement that permittees
will participate in permit reviews with the Service at intervals not to
exceed once every 5 years. The Service introduced these mandatory
reviews to ensure that the Service had an opportunity to receive and
review all existing data related to a long-term activity's impacts on
eagles. It was intended that the Service would use this information to,
if necessary, recalculate fatality estimates and authorization levels,
and amend permit conditions such as mitigation requirements. Over the
last several years, the Service has heard complaints from the regulated
community that these scheduled reviews introduced uncertainty into
project planning and funding and have discouraged potential applicants
from participating or have influenced the permit tenure requested by
the applicant. The Service proposes to remove this regulatory
requirement. Removal of these administrative check-ins would increase
certainty for applicants that are concerned about the potential for
unknown amendments to permit conditions every 5 years and is intended
to increase participation in eagle take permitting. The Service instead
intends to hold the amount of take authorized under a long-term
specific permit constant unless the permittee requests an amendment, or
unless the Service determines that an amendment is necessary and
required under 50 CFR 22.200(e). Third parties, including Tribes,
States, and the general public, may contact the Service if they have
concerns about compliance with permit terms at a particular project or
new information that may bear on the conditions of the permit. The
Service may initiate a permit review based on information received from
third parties.
Eagle Incidental Take Permits for Wind Energy
Wind energy facilities incidentally take bald and golden eagles by
injuring or killing eagles that collide with turbines. Applications for
and issuance of permits authorizing incidental take of eagles at wind-
energy projects has not
[[Page 59602]]
kept pace with this rapidly growing industry. While there are more than
1,000 wind-energy projects on the landscape, the Service has received
fewer than 100 applications from those projects and has currently
issued only 26 permits since promulgation of the 2016 Eagle Rule. We
propose amendments to the current regulations to encourage broader
participation in permitting by providing applicants with greater
certainty and simplicity in applying for both general and specific
permits. We anticipate in turn that eagle populations will benefit
significantly from many more projects complying with avoidance,
minimization, and mitigation requirements.
We propose new regulations at 50 CFR 22.250 to authorize the
incidental take of eagles as part of wind-energy project operations.
This proposed regulation would include the provisions of the
regulations currently at 50 CFR 22.80 (permits for eagle take
associated with, but not the purpose of, an activity) that apply to
wind-energy generation activities with revisions. We also propose
general permit eligibility criteria for projects located in areas where
the risk to eagles is lower. We propose these changes to improve
clarity and reduce complexity while retaining the core requirements of
implementing practicable avoidance and minimization measures to reduce
impacts, implementing appropriate compensatory mitigation, and ensuring
the permitted take is compatible with the preservation of bald eagles
and golden eagles. The Service will continue to consider revisions to
our proposed general-permit eligibility criteria and other possible
criteria that meet the preservation standard. With the creation of this
new wind-energy regulation and other regulations described below, we
also propose removal of 50 CFR 22.80.
The Service proposes to use relative eagle abundance as an
eligibility standard for wind-energy general permits. Siting of wind
energy projects in areas where fewer eagles occur remains the best
method to avoid and minimize eagle take. The greater the abundance of
eagles in the area where a project is located, the greater the
likelihood of eagle take. The Service proposes the following relative
abundance thresholds for golden eagles and for bald eagles, below which
a project is eligible for a general permit (table 1). For a project to
be eligible, seasonal eagle abundance at all existing or proposed
turbine locations must be lower than all five thresholds listed. These
relative abundance thresholds were derived using available data from
eBird (eBird is an online database of bird distribution and abundance.
Cornell Lab of Ornithology, http://www.ebird.org). These data are
publicly available and geographically distributed and allow the Service
to establish these eligibility criteria without the need for collecting
site-specific information.
Table 1--Relative Abundance Thresholds for Wind Energy General Permits
------------------------------------------------------------------------
Bald eagle
Period Date range abundance
------------------------------------------------------------------------
1................................. Feb 22-Apr 13....... 1.272
2................................. Apr 12-Sept 6....... 0.812
3................................. Sept 7-Dec 13....... 0.973
4................................. Dec 14-Feb 21....... 1.151
5................................. Average of period 1 1.018
and 3.
------------------------------------------------------------------------
------------------------------------------------------------------------
Golden eagle
Period Date range abundance
------------------------------------------------------------------------
1................................. Feb 15-May 16....... 0.206
2................................. May 17-Sep 27....... 0.118
3................................. Sep 28-Dec 13....... 0.168
4................................. Dec 14-Feb 14....... 0.229
5................................. Average of period 1 0.145
and 3.
------------------------------------------------------------------------
The date ranges reflect the seasons where the species' population
is generally moving or not moving. Periods 1 and 3 are the periods of
movement between the breeding and non-breeding seasons (i.e., spring
and fall migration). Periods 2 and 4 are the periods when the species'
population is generally static during breeding or wintering. Period 5
represents the spring and fall movement periods, pooled together. The
pooled value is included to account for areas that may not experience
the highest use by eagles in spring or fall but cumulatively represent
relatively high use during the combined migration period. Migration
paths and eagle destinations during migration may differ between the
spring and fall. Including each migration period independently and the
average of both by including ``migration'' is a conservative approach
to ensure areas that experience high levels of eagle use across spring
and fall migration cumulatively would be considered high eagle
abundance areas.
We chose relative abundance thresholds during these periods as the
basis for general-permit eligibility because the known life histories
of both species suggest that the local presence of either species may
change dramatically throughout the year as they breed, forage, migrate,
or disperse. We define relative abundance as the average number of
eagles of each species expected to be seen by a qualified person who
observes for eagles for one hour at the optimal time of the day for
detecting the species, and who travels no more than one kilometer
during the observation session. Relative abundance values determined
for a project must be based on publicly available eBird data for bald
eagle and golden eagle abundance. To be eligible, the relative
abundance of eagles at a project location must fall below all the
relative abundance thresholds listed in the eligibility criteria for
each species and season. The Service intends to review eagle thresholds
as new eBird data become available and update thresholds when
appropriate through rulemaking.
To assist project proponents in determining whether they qualify
for general permits based on the relative abundance thresholds listed
above, the Service will offer publicly available, online-mapping
resources depicting areas that qualify (see https://www.fws.gov/regulations/eagle). Applicants that use the Service's published maps
would not have to make the calculations described above. We estimate
that nearly 80 percent of all existing wind-energy turbines in the
coterminous United States are located in areas under the proposed
relative abundance thresholds for both species and thus eligible for a
general permit under this proposal. The Service proposes to not include
Alaska in wind energy general permits at this time because existing
data limit the ability to identify relative abundance thresholds for
Alaska with confidence and there is currently limited wind development
in Alaska and thus low demand for wind energy permits. Thus, at this
time we propose that all wind energy projects in Alaska would have to
apply for specific permits.
Because abundance is a coarse-scale measure for the potential
impacts of a project on eagles, we propose pairing eagle abundance
thresholds with a requirement that projects be sited greater than 660
feet from bald eagle nests and greater than 2 miles from golden eagle
nests to be eligible for a general permit. This additional requirement
provides a protective measure for eagles at a finer, project-level
scale. Previous Service analysis found that breeding golden eagles
regularly range 2 miles from their nest sites. Consequently, projects
sited within 2 miles of a golden eagle nest have an elevated risk of
taking breeding golden eagles or their young fledglings. A 2-mile
buffer is required regardless of nest status because golden eagles
commonly reuse nesting sites across years and can even reoccupy nests
after decades of vacancy. Additionally, the presence of a nest site has
been shown
[[Page 59603]]
to indicate good habitat for golden eagles and correlate with increased
abundance, even if the nest is not in-use. If a new nest is constructed
within 2 miles of project infrastructure after issuance of a general
permit, the permit holder will no longer meet eligibility criteria for
a general permit. The project may continue to operate under the general
permit through the duration of the permit term. However, the project
would no longer be eligible for obtaining future general permits.
We propose a 660-feet buffer from bald eagle nests to avoid
disturbance of nests consistent with what is asked of other project
construction and operation activities. We anticipate that our proposed
relative-abundance threshold would exclude the highest density bald
eagle nesting areas from eligibility for a general permit. We did not
propose a larger buffer distance that would have reduced the likelihood
of collision because of the overall increasing populations of bald
eagles and the increasing number of nonbreeding adult eagles that are
ready to assume vacant territories. Bald eagle populations can sustain
occasional incidental take from wind-energy projects where we propose
to authorize general permits. The Service will further ensure
protection of bald eagles in lower density areas through tracking EMU
and LAP take. To ensure the preservation of eagles, including the
persistence of LAPs, for general permits that require compensatory
mitigation, the Service proposes to require a portion of the eagle
compensatory mitigation credit be pooled and directed to LAPs of
concern.
The Service recognizes the need to address existing projects where
not all turbines are located within an area of relative abundance below
designated thresholds that qualify for a general permit. We propose
defining existing projects to include all infrastructure that was
operational prior to the effective date of the final rule as well as
infrastructure that was sufficiently far along in the planning process
on that date that complying with new requirements would be
impracticable, including if land agreements were already in place, site
preparation was already underway, or infrastructure was partially
constructed. We propose that when a portion of the turbines at an
existing project does not qualify for a general permit, the project
operator must apply for a specific permit, but may request
consideration for a general permit in the specific permit application.
The Service will review the project and will issue a letter of
authorization if we determine it is appropriate to designate that
project as eligible for a general permit. We may refund the specific-
permit application fee, but we will not refund the administration fee.
The Service anticipates issuing a letter of authorization for most
existing projects where only a small percentage of existing turbines do
not qualify under the relative-abundance thresholds or when an existing
project has conducted and provides monitoring data demonstrating
fatality rates consistent with those expected for general permits. The
letter of authorization may require additional compensatory mitigation
requirements if appropriate. During the rulemaking process, we will
consider revisions to the proposed eligibility criteria, as well as
other possible eligibility criteria, such as those analyzed in
Alternative 2 of the draft environmental assessment (DEA). In
Alternative 2, the wind energy general permit eligibility criteria
would require all turbines be greater than one mile from a bald eagle
nest and greater than two miles from a golden eagle nest. There would
be no eligibility criteria based on eagle relative abundance. Our final
rule may include eligibility criteria different from those proposed
here, providing that those criteria are consistent with the Eagle Act
and the current preservation standard.
For both general and specific permits, the Service proposes to
continue requiring implementation of all practicable avoidance and
minimization measures to reduce the likelihood of take. These
conditions would likely include reducing eagle attractants at a site
(e.g., minimizing prey populations or perch locations), minimizing
human-caused food sources at a site (e.g., roadkill, livestock), and
implementing adaptive-management plans that modify facility operations
at a site if certain circumstances occur, such as when a certain number
of eagle mortalities are detected. In developing the permit conditions
and subsequent recommendations and guidance for complying with permit
conditions, we will rely on our regional knowledge and expertise gained
from processing and issuing previous programmatic (see the 2009 Eagle
Rule) and long-term (see the 2016 Eagle Rule) eagle incidental take
permits. General permit conditions will be nonnegotiable and fixed for
the term of the permit. However, any Service revisions to the general-
permit conditions for incidental take of eagles would supersede prior
conditions if a project entity applied for a subsequent general permit.
The Service proposes to continue standardizing certain elements of
specific permit conditions for eagle take to improve transparency and
efficiency while also adapting conditions to unique permit situations
on a case-by-case basis.
The Service proposes retaining a maximum 30-year tenure for
specific permits for wind projects, consistent with current
regulations. This tenure is appropriate given the amount of time that
wind-energy projects are expected to operate on the landscape. Specific
permits may be requested and authorized for any duration (in one-year
increments) up to 30 years. The Service proposes a maximum tenure of 5
years for general permits. Upon expiration, project applicants may
reapply and obtain a new 5-year general permit. We propose that general
permits for eagle take cannot be amended during each 5-year term.
The proposed general permit will require permittees to monitor
eagle take. We propose that project proponents must train relevant
employees to recognize and report eagle take as part of their regular
duties. This monitoring requirement includes visually scanning for
injured eagles and eagle remains during inspections, maintenance,
repair, and vegetation management at and around project infrastructure.
Scans must occur a minimum of once every three months corresponding to
the highest eagle-use, seasonal periods to the maximum extent
practicable. Any dead or injured eagle discovered within the project,
regardless of cause, must be promptly reported to the Service (i.e.,
within 2 weeks). All eagles must be reported, regardless of suspected
cause of death, but may include explanatory information if alternate
cause of death is suspected. The Service will determine whether a given
eagle injury or mortality is attributable to a participating project.
Disposal of eagles must be in accordance with Service instructions,
which may include shipping eagles to the National Eagle Repository or
other designated facility. If a project is located within Indian
Country, the Service may direct eagle remains to be returned to the
Tribe, in accordance with a Tribal Eagle Remains permit. These
requirements are detailed in the general permit conditions under
supplementary materials at https://www.regulations.gov in Docket No.
FWS-HQ-MB-2020-0023.
The Service is aware that this proposed four-eagle threshold under
general permits may not represent the same levels of realized fatality
rates across all generally permitted projects; for instance, some
permittees with projects in denser vegetation or rougher terrain may
have a more difficult time spotting eagle fatalities, resulting in
[[Page 59604]]
fewer reported takes and a greater likelihood of remaining in the
general-permit program. To overcome this, the Service could either (a)
require more rigorous fatality monitoring for all general permits, or
(b) attempt to classify projects based on assumptions about the
probability of detection at each site and require different thresholds
under each classification. The Service did not propose (a) because
requiring such a rigorous level of site-specific monitoring would
undermine the purpose of a general-permit program, or (b) because it
would add significant complexity to the general-permitting process,
which would also undermine the purpose of offering a general-permit
option. Both options would also be much more costly. We encourage
public comment on these proposed general-permit, detected-take
thresholds.
If three bald-eagle injuries or mortalities, or three golden-eagle
injuries or mortalities attributable to the project are discovered at a
project during the 5-year general permit tenure, within 2 weeks of this
discovery the permittee must provide the Service with an adaptive
management plan. The permittee would specify which avoidance and
minimization measures it will implement in the short term (after
finding the remains of a third eagle of a species) and which it will
implement if remains of a fourth eagle of that same species is found.
If an injury or mortality of a fourth eagle of that species
attributable to the project is discovered, the permittee must again
notify the Service of that discovery within 2 weeks and confirm that it
will implement the avoidance and minimization measures outlined in the
adaptive management plan, including any modifications to the plan. The
project may continue to operate under the general permit if the
permittee implements its adaptive management plan through the duration
of the permit term. However, the project would no longer be eligible
for obtaining future general permits. The permittee may request
reconsideration as authorized under 50 CFR 13.29, including a
description of extenuating circumstances. Otherwise, the project
proponent would have to apply for a specific permit for eagle take.
The purpose of including this discovered-eagles provision in
general permits is so the Service can identify what should be the rare
wind project that qualifies for a general permit but, based on realized
take, ought to have gone through the more rigorous specific permit
process. By requiring notification from projects operating under
general permits if three and four eagles are found, we seek to ensure
that the overall take authorized by the general-permit program remains
within the range we predict and is appropriately offset to the degree
necessary for the species' preservation. It is important to note that
the finding of eagle remains at any project represents only the minimum
number of eagles that may have been killed by a project. Depending on
the probability of detection, which is determined by such factors as
site topography and vegetation, the number of eagles actually taken may
be close to the number of eagles found, or the number actually taken
could be substantially higher than the number found. We anticipate that
the operations and management staff conducting the monitoring as
outlined in the proposed general permit conditions will detect
approximately 15-20 percent of all eagles injured or killed at an
average project. If four eagles are discovered at this detection rate,
we estimate that as many as 16-23 eagles may have gone undiscovered.
This estimate, based on a proposed detection rate of 15-20 percent and
four eagles found, is comparable to the number of eagles we estimate
(conservatively; see appendix A) will be taken at projects that are
only eligible for specific permits over a 5-year period (because of the
conservative nature of our take estimates, many projects will take
substantially fewer than these projected numbers of eagles). For these
reasons, discovered take of four golden eagles or four bald eagles
appropriately distinguishes between projects that we intend to cover
under general permits and higher risk projects that are better managed
under specific permits.
Projects that receive general permits and reach the four-eagle
threshold for either species will have shown evidence that they are
taking eagles at a rate consistent with projects eligible for specific
permits. We estimate that the average 100-turbine project that
qualifies for a specific permit will take approximately 6.9 golden
eagles per year (at the 80th quantile), or approximately 35 golden
eagles over a 5-year period, and approximately 1.6 bald eagles per year
(at the 60th quantile), or approximately 8 bald eagles over a 5-year
period (see the DEA for additional information and methodology), Note
that we expect the average wind project receiving a specific permit
will take fewer bald eagles than golden eagles. Based on this, we
considered making the detected-take threshold for general permit
removal lower for bald eagles than it is for golden eagles. However,
given the increasing and relatively robust nationwide populations of
bald eagles, we concluded that it was not appropriate to make this
threshold lower for bald eagles than for golden eagles. Thus, we set
the threshold for general permit removal at the same level for bald
eagles as we did for golden eagles.
We propose an administration fee for wind-energy general permits to
cover the unique costs of implementing the general-permit program for
wind-energy projects. The project-level monitoring required of general
permittees is not adequate on its own to administer the program. The
administration fee would be included in the application fee and cover
the costs to the Service to perform more rigorous systematic fatality
monitoring on a program-wide basis to ensure the preservation of eagles
instead of individual applicants being required to fund and conduct
more rigorous fatality monitoring on every project. By utilizing a
systematic approach to fatality monitoring, not every site has to be
surveyed every year, which reduces costs to the regulated community.
The Service proposes a fee of $525 per turbine per year or $2,625 per
turbine for a 5-year permit to cover the costs of this systematic
monitoring.
To complete this systematic fatality monitoring program, the
Service must have reasonable access to wind-energy projects. As part of
their participation in the general permit program, project proponents
will consent to allow systematic monitoring at their projects by
Service staff or Service contractors. The Service would negotiate the
logistics of access to project sites with the permittee. Service
monitoring data will be used to inform EMU and national estimates of
take rates and is not intended to assess project-by-project compliance
under the general-permit program. To ensure the general accuracy of
estimates and tracking of take over time, we may use project-scale
monitoring with a standardized approach, such as randomized and
stratified monitoring by relevant factors such as geography, project
size, and eagle abundance. The Service will use the information
collected through programmatic monitoring to (1) ensure the general-
permit program is compatible with the preservation of eagles by
assessing overall eagle mortality at the EMU and LAP scale and (2)
inform all relevant aspects of the administration of the program to
guide future regulatory and implementation policy revisions.
For general permits for wind-energy activities, the Service
proposes
[[Page 59605]]
authorizing the incidental take of bald eagles and golden eagles
without authorizing a specific number of eagles on the face of the
permit. Wind energy activities pose risks to both species of eagles at
large geographic scales and over long periods of time. To enable the
development of an efficient general permit, we propose to authorize the
take of both species for each general permit.
The Service will require offsetting compensatory mitigation at a
fixed rate for each EMU. This rate will be in the form of eagle credits
per cubic kilometer of hazardous volume (rounded to thousandths). The
Service calculated the appropriate rates based on estimated take across
all general permits, the Service's required 1.2:1 ratio for golden
eagles, and a component designed to offset authorized take at the LAP
scale should that be necessary. By scaling compensatory mitigation cost
to hazardous volume, we would require compensatory mitigation that is
proportionate to a project's potential impacts on eagles, which could
also encourage broader participation in the program, particularly
smaller projects. The Service considered a flat-fee approach where all
projects are responsible for the same fee regardless of size; however,
we were concerned about the cost disincentive to smaller projects.
Wind-energy projects operating under a general permit must obtain eagle
credits to the nearest tenth of an eagle for every cubic-kilometer of
hazardous volume of the project from a Service-approved conservation
bank or in-lieu fee program at the following rates:
[ballot] Atlantic/Mississippi EMUs: 6.56 eagles/km\3\;
[ballot] Central EMU: 7.88 eagles/km\3\; and
[ballot] Pacific EMU: 11.48 eagles/km\3\.
These different rates reflect the different abundances and modeled
fatality rates of golden eagles and bald eagles in each EMU. Records
must be kept to document compliance with this requirement and provided
to the Service upon request or upon submission of each annual report.
In accordance with the 2016 PEIS, the Service-approved in-lieu fee
programs must provide credits for authorized eagle take within the same
EMU where the permitted take occurs, unless reliable data support that
compensatory mitigation performed outside the EMU will similarly
protect the affected population. Service-approved in-lieu fee programs
may be directed by the Service to provide credits in a particular LAP
if LAP concerns arise during periodic reviews of the general permit
program.
For specific permits for eagle take by the wind industry, the
Service will include a fatality estimate for each project based on the
best available information and published procedures. From that fatality
estimate, the Service will specify the number of eagle credits that
must be obtained from a Service-approved conservation bank or in-lieu
fee program or implemented by the permittee under a Service-approved
mitigation plan.
Eagle Incidental Take Permits for Power Lines
The Service proposes a general-permit option for power lines at 50
CFR 22.260. Multiple power-line entities have expressed interest in
obtaining an eagle incidental take permit, and we have sufficient
understanding of how eagles interact with power lines to develop a
general permit appropriate for this industry. We propose a general
permit for eagle take resulting from power-line infrastructure. We
would retain provisions for a specific permit for power-line entities
that qualify but do not wish to obtain a general permit or have been
notified by the Service to obtain a specific permit.
We propose that the general permit for power-line entities will
require the following six conditions:
First, all new construction and reconstruction of pole
infrastructure must be electrocution-safe for bald eagles and golden
eagles, except as limited by human health and safety. ``Electrocution-
safe'' means a pole configuration designed to minimize the risk of
eagle electrocution (1) by providing sufficient separation between
phases and between phases and grounds to accommodate the wrist-to-wrist
or head-to-foot distance of eagles, or (2) by covering exposed parts
with insulators to physically separate electricity from birds. If
insulators are used, they must be in good condition and regularly
maintained. Buried lines are considered ``electrocution-safe.'' We
recommend buried lines when feasible because they completely eliminate
the risks of electrocution, collision, and shooting.
Second, all new construction and reconstruction of transmission
lines must consider eagle nesting, foraging, and roosting areas in
siting and design, as limited by human health and safety. We recommend
utility infrastructure siting at least 2 miles from golden eagle nests,
660 feet from a bald eagle nest, 660 feet from a bald eagle roost, and
1 mile from a bald eagle or golden eagle foraging area. Within each of
these distance ranges, we expect elevated eagle use and increased risk
of interaction with power and transmission line infrastructure.
Third, a reactive retrofit strategy must be developed that governs
retrofitting of high-risk poles when an eagle electrocution is
discovered. A reactive retrofit strategy responds to incidents in which
eagles are killed or injured by electrocution. The reactive retrofit
strategy must include how electrocutions are detected and identified.
Poles selected for retrofits must be based only on risk to eagles,
regardless of other factors, such as convenience to the permittee. The
permittee must retrofit the pole that caused the electrocution, unless
the pole already provides sufficient separation by design or is fully
insulated by insulators in good condition. The permittee must retrofit
a total of 11 poles or a half-mile segment of poles, whichever is less.
The most typical pole selection would be the pole that caused the
electrocution and five poles in each direction. However, if it is
better for eagles for the project proponent to retrofit other poles in
the circuit that are not electrocution-safe, those poles may be
retrofit, prioritizing the least safe poles most adjacent to the
electrocution. Poles outside of the circuit that caused the
electrocution may be retrofit only if all poles in the circuit are
already electrocution-safe. The Service estimates that retrofitting 11
power poles of high risk to eagles offsets the take of one eagle over
30 years at a ratio of 1.2:1. This estimate assumes that the permittee
implements mitigation immediately and retrofits remain effective for 30
years.
Fourth, a proactive retrofit strategy must be developed and
implemented to convert all existing infrastructure to be electrocution-
safe, prioritizing poles that the permittee identifies as the highest
risk to eagles. The permittee must establish annual targets for pole
retrofits that result in the con version of one-tenth of non-
electrocution-safe infrastructure to electrocution-safe by the
expiration of the 5-year general permit term.
Fifth, a collision-response strategy must be implemented for all
eagle collisions with power lines. If an eagle collision is detected, a
strategy must outline the steps to identify and assess the collision,
consider options for response, and implement a response. The assessment
should include the species, habitat, daily, and seasonal migration
patterns, concentration areas, and other local factors that might have
contributed to the collision. The response options should consider
eagle collisions in the engineering design (e.g., burying the line,
rerouting the line, or modifying the line to reduce the number of
wires), habitat modification,
[[Page 59606]]
and marking the line. Sixth, an eagle-shooting-response strategy must
be developed and implemented when an eagle shooting is discovered near
power-line infrastructure. To be clear, it is not the fault of the
power-line entity when eagles are illegally shot on power-line
infrastructure. However, it benefits both eagles and the power-line
entity to reduce shooting at eagles and other migratory birds on power-
line infrastructure. Shooting eagles on power-line infrastructure can
also reduce reliability of power delivery as stray ammunition can
damage infrastructure. The strategy should outline the steps to
determine whether discovered eagles have been shot or electrocuted and
may include necropsying eagles at a qualified laboratory to determine
the cause of death if necessary. If shooting is identified, the
strategy would outline options for response. This response should
include notifying the applicable Service Office of Law Enforcement.
However, the Service also encourages power-line entities to develop
other response options, such as offering incentives for information
regarding eagle shooting incidents on power-line infrastructure,
practicable access restrictions, or burying lines. This proposal would
be a new request of the power-line industry, and the Service is seeking
creativity and ingenuity as power-line entities and the Service work
together to address this leading cause of eagle mortality.
If possible, applicants would create one plan with the strategies
described above: incorporating eagles into new equipment design and
siting, reactive and proactive retrofit strategies, a collision-
response strategy, and an eagle-shooting-response strategy. For
example, many power-line entities currently operate under avian
protection plans (APPs), in which most of these elements already exist.
For entities that currently have APPs, we expect applying for this
general permit would require relatively minor additions and
modifications. The Service would not require the applicant to submit
this information when applying for a general permit, but it must be
provided upon request.
We propose a tenure of 5 years for general permits. Applicants may
apply for a new general permit at the end of the 5-year term. We
propose a monitoring requirement that would require power-line entities
to train relevant employees to recognize and report eagle take as part
of their regular duties. This activity would include visually scanning
for injured eagles and eagle remains during inspections, maintenance,
repair, and vegetation management at permitted infrastructure. You must
immediately notify the Service of any eagle discovered near power-line
infrastructure, regardless of cause. We propose to require submission
of an annual report of eagles discovered to the Service.
We propose a general-permit administration fee of $5,000 for each
State for which the power-line entity is seeking authorization. We
propose to use the number of States as the relevant factor to scale the
administration fee to the size of the power-line entity's operations.
The administration fee will be used to monitor the general-permit
program. We do not propose requiring additional off-setting
compensatory mitigation beyond reactive and proactive retrofits for
general permits for power lines. Under the current PEIS, off-setting
compensatory mitigation is required only for golden eagle mortality
caused by infrastructure installed on or after the 2009 baseline
conditions. Mortality on pre-2009 infrastructure is considered part of
the baseline and is not applied to EMU take limits. With the wide
availability of the guidelines developed by the Avian Power Line
Interaction Committee (Suggested Practices for Avian Protection on
Power Lines (2006) and Reducing Avian Collisions with Power Lines
(2012)), the Service estimates that power-line infrastructure installed
after 2009 takes relatively few eagles.
Conversely, the Service estimates significant benefits will accrue
to golden eagles from implementing the measures required as part of the
proposed general-permit conditions. The Service estimates that
approximately 500 golden eagles are killed annually as a result of
electrocutions. Approximately 600 more die from collisions, a portion
of which are probably collisions with powerlines (USFWS 2016; Millsap
et al. 2022 (in press)). We expect that the proposed combination of
requiring new power lines to be electrocution-safe, reconstruction of
old power lines to make poles electrocution-safe, the creation and
implementation of a reactive retrofit strategy, and the creation and
implementation of a proactive retrofit strategy will be an effective
approach to reducing the take of eagles on power-line infrastructure
across the landscape over time. We expect that these approaches to
reduce take at older infrastructure will more than offset take
occurring on non-electrocution-safe poles constructed after 2009--the
baseline year after which we require compensatory mitigation for golden
eagle take for new construction. Therefore, the Service anticipates a
net benefit to eagles from utilities participating in the general
permit program as proposed and is not proposing to require additional
compensatory mitigation for this type of permit.
Furthermore, illegal shooting of eagles kills approximately 670
golden eagles per year (Millsap et al. 2022). We expect that power-
line-industry assistance in reducing illegal shooting could
significantly advance golden-eagle preservation, although we cannot
currently quantify the expected magnitude of that benefit.
Eagle Disturbance Take Permits
More than two-thirds of the eagle take permits the Service
currently issues are for incidental disturbance due to activities
conducted near bald eagle nests. The current regulations at 50 CFR
22.80 govern both disturbance take and incidental killing of eagles.
Accommodating the substantive difference in effects to eagles from
these two different types of take has created an overly complex
regulation. Therefore, we propose to authorize the incidental
disturbance take of eagles in a new stand-alone regulatory section, 50
CFR 22.280. This proposed regulation extracts portions of the existing
regulation (50 CFR 22.80) that relate to disturbance take. This
proposed change will reduce the complexity of the current regulation,
making permitting of incidental disturbance of eagles clearer and
easier to understand. We also propose to clarify what does and does not
constitute disturbance.
The Service proposes to retain the existing definition of
``disturb'' (50 CFR 22.6). We propose authorizing disturbance of bald
eagles under general permits for most activities currently described in
the 2007 Activity-Specific Guidelines of the National Bald Eagle
Management Guidelines (hereinafter the ``Guidelines''). In 2009,
following the delisting of the bald eagle from the Endangered Species
Act, the Service published the Guidelines to help landowners and
project proponents avoid disturbing breeding bald eagles when
conducting activities near nest sites. The Guidelines created activity
categories A-H, which we generally propose to adopt as eligibility
criteria for general permits for eagle disturbance take. These
categories include construction activities, linear utilities,
alteration of shorelines, vegetation and timber practices, motorized
recreational activities, nonmotorized recreational activities, aircraft
operations, and blasting and other loud noises. At this time,
disturbance caused by agriculture, mining, and oil and gas operations
will
[[Page 59607]]
not be eligible for general permits, as requests for these activities
have been received infrequently and standard avoidance and minimization
measures have not yet been developed. Operators of these and other
activities may apply for specific permits.
Between publication of the Guidelines in 2007 and nationwide eagle
population surveys in 2018, we estimate that bald eagle populations
have quadrupled in the Lower 48 United States (USFWS. 2021. Final
Report: Bald Eagle Population Size: 2020 Update. December 2020.
Division of Migratory Bird Management, Washington D.C. U.S.A.). This
includes growth into environments that are developed or in the process
of being developed, increasing the demand for permits for eagle
disturbance. The demand for eagle-disturbance take permits has placed a
significant administrative burden on the regulated public and the
Service.
However, a recent analysis of monitoring reports submitted under
nest-disturbance permits reveals that most bald eagles with breeding
territories permitted for disturbance do not, in fact, end up being
disturbed by permitted activities when avoidance and minimization
measures are followed. Rather, the success rates of populations subject
to a high prevalence of disturbance permits do not appear to differ
significantly from bald eagle breeding populations subject to few or no
disturbance permits. Therefore, the Service proposes reducing the
administrative burden to the public and the Service by creating a
general permit for common activities. We estimate that the general-
permit-eligibility criteria proposed will address more than 85 percent
of the demand for eagle disturbance permits. We propose standardized
avoidance and minimization measures to reduce the disruptive impacts
from these activities based on our experience since 2009 with
permitting eagle disturbance. The Service proposes requiring specific
permits for all other activities that may cause disturbance take of
bald eagles and any activity that may cause disturbance take of golden
eagles.
We propose to retain the tenure of 5 years for specific permits for
incidental disturbance. However, we propose limiting the tenure of
general permits for incidental disturbance to one year, expiring at the
beginning of the regional breeding season. Permit conditions will
include the applicable start dates. General permits could be renewed
for subsequent years for activities conducted longer than 1 year. The
Service proposes to continue to require monitoring as appropriate for
both specific and general disturbance permits. Monitoring would be
standardized for general permits and required as necessary to evaluate
whether disturbance occurs by determining the effects of general
permitted activities on eagle nest outcomes, such as a single report of
whether the nest does or does not fledge young.
For both specific and general disturbance permits, we propose to
require that applicants provide the coordinates of the nest(s) for
which they are requesting disturbance authorization. Precise location
information is necessary for both the Service staff who conduct eagle
population management and law enforcement. For both specific and
general permits, we propose permit conditions that include
implementation of measures to avoid and minimize to the extent
practicable the risk that authorized activities disturb breeding bald
eagles. To determine practicability, the Service will consider eagle
population status, the known efficacy of the measure, and the potential
burden to the permittee. For specific permits, applicants will have the
opportunity to provide input into these permit conditions; however,
conditions for general permits will be standardized for all disturbance
take of that type of activity and designed to achieve compliance with
the standard conditions in these proposed regulations. General permit
conditions include effective techniques that have been consistently and
successfully used in specific permits for the past 10 years or more.
The Service expects the streamlined general-permit-application
process for authorizing disturbance will significantly reduce
compliance burdens for project proponents. The application process for
disturbance permits has often challenged the capacity and means of some
project proponents, particularly homeowners who cannot afford the
services of environmental consultants. A general permit will also
increase transparency and certainty for project proponents and the
public. With standardized authorizations and requirements for
disturbance, proponents will know precisely what restrictions may apply
to their activity allowing greater certainty during project planning.
The public, too, will have a greater understanding of the
responsibilities and obligations of permitted projects in their area.
Through this general permit process, the Service will continue to
sustainably manage bald eagles and potentially benefit populations
through the agency's ability to redirect resources to other, more
significant, conservation concerns.
As part of this rulemaking, the Service proposes clarifying when
disturbance is likely to occur and when obtaining a permit is
advisable. The topic of when a permit is necessary for disturbance of
breeding eagles has generated confusion among the regulated community
and the public in general. Based on its experience in processing
disturbance permits since 2009, the Service has determined that certain
activities are unlikely to result in disturbance.
We propose to clarify that using non-lethal methods to disperse
eagles away from a site, known as hazing, does not constitute eagle
disturbance in most circumstances and does not require a permit. Eagle
hazing is most often necessary at airfields, landfills, and livestock
or poultry farms. The intent of hazing is to deter eagle depredation
(i.e., substantial injury to wildlife or agriculture) or reduce threats
to human or eagle health and safety by temporarily displacing
individual eagles from a location. In over a decade of annual reports
from eagle depredation permits authorizing hazing of eagles, the
Service has found no evidence that hazing results in disturbance of
eagles, as defined. In other words, hazing is not known to cause injury
to eagles, nest abandonment, or a decrease in productivity at eagle
nests when conducted away from in-use eagle nests. In the several
national and regional GPS telemetry studies of golden eagles, we are
aware of no golden eagle injury or mortality arising from hazing.
Therefore, we propose that eagle hazing does not constitute disturbance
unless it is adjacent to an in-use nest sufficient to disrupt eagle
breeding activity. The Service will continue to recommend a buffer
distance for hazing activities conducted near in-use nests that
reflects the latest information available. We currently recommend a
buffer distance of 660 feet.
We also propose to clarify that activities conducted adjacent to a
communal roost or foraging area do not constitute eagle disturbance and
do not require a permit. ``Communal roost site'' and ``foraging area''
are defined by regulation (50 CFR 22.6). In our 2007 Guidelines, we
stated that human activity near communal roost sites or foraging areas
could prevent eagles from feeding or taking shelter, thus resulting in
disturbance take. However, since publication of the Guidelines, we have
received little to no documentation that confirms take from activities
near roosts, particularly bald eagle roosts.
[[Page 59608]]
Temporary or permanent impacts to an individual communal roost site may
displace eagles but are unlikely to cause death of or injury to eagles
or affect the breeding, feeding, or sheltering of eagles to a degree
that qualifies as disturbance. Therefore, we propose to clarify that
activities adjacent to communal roosts do not constitute disturbance.
Removal of a foraging area has greater potential to cause disturbance;
therefore, we propose to clarify that activities that fully prevent use
of a foraging area may cause disturbance and the project proponent
should apply for a specific permit, particularly if the activity will
remove all foraging opportunities within one mile of an in-use nest.
We may deny permit applications for disturbance take of eagles
where we determine that disturbance is unlikely to occur. The Service
also proposes to clarify that activities in compliance with the
Service's current guidance are unlikely to result in disturbance and do
not require a permit. As bald eagle populations continue to grow, the
Service will focus permitting for nest disturbance on activities that
are moderately to highly likely to result in disruption of breeding
activity to the degree that it is likely to result in disturbance.
Eagle Nest Take Permits
We propose eagle nest take regulations at 50 CFR 22.300 to
authorize the take of eagle nests. This proposed section would update
the existing regulations pertaining to removal of eagle nests (50 CFR
22.85) to include a general permit option. We also propose the
following modifications to these regulations: (1) clarify that
obstruction of a nest constitutes nest take; (2) establish a 1-year
maximum tenure for general permits for nest take; and (3) add a
justification for authorizing the take of eagle nests to protect
threatened or endangered species.
We propose the eagle nest take regulation to include relocation or
obstruction of nests. Relocation of all or part of an eagle nest to a
new location can be an appropriate alternative to destroying the nest,
especially for bald eagles. Placement of an obstruction in an eagle
nest, such as a traffic cone, can be an effective technique to prevent
use of a nest. Obstructions can be used permanently if a nest is unsafe
or otherwise difficult to remove. Obstructions can also be used
temporarily to prevent the use of a nest adjacent to a temporary
activity, allowing eagles to return in future years after completion of
the activity.
Currently, the Service authorizes eagle nest take for four
purposes: emergency, health and safety, removal from human-engineered
structures, and other purposes (50 CFR 22.85(a)(1)(i) through (iv)).
The Service proposes authorizing general permits for nest take only for
bald eagles and only for the first three of the current justifications
(50 CFR 22.85(a)(1)(i) through (iii): emergency, health and safety, and
human-engineered structures). As described above, bald eagle
populations have grown significantly since publication of the 2009
Eagle Rule, and populations continue to grow. Additionally, after more
than 10 years of issuing permits to remove bald eagle nests, the
Service has developed standard permit conditions that can be applied to
authorizing the take of bald eagle nests using general permits. We will
continue to require specific permits for any take of golden eagle nests
because of the population status of golden eagles. We will also
continue to require a specific permit for take of eagle nests under the
``other purposes'' justification (current regulation at Sec.
22.85(a)(1)(iv)) because the Service must ensure that those permits
provide a net benefit to eagles. This determination must be made on a
case-by-case basis and depends on the circumstances of the other
purpose requiring nest take. However, we propose to make one exception
to this specific-permit requirement for other purposes by authorizing a
general permit only in Alaska for bald eagle nest take for other
purposes (currently 50 CFR 22.85(a)(1)(iv)). In Alaska, the Service has
already developed and implemented standard conditions to meet these
requirements considering the robust Alaska bald eagle population.
The Service proposes adding a fifth justification for authorizing
the take of eagle nests when necessary for the protection of species on
the List of Endangered and Threatened Wildlife (50 CFR 17.11) under the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1544). This
activity would require a specific permit. With expanding bald eagle
populations, the Service foresees situations arising where the take of
an eagle nest may be necessary for the recovery of a threatened or
endangered species. Examples include transmitters from threatened
marbled murrelets found in bald eagle nests and bald eagles attacking
endangered whooping cranes. As many seabird and waterbird populations
continue to decline and bald eagle populations continue to increase,
the Service anticipates an increase in situations where bald eagle
management may be a necessary part of implementing recovery plans.
Moreover, nest take is an important tool that can reduce the need for
other types of take, such as trap-and-relocate or lethal removal.
We propose to retain the tenure of 5 years for specific permits
along with the ability to authorize the take of multiple nests.
However, we propose limiting the tenure of general permits to a maximum
of 1 year, expiring at the beginning of the regional breeding season.
Permit conditions will include the applicable regional breeding season
start date. Additionally, the general permit would authorize the
removal of one specific nest. The general permit would also authorize
removal of subsequent nesting attempts on the same nesting substrate
and within one-half-mile of that location for the duration of the
permit if the subsequent nests recreate the emergency, safety, or
functional hazard that the permittee certified applied to the original
nest. However, additional general permits would be required to remove
subsequent nesting attempts more than one-half-mile away. We propose
these reduced tenure and permit-per-nest requirements to better ensure
general permits for nest take are compatible with the preservation of
eagles.
For both specific and general nest-take permits, applicants must
provide the coordinates of the nest(s) they are requesting to take.
Precise location information is necessary for both the Service staff
responsible for eagle population management and for law enforcement. To
ensure consistency with the Eagle Act, applicants for both specific and
general nest-take permits must certify which of the eligibility
criteria they meet and certify that there is no practicable alternative
to nest removal that would protect the interest to be served. Finally,
applicants for both specific and general permits must agree to
implement permit conditions. Specific-permit applicants may provide
input into these permit conditions; however, general-permit conditions
will be standardized for all general permits of that type. General-
permit conditions represent effective techniques that have consistently
and successfully been used in specific nest-take permits for the past
10 years or more.
Currently, the Service typically requires permittees to monitor the
area near where the nest was removed for one or more seasons to
determine whether the affected eagles relocate and successfully fledge
young. We propose retaining the possibility of requiring monitoring
under specific permits on a
[[Page 59609]]
case-by-case basis. However, given current knowledge and the population
status of bald eagles, we do not propose to require monitoring for
general permits. After more than a decade of annual monitoring reports,
a one-year permit tenure is expected to better capture the necessary
information to meet the preservation standard than requiring monitoring
and is less burdensome to the applicant. However, by reducing the level
of monitoring and reporting, the Service could lose the potential to
make case-specific determinations on the likelihood of lost breeding
productivity. Therefore, we will conservatively assume that each nest
take authorized by the general permit will result in a loss of breeding
productivity for one breeding season. We may change this practice in
the future if data warrants a change in our assumption.
The Service does not propose compensatory mitigation for nest-take
general permits. General permits for nest take are limited to bald
eagle nests in the following circumstances: emergency or human or eagle
safety situations, or when constructed on human-engineered structures.
These situations are typically hazardous to eagles, so that eagles also
benefit from resolving the situation. Compensatory mitigation is not
considered warranted for this reason and because of the population
status of bald eagles. The Service proposes to continue requiring
compensatory mitigation for specific permits that authorize nest take
for golden eagles or when needed to meet the net-benefit requirement.
Compensatory mitigation for specific permits will be scaled to the
permitted take and the population status of the species for which nest
take is requested. A specific permit applicant may meet this
requirement by obtaining the Service-approved amount of eagle credits
from a Service-approved conservation bank or in-lieu fee program. The
applicant may also propose other types of compensatory mitigation for
Service approval.
Changes to Definitions
As part of this rulemaking, we propose narrowing the definition of
``eagle nest'' to exclude nest structures on failed nesting substrate.
Currently, we define ``eagle nest'' to mean any assemblage of materials
built, maintained, or used by bald eagles or golden eagles for the
purpose of reproduction. We propose adding the qualification that it
must be possible for eagles to reuse the nesting substrate for breeding
purposes. Nesting substrate that, due to natural circumstances, is no
longer and will never again be available to eagles for functional use
will no longer meet the regulatory definition of an eagle nest. We
propose revising this definition to address uncommon but occasional
instances in which eagle nests or nesting substrate are impacted by
weather or other natural factors to such a degree that they become
permanently unusable to eagles for reproductive purposes. For example,
if a nest tree falls and the bald eagle nest retains its structure, the
nest would no longer retain the official designation of an eagle nest
as the substrate was substantively changed by the nest tree falling.
Individuals and organizations may destroy and remove, without a permit,
materials that formerly held the designation of an eagle nest but no
longer meet the definition based on utility. However, individuals and
organizations may not possess or collect these materials beyond what is
necessary to dispose of the nest. Eggs, feathers, and other eagle parts
are often naturally incorporated into nests with time. The Eagle Act
prohibits possession, transportation, and sale of these items, either
individually or in their incorporated state with former nesting
materials, without Federal authorization.
This proposed definition of ``eagle nest'' does not allow for
modification of alternate (unused) nest substrate to a degree that
prevents future breeding activity. Such activities will continue to
constitute nest take.
We also propose revising the definition of ``in-use nest'' to
clarify that the eggs referred to in the definition of in-use nest must
be viable. As with our proposed revision of the definition for ``eagle
nest,'' we intend this change to ensure our definition is more relevant
to what is biologically important to eagles. Nonviable eggs may persist
in a nest or even become incorporated into a nest's structure. However,
by their nature, these eggs have no promise of hatching. Under current
definitions, permittees have been prevented from removing what is
otherwise an alternate nest because of the presence of nonviable eggs.
In implementing the revised definition, we would presume that eggs are
viable unless documented evidence (e.g., absence of adults for several
days, presence out of season) indicates otherwise.
For clarity, we propose adding a definition of ``general permit''
to 50 CFR part 22 to distinguish general permits from the definition of
``permit'' in 50 CFR 10.12. We interpret the statutory language
requiring a permit to be procured from the Service for take of bald
eagles for any purpose to include general permits proposed in this
document as well as the more typical individual or specific permits
(see 16 U.S.C. 668a).
We propose clarifying in the regulation pertaining to illegal
activities (50 CFR 22.12) that obtaining an eagle permit of any type
for a continuing activity does not in and of itself resolve take that
occurred before issuance of the permit. This provision is currently in
Sec. 22.80(e)(8) but applies to all of the regulations in part 22 and
is therefore better located in Sec. 22.12.
We propose updating the definition of ``eagle management unit'' to
include the current boundaries for those units to improve transparency
to the public and general permit applicants. We also propose adding a
definition of ``incidental take,'' as this term is used throughout
these regulations and not defined.
Changes to Fees
The Service proposes to retain the existing fees for specific
permits with the following exceptions (proposed Sec. 13.11(d)(4)). The
administration fee will be charged at the same time as the application
fee. Thus, the cost of the Specific Permit, Eagle Incidental Take, is
adjusted from $36,000 in the application fee column to a $28,000
application fee and $8,000 administration fee. Additional $8,000
administration fees are currently required every 5 years as part of a
5-year permit reviews. We propose replacing 5-year permit reviews with
as-needed permit reviews and requiring the $8,000 administration fee if
significant changes are required as a result. Potential modifications
that are likely to require this administration fee include updates to
authorized take, reevaluation of compensatory mitigation requirements,
evaluation of impacts of a new project size or arrangement (e.g.,
increased hazardous volume), or additional environmental review. The
$500 amendment fee would be charged for substantive amendments to
permit conditions that do not result in the significant changes that
require an administration fee. Otherwise, permitting fees for specific
permits remain unchanged.
The Service proposes to create a fee structure for general permits
(proposed Sec. 13.11(d)(4)). The application fee and administration
fee would be charged at the time of application. We do not propose
amendment fees as the automated nature of general permits would make
substantive amendments unnecessary. We separate application and
administration fees due to the different functions these fees serve.
[[Page 59610]]
Application fees pertain to processing a particular application whereas
administration fees pertain to administering the permitting program as
a whole. Consistent with this distinction, we propose not to waive
administration fees when multiple permits are consolidated into a
single permit (50 CFR 13.11(d)(2)) or for government agencies (50 CFR
13.11(d)(3)). Pooled administration fees are necessary for us to
administer the program as a whole and loss of those fees would
jeopardize our ability to implement the proposed general-permit
structure.
Administrative Changes
Finally, the Service proposes the following administrative changes
to the organizational structure of our eagle-take-authorization
regulations to improve clarity. To reduce confusion, we propose
redesignating the current subpart C ``Specific Eagle Permit
Provisions'' as ``Eagle Possession Permits.'' We propose creating a new
subpart E pertaining to ``Take of Eagles for Other Interests.'' This
subpart will house regulations that authorize permits for the taking of
eagles for the protection of other interests in any particular
locality. We propose relocating the current regulations at Sec. 22.75
(What are the requirements concerning permits to take golden eagle
nests?) to Sec. 22.325 in subpart E and giving the section a new
heading pertaining to golden eagle nest take for resource development.
We also propose relocating the current regulations at Sec. 22.90
pertaining to permits for bald eagle take exempted under the Endangered
Species Act to Sec. 22.400 in subpart E.
Public Comments
The public comment period begins with the publication of this
document in the Federal Register and will continue through the date set
forth above in DATES. We will consider all comments on the proposed
rulemaking and draft environmental review that are received or
postmarked by that date. Comments received or postmarked after that
date will be considered to the extent practicable. Federally recognized
Native American Tribes can request government-to-government
consultation via letter submitted at any time during this rulemaking
process.
The Service is interested in public comments on all aspects of the
proposed rule. Comments that were submitted on the ANPR were considered
in the preparation of this proposed rule, are included in the
rulemaking docket, and do not need to be resubmitted. In addition, the
Service is specifically seeking information on the following:
1. Are the anticipated number of annual permits to be issued for
each permit type a reasonable estimate?
2. Are the costs associated with each permit type reasonable
estimates?
3. For electric utilities, at what rate are power poles and
other infrastructure planned for regular maintenance,
rehabilitation, or reconstruction? What is the assumed life cycle of
a typical power pole? How many utilities have an avian protection
plan in place? At what rate do utilities schedule retrofits
specifically of non-electrocution-safe equipment? Are the estimated
costs associated with power-pole-retrofit strategies reasonable?
4. We propose the use of abundance criteria as a threshold
qualification for a wind energy general permit. Are there other
eligibility criteria for wind-energy general permits, either based
solely on population abundance or beyond population abundance, we
should consider adopting that would provide certainty and simplicity
in the permit process for eligible projects while still meeting the
Eagle Protection Act's preservation standard, including the criteria
analyzed in Alternative 2 of the DEA?
5. Should the relative abundance thresholds for wind energy
general permits (listed in table 1) be updated automatically based
on new data, and if so, how often?
6. Should the Service consider different thresholds for when a
project is disqualified from general-permit eligibility, such as
creating categories based on the generalized probability of
detection?
7. Is the amount of compensatory mitigation required under this
proposed rule sufficient to meet the preservation standard,
considering risk, and uncertainty?
8. How should the Service analyze the potential cost savings to
industry from this rulemaking, and does the public have data to
bolster this analysis in the final rule?
9. Are there estimates or projections of the spatial
distribution of anticipated wind energy industry growth that are
relevant to this proposed rulemaking?
10. In the DEA, the Service estimates that retrofitting 11 power
poles is required to offset one eagle. Assuming a retrofit costs
$7,500, each credit is therefore assumed to cost $82,500 in the
marketplace. Are these assumptions, the retrofit cost, and the
market price of an ``eagle credit'' reasonable?
11. How should the Service implement the proposed audit program?
Are there costs we should consider that ensure accuracy of the
results while reducing the burden to the public?
Information Sessions
The Service will present information explaining this action in
virtual information sessions during the public comment period. The
purpose of each of these sessions is to provide the public with a
general understanding of the background for this proposed rulemaking
action, activities it would cover, alternative proposals under
consideration, and the draft environmental documents for the proposed
action. Unlike a public hearing, a public information session is not a
forum for the submission of public comments.
We will hold the following information sessions in webinar format.
Sessions will start at the time noted. Sessions will last for up to 2
hours but may end early if there are no further comments.
Sessions for federally recognized Native American Tribes:
[squ] On October 19, 2022, at 2 p.m. Eastern Time.
[squ] On November 2, 2022, at 12 p.m. Eastern Time.
Sessions for the general public:
[squ] On October 20, 2022, at 12 p.m. Eastern Time.
[squ] On November 3, 2022, at 2 p.m. Eastern Time.
Registration instructions and updated session information can be
accessed on the Service web page at https://www.fws.gov/regulations/eagle or may be obtained from the person listed under FOR FURTHER
INFORMATION CONTACT. Please note that the Service will ensure that the
information sessions will be accessible to members of the public with
disabilities.
To promulgate a final rule and prepare a final environmental
assessment pursuant to the National Environmental Policy Act, we will
take into consideration all comments and any additional information
received. Please note that submissions merely stating support for or
opposition to the proposed action and alternatives under consideration,
without providing supporting information, will be noted but not
considered by the Service in the final rule and environmental analysis.
Please consider the following when preparing your comments:
(a) Be as succinct as possible.
(b) Be specific. Comments supported by logic, rationale, and
citations are more useful than opinions.
(c) State suggestions and recommendations clearly with an
expectation of what you would like the Service to do.
(d) If you propose an additional alternative for consideration,
please provide supporting rationale and why you believe it to be a
reasonable alternative that would meet the purpose and need for our
proposed action.
(e) If you provide alternate interpretations of science, please
support your analysis with appropriate citations.
Public Availability of Comments
Written comments we receive become part of the public record
associated with
[[Page 59611]]
this action. Before including your address, phone number, email
address, or other personal identifying information in your comment, you
should be aware that the entire comment--including your personal
identifying information--may be made publicly available at any time.
While you can ask us in your comment to withhold your personal
identifying information from public review, we cannot guarantee that we
will be able to do so. Comments and materials we receive, as well as
supporting documentation we use in preparing the environmental
analysis, will be available for public inspection, by appointment,
during normal business hours at the U.S. Fish and Wildlife Service
Headquarters (see FOR FURTHER INFORMATION CONTACT, above).
Required Determinations
Regulatory Planning and Review--Executive Orders 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. OIRA has
determined that this proposed rule is significant.
Executive Order (E.O.) 13563 reaffirms the principles of E.O. 12866
while calling for improvements in the Nation's regulatory system to
promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. E.O. 13563 directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.
Table 2 below shows the permit count and cost for the current
permitting program, the expected number of permits and average permit
costs under the proposed rule, and the estimated marginal costs and
impacts between the existing and the proposed rule. Additional analysis
is available in the supporting environmental assessment.
Table 2--Average Annual Cost and Permit Count Comparison Between Existing Program and Proposed Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Current program Proposed Rule Marginal cost
------------------------------------------------------------------------------ change from
Type of permit Factors Number of annual Fees and costs Number of annual Fees and costs per existing program
permits per permit permits permit to proposed rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wind Energy Project (General) \1\ Permit Application 0 $0 74 $500............... $500
Costs.
Average Compensatory 0 42,000............. 42,000
Mitigation Costs.
Average 0 97,500............. 97,500
Administration
(Monitoring) Costs.
Average Cost Per 0 140,000............ 140,000
Permit.
Average Annual Cost 0 10,360,000......... 10,360,000
to Industry.
Wind Energy Project (Specific)... Permit Application 6 36,000 6 36,000............. 0
Costs.
Average Compensatory 578,000 1,000,000.......... 422,000
Mitigation Costs.
Average 2,100,000 2,100,000.......... 0
Administration
(Monitoring) Costs.
Average Cost Per 2,714,000 3,136,000.......... 422,000
Permit.
Average Annual Cost 16,284,000 18,816,000......... 2,532,000
to Industry.
Power Line Entities \2\.......... Permit Application 0 0 4 500................ 500
Costs.
Average 0 5,000-25,000....... 5,000-25,000
Administration
(Monitoring) Costs.
Average Power Pole 0 1,100,000 (if no 0-275,000
Retrofit Costs. existing retrofit
strategy exists,
to be paid over 5
years).
Average Cost Per 0 5,500-300,500...... 5,500-300,500
Permit.
Average Annual Cost 0 22,000-1,202,000... 22,000-1,202,000
to Industry.
Nest Disturbance \3\............. Permit Application 96 100-500 96 100................ 0-(400)
Costs.
Compensatory 0 0.................. 0
Mitigation Costs.
Administration 0 0.................. 0
(Monitoring) Fee.
Average Cost Per 100-$500 100................ 0-($400)
Permit.
Average Annual Cost 9,600-$48,000 9,600.............. 0-(38,400)
to Industry.
Nest Take \3\.................... Permit Application 40 100-500 40 100................ 0-(400)
Costs.
[[Page 59612]]
Compensatory 0 0.................. 0
Mitigation Costs.
Administration 0 0.................. 0
(Monitoring) Costs.
Average Cost Per 100-500 100................ 0-(400)
Permit.
Average Annual Cost 4,000-20,000 4,000.............. 0-(16,000)
to Industry.
----------------------------------------------------------------------------------------------------------------------
Average Annual Permits Counts 142 16,297,600-16,352 220 29,211,600-30,391,6 12,859,600-14,094
and Costs \4\. ,000 00. ,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. There are no general permits for wind energy projects under the existing rule. For our analysis, we used a 36-turbine project example to calculate
the fees and costs.
2. There are permits designed for power line entities under the existing rule. Under the proposed rule, these entities will not be required to pay
compensatory mitigation costs but will be required to pay costs associated with retrofitting power poles. We estimate that 25% of power line entities
will not have an existing retrofit strategy and will therefore be required to pay this cost
3. Compensatory mitigation rates for Nest Disturbance and Nest Take for golden eagles are required at a 1.2:1 ratio, however the take limit is zero.
4. Total costs for the existing and the marginal cost difference is expressed as a range of values based on estimating the total number of nest take and
nest disturbance permits as either non-commercial or commercial. The actual value is likely somewhere between these figures.
The maximum total estimated annual cost to industry for the
proposed rule is $30,391,600. The maximum total estimated cost over 5
years for all permits is $151,958,000. The average annual equivalent
cost is $24,922,312 with a total net present value cost of $124,611,560
using a 7% discount rate. The average annual equivalent cost is
$27,836,926 with a total net present value of $139,184,629 at a 3%
discount rate. These discount rates represent a range of values that
the Office of Management and Budget recommend as a Federal program
discount rate for benefit cost analysis for most Federal programs. The
above costs represent the total gross cost of the proposed rule and do
not reflect the costs associated with the existing regulations. The
proposed rule is expected to create an estimated maximum $14,094,000
dollars in new costs annually and $70,470,000 in new marginal costs
over 5 years, as compared to the existing regulations. However, these
new marginal costs are more than offset by savings to both industry and
the Service in terms of reduced Eagle Protection Act enforcement costs
and removed requirements for preconstruction monitoring and third-party
monitoring. The anticipated 74 wind energy projects and 4 power line
entities that annually receive and comply with a permit will no longer
be subject to potential enforcement under the Eagle Protection Act,
which can result in substantial legal costs, nor will they incur costs
to estimate and reduce their legal risks, which may include biological
surveys and hiring staff and attorneys. While this total reduced
enforcement cost is not quantifiable due to limited data, the Service
expects that such savings exceeds the total new costs associated with
the proposed rule. The costs of the proposed rule are also offset by
the ecosystem-services benefits associated with potential decreased
take and increased populations of eagles. The Service requests specific
public comment and data on the specific costs associated with existing
enforcement frameworks and the ecosystem-services values associated
with eagles.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (Pub. L. 104-121, 201, 110 Stat. 847)), whenever an
agency is required to publish 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 businesses, small organizations, and small government
jurisdictions. However, no regulatory flexibility analysis is required
if the head of an agency certifies the rule would not have a
significant economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide the statement of the factual basis for certifying
that a 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 impact'' and a threshold for a ``substantial number
of small entities.'' See 5 U.S.C. 605(b). We have examined this
proposed rule's potential effects on small entities as required by the
Regulatory Flexibility Act and determined that this action will not
have a significant economic impact on a substantial number of small
entities. This analysis first estimates the number of businesses
potentially impacted and then estimates the economic impact of the
rule.
To assess the effects of the proposed rule on small entities, we
focus on home-construction companies, wind-energy facilities, and
electric-transmission companies. Although small, noncommercial, wind-
energy facilities such as single turbine facilities tied to public
buildings could seek permits, we anticipate that most of the
applications for wind-energy facilities will be for those that are
commercial or utility in scale. Although businesses in other sectors,
such as railroads, timber companies, and pipeline companies, could also
apply for permits, we anticipate the number of permit applicants in
such sectors would be very small, on the order of one to thirteen per
year for each sector.
Using the North American Industry Classification System (NAICS),
the U.S. Small Business Administration (SBA) defines a small business
as one with annual revenue or employment that meets or is below an
established size standard, which is:
[squ] fewer than 250 employees for ``Wind Electric Power Generation
(NAICS sector 221115),
[[Page 59613]]
[squ] fewer than 1,000 employees for ``Electric Power
Distribution'' (NAICS sector 221122),
[squ] fewer than 500 employees for ``Logging'' (NAICS sector
113310),
[squ] less than $36.5 million of average annual receipts for
``Construction of Buildings'' (NAICS sectors 236115, 236116, 236117,
236210, and 236220),
[squ] less than $36.5 million of average annual receipts for
``Highway, Street, and Bridge Construction'' (NAICS sector 237310),
[squ] less than $15.0 million of average annual receipts for
``Support Activities for Rail Transportation'' (NAICS sector 488210),
and
[squ] fewer than 1,500 employees for ``Gold Ore Mining'' (NAICS
sector 212221).
Table 3 below indicates the number of businesses within each
industry and the estimated percentage of small businesses impacted by
this rule.
Table 3--Distribution and Potential Impact to Businesses 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total firms/establishments Small businesses potentially
-------------------------------------- impacted by rule
NAICS code Description Number of all Number of small -------------------------------------
businesses businesses Number Percentage
--------------------------------------------------------------------------------------------------------------------------------------------------------
221115................................... Wind Electric Power Generation 2. 459 135 22 16
221122................................... Electric Power Distribution 3.... 1,233 1,169 0 0
113310................................... Logging 4........................ 7,992 7,977 up to 13 <1
236115................................... New Single-family Housing 49,215 49,143 up to 13 <1
Construction (Except For-Sale
Builders) 4.
236116................................... New Multifamily Housing 3,175 2,851 up to 13 <1
Construction (Except For-Sale
Builders) 4.
236117................................... New Housing For-Sale Builders 4.. 15,483 15,099 up to 13 <1
236118................................... Residential Remodelers4.......... 103,079 102,998 up to 13 <1
236210................................... Industrial Building Construction 2,997 2,847 up to 13 1
4.
236220................................... Commercial and Institutional 38,079 36,100 up to 13 <1
Building Construction 4.
237310................................... Highway, Street, and Bridge 8,826 8,198 up to 13 <1
Construction 4.
237990................................... Other Heavy and Civil Engineering 4,165 4,052 up to 13 <1
Construction 4.
488210................................... Support Activities for Rail 564 484 up to 13 3
Transportation 4.
212221................................... Gold Ore Mining 4................ 147 132 up to 2 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 Data is from the latest SUSB tables that contain information on receipts, which is from 2017.
2 The number of potentially impacted small businesses is based on the distribution of businesses by enterprise size from 2017 SUSB data tables, the
total number of estimated annual permits, and the small business standards threshold from SBA.
3 Permitting will be required at a large utility scale similar to existing Special Purpose Utility permits (SPUT permits) that the Service issues.
4 We estimate that the number of nest disturbance and nest take permits will be similar to the number issued over the last 5 years, 677. The non-
electric and wind power generation NAICS represent sectors that have historically requested permits. We evenly distributed the estimated total amount
of disturbance and take permits across all sectors, with the exception of Gold Ore Mining, for the 5-year period, which comes to 67 permits. Gold Ore
Mining entities have historically only applied for 1 to 2 permits per year, or up to 10 over a 5-year period. We also assumed an evenly distributed
number of permits across each year, 13, for the remainder of the sectors.
In the last 5 years (2017 through 2022), the Service has issued 26
permits to wind-generation facilities and 677 specific permits to other
entities, which averages about 141 permits annually. For the 677 non-
wind specific permits, most were issued to businesses and to government
agencies, and the remaining were issued to individuals. The number of
specific permits over the first 5 years may be higher or lower than the
existing permit program due to the creation of general permits and the
remaining complexity associated with specific permits. General permits
would allow the regulated community to apply for and obtain a permit
more easily, particularly when projects are designed to comply with
general-permit eligibility criteria. Specific permits would be
available to wind energy project applicants that do not meet general
permit eligibility criteria. Based on these assumptions, we are
estimating that the number of specific permits under the proposed rule
will be similar to the number of existing permits over the last 5
years, which is close to 30 permits.
Businesses that apply for nest take and nest disturbance permits
typically include home construction, road construction, and various
other construction projects. We are assuming that the number of nest
take and nest disturbance permits will continue along this trend over
the next 5 years. For this analysis, we evenly distributed those
permits across industry sectors that best represent the NAICS industry
sectors that have applied for permits historically, with the exception
of Gold Ore Mining, which has historically only applied for 1 to 2
permits annually. As a result, less than 1 to 2.5 percent of small
businesses in NAICS sectors 236115, 236116, 236117, 236118, 236210,
236220, 237310, 237990, 488210, 212221 will be impacted by this rule.
The cost per entity for nest take and nest disturbance permitting under
the proposed rule is minimal, totaling $100 per eagle/nest, per year.
The minimal permit cost of these permits is not expected to result in a
significant impact to small businesses in these sectors, regardless of
the total percentage of small businesses impacted as a whole.
The largest expected impacts to small businesses under the proposed
rule would be an increase in the number of permits issued to wind-
generation facilities due to the changes being made in the application
requirements and processes and the inclusion of power-line entities as
eligible recipients of permits. It is expected that 16 percent of wind
generation small businesses would be impacted by this rule, with the
expected breakdown of permits by enterprise size category shown below
in Table 5.
Table 4 below shows the expected difference between 5-year costs
for existing permits and 5-year costs for the proposed general permits
for wind generation facilities. Wind generation facilities will pay
less for a general permit under the proposed rule when
[[Page 59614]]
compared to the current costs associated with a standard permit under
the existing regulations. The permit application fee would be reduced
from $36,000 to $500 for a general permit. For our analysis, we used a
36-turbine project as an example to calculate the fees and costs. The
fees in the tables below are not flat fees but averages based on the
turbine count. Section 5.2.5 in the Environmental Assessment found in
the docket associated with this rule explains how these costs were
calculated. Compensatory mitigation costs for general permits for a
wind energy project with 36 turbines would average $42,000, a
significant decrease from the existing specific permit cost of $578,000
(assuming mitigation for 1.4 golden eagles per year, using our
calculation from the EA of $82,500 as the cost of an eagle credit). The
average costs for non-compensatory mitigation, monitoring, and other
administrative tasks (permit application, record keeping, auditing,
etc.) for a wind-energy project will average $97,500, a cost savings of
nearly $2,000,000 from the existing specific permit cost of $2,100,000.
The total estimated cost savings between an existing permit and
proposed general permit is approximately $2,500,000. The total number
of estimated permits shows an estimated overall increase in industry
costs associated with permitting under this proposed rule, but only
because the Service expects a substantial jump in participation across
industry due to the improvements in the permit process and reduction in
costs and time required per permit.
Table 4--Wind General Permit Costs and Savings
----------------------------------------------------------------------------------------------------------------
Existing specific New general Cost savings
Cost category (average) (average) (average)
----------------------------------------------------------------------------------------------------------------
Permit Application Costs............................... $36,000 $500 $35,500
Compensatory Mitigation Costs.......................... 578,000 42,000 536,000
Administration (Monitoring) Costs...................... 2,100,000 97,500 2,002,500
--------------------------------------------------------
Total Cost......................................... 2,714,000 140,000 2,574,000
----------------------------------------------------------------------------------------------------------------
Table 5 below displays the proposed new cost for specific permits
under the proposed rule compared to the existing cost for specific
permits under current regulations. Under the proposed rule, entities
will pay $1,000,000 for compensatory mitigation, an increase of
$422,000 from the existing $578,000 cost. These costs have increased
due to updates in the estimated amount of required mitigation for
projects in the specific permit category, which equate to 2.5 golden
eagles annually. Using the calculation described in the EA that uses
$82,500 as the cost of an eagle credit, this results in an average
total of approximately $1,000,000 per project over a 5-year period for
compensatory mitigation. There are no proposed changes to the permit
application fee and entities will continue to pay their own monitoring
costs estimated at $2.1 million over life of the permit. The total cost
increase to entities getting a specific permit is $422,000.
Table 5--Wind Energy Specific Permit Costs and Savings
----------------------------------------------------------------------------------------------------------------
Existing specific New specific Cost savings
Cost category (average) (average) (average)
----------------------------------------------------------------------------------------------------------------
Permit Application Costs............................... $36,000 $36,000 $0
Compensatory Mitigation Costs.......................... 578,000 1,000,000 (422,000)
Administration (Monitoring) Costs...................... 2,100,000 2,100,000 0
--------------------------------------------------------
Total Cost......................................... 2,714,000 3,136,000 (422,000)
----------------------------------------------------------------------------------------------------------------
Businesses in the ``wind electric power generation industry'' are
defined as small if they have less than 250 employees. 2017 SUSB Annual
Data Tables report the annual payroll amounts by industry that fall
within enterprise size categories. The data for wind electric power
generation does not contain a range for establishments under 250
employees, the closest reporting range is less than 500 employees. The
table below shows a range of receipts by enterprise size and
establishment count as well as the projected percentage of receipts
impacted by the proposed rule both at the individual establishments
level and the total for that enterprise size. The wind energy project
general permit cost is assumed to be paid in full at the time of the
permit application, therefore the 5-year cost of $131,000 is assessed
in the first year. This cost would then be assessed again at the
renewal of their permit in 5 years. Due to this being a one-time cost
that covers a 5-year period, this equates to at most one percent of
total annual receipts by enterprise size (Table 6). As a result, this
will not create a substantial impact on small businesses or specific
industries. We base this determination on permit costs for general
permits. The number of specific permits issued is expected to follow
the same trend as under the current regulations, and permits are likely
to be issued in areas of higher risk to eagles to large, complex
facilities that are well above the industry standard payroll amount.
[[Page 59615]]
Table 6--Range of Receipts Impacted by Proposed Rule: Wind Electric Power Generation
[Using 2017 SUSB Annual Data Table]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Average receipt
for size (= Annual cost per Number of Total annual % Annual % of
Enterprise size 1 Establishments Annual receipts receipt/ permit for establishments of receipts receipts for
($1,000) establishments) establishment impacted impacted by impacted
($1,000) ($1,000) annually 2 proposed rule establishments
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
01: Total......................................................... 459 8,001,761 17,433 130 74 0.12 0.75
02: <5 employees.................................................. 45 80,905 1,798 130 7 1.12 7.23
03: 5-9 employees................................................. 8 14,478 1,810 130 1 0.90 7.18
04:10-14 employees................................................ 7 15,873 2,268 130 1 0.82 5.73
05: 15-19 employees............................................... 8 39,960 4,995 130 1 0.33 2.60
06: <20 employees................................................. 68 151,216 2,224 130 11 0.95 5.85
12: 50-74 employees............................................... 9 98,897 10,989 130 1 0.13 1.18
19: <500 employees................................................ 135 1,469,292 10,884 130 22 0.19 1.19
24: 2,000-2,499 employees......................................... 12 75,879 6,323 130 2 0.34 2.06
25: 2,500-4,999 employees......................................... 11 91,973 8,361 130 2 0.28 1.55
26: 5,000+ employees.............................................. 240 5,368,670 22,369 130 39 0.09 0.58
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1 NAICS thresholds for ``Wind Electric Power Generation'' (NAICS 221115) define small businesses as having fewer than 250 employees.
2 The number of establishments impacted annually is based on the weighting of the number of establishments in that enterprise size compared to the total number of establishments. That weight
value was multiplied by the total number of estimated annual permits (74) to derive the figures shown. Note that the total sum of <500 and the enterprise sizes greater than 500 will not
total 74 due to missing enterprise size categories from the SUSB 2017 data tables.
While electric power distribution companies are currently eligible
to apply for a specific permit, under the proposed rule these entities
will become eligible to apply for general permits. The permit
application fee for these general permits is $500 and the monitoring
fee is $5000 per State within which the utility operates. The costs for
power pole retrofits called for under the pro-active retrofit strategy
are estimated to average $1.1 million over the 5-year permit period and
would be evenly distributed annually for an average annual total of
$220,000. Many larger utilities have existing avian protection and
retrofit strategies in place, and we expect that the retrofit
requirement for a general permit will not create substantial new costs
for those entities. However, the Service does not have data on the
number of utilities that have avian protection or retrofit strategies.
For our analysis, we are assuming that 25% of entities do not have an
avian protection/retrofit strategy in place. The total assessed cost
per entity is expected to range from $5,500 to $225,100 within the
first year of the permit term based on whether a retrofit strategy is
required. Costs would be further ameliorated by completing required
retrofits during regularly scheduled maintenance, reconstruction, and
rehabilitation of infrastructure. The marginal costs of making power
poles electrocution-safe when work is already planned on those poles is
relatively low. The Service assumes that the primary interest in
permits in the first 5 years would be from firms with existing special-
purpose-utility permits to salvage dead birds. These firms with known
incidental take of eagles would benefit from a permit authorizing that
take. No existing special-purpose-utility permit holder is a small
business, and therefore there would not be a substantial impact to
small businesses from this proposed rule.
Table 7 below shows the difference between existing permit program
and the 5-year costs under the proposed rule which does incorporate
power line entities.
Table 7--Power Line Entities Permit Costs and Savings
----------------------------------------------------------------------------------------------------------------
Existing permit
Cost category program Proposed rule Cost savings
----------------------------------------------------------------------------------------------------------------
Permit Application Costs......... $36,000 $500 $35,500
Power Pole Retrofit Costs 1...... 0 1,100,000 (1,100,000)
Administration (Monitoring) Costs 0 5,000-$25,000
------------------------------------------------------------------------------
Total........................ 36,000 5,500-1,125,500 30,500-(1,089,500)
----------------------------------------------------------------------------------------------------------------
1 We are assuming 25% of permittees will not have a retrofit strategy in place, and therefore will be required
to pay this cost.
There is no change in the amount homeowners would pay per nest per
year. Commercial businesses would pay the same fees as homeowners under
this rule. A commercial business applying for what is currently termed
a standard permit would have to pay $100 per nest per year (a decrease
of $400). Businesses in the construction industry are defined as small
if they have annual revenue less than $36.5 million. Depending on the
type of permit applications submitted by an individual small business,
the permit fees would represent less than one percent of revenue for
this size of business. Thus, the changes in standard permit fees would
not have a significant economic effect on a substantial number of small
businesses in the construction sectors. The changes in permit
application fees are shown in tables 8 and 9.
Table 8 shows the expected difference between the existing nest
disturbance permit annual costs and the proposed specific permit annual
costs.
[[Page 59616]]
Table 8--Annual Nest Disturbance Permit Costs and Savings
----------------------------------------------------------------------------------------------------------------
Existing nest New nest
Cost category disturbance disturbance Cost savings
----------------------------------------------------------------------------------------------------------------
Permit Application Costs........................................ $100-500 $100 $0-$400
----------------------------------------------------------------------------------------------------------------
Table 9 shows the expected difference between the existing nest
take permit annual costs and the proposed specific permit annual costs.
Table 9--Nest Take Permit Costs and Savings
----------------------------------------------------------------------------------------------------------------
Existing nest
Cost category take New nest take Cost savings
----------------------------------------------------------------------------------------------------------------
Permit Application Costs........................................ $100-500 $100 $0-$400
----------------------------------------------------------------------------------------------------------------
The proposed rule is expected to create an overall savings due to
reduced costs for general permits compared to existing individual
permits. The proposed rule is expected to create additional savings to
both industry and the Service in terms of reduced Eagle Act enforcement
costs. Entities that receive and comply with a permit will no longer be
subject to potential enforcement under the Eagle Act, which can result
in substantial legal costs, nor will they incur costs to estimate and
reduce their legal risks, which may include biological surveys and
hiring staff and attorneys. While this total reduced enforcement cost
is not quantifiable due to limited data, the Service expects that it
exceeds the total of new costs associated with the proposed rule.
For these reasons, we certify that this rule will not have a
significant impact on a substantial number of small entities. The
proposed rule impacts a substantial number of small businesses in NAICS
sector 221115, ``Wind Electric Power Generation''; however, the
financial impacts to individual businesses are not significant. The
number of businesses belonging to other industries impacted is not
substantial and the magnitude of those impacts is not significant. For
these reasons, we certify that this rule will not have a significant
impact on a substantial number of small entities. Based on the
available information, we certify that this proposed rule would not
have a significant economic effect on a substantial number of small
entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
et seq.). Therefore, an initial regulatory flexibility analysis is not
required, and a small entity compliance guide is not required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act, we have
determined the following:
a. This proposed rule will not ``significantly or uniquely'' affect
small governments in a negative way. A small government agency plan is
not required.
b. This proposed rule will not produce a Federal mandate of $100
million or greater in any year. It is not a ``significant regulatory
action'' under the Unfunded Mandates Reform Act.
Takings (E.O. 12630)
In accordance with E.O. 12630, the rule will not have significant
takings implications. This rule does not contain any provisions that
could constitute taking of private property. Therefore, a takings
implication assessment is not required.
Federalism (E.O. 13132)
This rule will not have sufficient federalism effects to warrant
preparation of a federalism summary impact statement under E.O. 13132.
It will not interfere with the States' abilities to manage themselves
or their funds. No significant economic impacts are expected to result
from the proposed regulations changes.
In accordance with E.O. 12988, the Office of the Solicitor has
determined that this proposed rule does not unduly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
order.
Paperwork Reduction Act (44 U.S.C. 3501 et seq.)
This proposed rule contains existing and new information
collections. All information collections require approval by the Office
of Management and Budget (OMB) under the Paperwork Reduction Act of
1995 (PRA, 44 U.S.C. 3501 et seq.). We may not conduct or sponsor, and
you are not required to respond to, a collection of information unless
it displays a currently valid OMB control number. The OMB has reviewed
and approved the information collection requirements associated with
eagle permits and fees and assigned the OMB Control Number 1018-0167.
In accordance with the PRA and its implementing regulations at 5
CFR 1320.8(d)(1), we provide the general public and other Federal
agencies with an opportunity to comment on our proposal to revise OMB
Control Number 1018-0167. This input will help us assess the impact of
our information collection requirements and minimize the public's
reporting burden. It will also help the public understand our
information collection requirements and provide the requested data in
the desired format.
As part of our continuing effort to reduce paperwork and respondent
burdens, and in accordance with 5 CFR 1320.8(d)(1), we invite the
public and other Federal agencies to comment on any aspect of this
proposed information collection, including:
(1) Whether or not the collection of information is necessary for
the proper performance of the functions of the agency, including
whether or not the information will have practical utility;
(2) The accuracy of our estimate of the burden for this collection
of information, including the validity of the methodology and
assumptions used;
(3) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(4) Ways to minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of response.
[[Page 59617]]
Comments that you submit in response to this proposed rulemaking
are a matter of public record. Before including your address, phone
number, email address, or other personal identifying information in
your comment, you should be aware that your entire comment--including
your personal identifying information--may be made publicly available
at any time. While you can ask us in your comment to withhold your
personal identifying information from public review, we cannot
guarantee that we will be able to do so.
The Bald and Golden Eagle Protection Act (Eagle Act; 16 U.S.C. 668-
668d) prohibits take of bald eagles and golden eagles except pursuant
to Federal regulations. The Eagle Act regulations at title 50, part 22
of the CFR define the ``take'' of an eagle to include the following
broad range of actions: To ``pursue, shoot, shoot at, poison, wound,
kill, capture, trap, collect, destroy, molest, or disturb.'' The Eagle
Act allows the Secretary of the Interior to authorize certain otherwise
prohibited activities through regulations. Service permit applications
associated with eagles are each tailored to a specific activity based
on the requirements for specific types of permits. We collect standard
identifier information for all permits. The information that we collect
on applications and reports is the minimum necessary for us to
determine if the applicant meets/continues to meet issuance
requirements for the particular activity. Standardizing general
information common to the application forms makes filing of
applications easier for the public as well as expedites our review of
applications. In accordance with Federal regulations at 50 CFR 13.12,
we collect standard identifier information for all permits, such as:
[squ] Applicant's full name and address (street address, city,
county, State, and zip code; and mailing address if different from
street address); home and work telephone numbers; and a fax number and
email address (if available), and
[squ] If the applicant resides or is located outside the United
States, an address in the United States, and, if conducting commercial
activities, the name and address of his or her agent that is located in
the United States; and
[squ] If the applicant is an individual, the date of birth,
occupation, and any business, agency, organizational, or institutional
affiliation associated with the wildlife or plants to be covered by the
license or permit; or
[squ] If the applicant is a business, corporation, public agency,
or institution, the tax identification number; description of the
business type, corporation, agency, or institution; and the name and
title of the person responsible for the permit (such as president,
principal officer, or director);
[squ] Location where the requested permitted activity is to occur;
[squ] Certification containing the following language:
[squ] I hereby certify that I have read and am familiar with the
regulations contained in title 50, part 13, of the Code of Federal
Regulations and the other applicable parts in subchapter B of chapter I
of title 50, Code of Federal Regulations, and I further certify that
the information submitted in this application for a permit is complete
and accurate to the best of my knowledge and belief. I understand that
any false statement herein may subject me to suspension or revocation
of this permit and to the criminal penalties of 18 U.S.C. 1001.
[squ] Desired effective date of permit (except where issuance date
is fixed by the part under which the permit is issued);
[squ] Date;
[squ] Signature of the applicant; and
[squ] Such other information as the Director determines relevant to
the processing of the application, including, but not limited to,
information on the environmental effects of the activity consistent
with 40 CFR 1506.5 and Departmental procedures at 516 Department Manual
(DM) 6, appendix 1.3A.
In addition to the general permitting requirements outlined in
Federal regulations at 50 CFR 13.12, applications for any permit under
50 CFR part 22 must contain:
[squ] Species of eagle and number of such birds, nests, or eggs
proposed to be taken, possessed, or transported;
[squ] Specific locality in which taking is proposed, if any;
[squ] Method of proposed take, if any;
[squ] If not taken, the source of eagles and other circumstances
surrounding the proposed acquisition or transportation;
[squ] Name and address of the public museum, public scientific
society, or public zoological park for which they are intended; and
[squ] Complete explanation and justification of the request, nature
of project or study, number of specimens now at the institution, reason
these are inadequate, and other appropriate explanations.
The proposed revisions to existing and new reporting and/or
recordkeeping requirements identified below require approval by OMB:
(1) Administrative Updates--On January 7, 2022, the Service
published a final rule (87 FR 876) making administrative updates to 50
CFR parts 21 and 22. We captured the associated administrative updates
to the CFR references for part 22 in the updated versions of the forms
in this collection being submitted to OMB for approval with this
renewal/revision request.
(2) Revision to Form 3-200-71--We are proposing to split the
currently approved Form 3-200-71, ``Eagle Take Associated with but not
the Purpose of an Activity (Incidental Take)'' into three separate
forms as follows:
a. Form 3-200-71, ``Eagle Incidental Take''--General and Specific,
b. Form 3-200-91, ``Eagle Disturbance Take''--General and Specific.
and
c. Form 3-200-92, ``Eagle Incidental Take (Power Lines)''--General.
We further describe the proposed changes below:
a. (Revised Title) Form 3-200-71, ``Eagle Incidental Take''--
General and Specific--The revision to Form 3-200-71 would authorize the
incidental killing or injury of bald eagles and golden eagles
associated with the operation of wind energy projects. General eagle
permits are valid for 5 years from the date of registration. Specific
eagle permits may be valid for up to 30 years. In addition to the
standardized information required by 50 CFR 13.12, permit application
requirements include submission of the following information: requested
permit duration; description of the activity that will incidentally
take eagles; justification for why the take is necessary; location;
description of eagle activity in the area and location and history of
eagle use of known nests, foraging areas, and roost sites; factors that
may contribute to the disturbance of eagles (if applicable); measures
to minimize impacts to eagles; and names of persons that may be
carrying out the activity that will incidentally take eagles.
In addition, permit applications associated with wind energy
incidental take permits may require the following:
[squ] Post-Construction Monitoring--Post-construction monitoring
fatality estimation must be based on 2 or more years of eagle fatality
monitoring that meet the Service's minimum fatality monitoring
requirements for specific eagle permits.
[squ] Adaptive Management Plan--Upon the discovery of the third and
fourth bald eagle or three golden eagle injuries or mortalities at a
project, the permittee must provide the Service with their adaptive
management plan and a description and justification of which adaptive
management approaches will be implemented.
[[Page 59618]]
[squ] Annual Report--Permit conditions may require the submission
of annual reports to the Service.
[squ] Compensatory Mitigation--For wind energy specific eagle
permits, the permittee must implement the compensatory mitigation
requirements on the face of their permit. For wind energy general eagle
permits, the permittee must obtain eagle credits to the nearest tenth
of an eagle for every cubic-meter of hazardous volume of their project
from a Service-approved conservation bank or in-lieu fee program.
The Service will use the information collected via the form to
track whether the take level is exceeded or is likely to be exceeded,
to determine that the take is necessary, and that the take will be
compatible with the preservation of eagles.
b. (Proposed Title--NEW) Form 3-200-91, ``Eagle Disturbance
Take''--General and Specific--Applicants may apply for an Eagle
Disturbance Permit if their activity may result in incidental
disturbance of a golden eagle nest, incidental disturbance of a bald
eagle nest, or disturbance to a foraging area. Disturbance General
Eagle Permits issued under this section are valid for a maximum of 1
year. The tenure of Disturbance Specific Eagle Permits is set forth on
the face of the permit and may not exceed 5 years. In addition to the
standardized information required by 50 CFR 13.12, permit application
requirements include submission of the following information: the
species of eagle sought to be covered by the permit, as well as the
method of take (such as kill/injure, disturbance, alternate nest, or
in-use nest take); a description of the activity to be authorized,
including the location, seasonality, and duration of the activity; the
description must include a justification of why there is no practicable
alternative to take that would protect the interest to be served;
duration of the permit requested; payment of required application and
administration fee(s) (see Sec. 13.11(d)(4)); and, if required,
implementation of eagle credits by a Service-approved in-lieu fee
program.
The Service will use the information via the form to track whether
the take level is exceeded or is likely to be exceeded, to determine
that the take is necessary, and that the take will be compatible with
the preservation of eagles.
c. (Proposed Title--NEW) Form 3-200-92, ``Eagle Incidental Take
(Power Lines)''--General--The purpose of this new permit application is
to authorize the incidental killing or injury of bald eagles and golden
eagles associated with power line activities. Power line general eagle
permits are valid for 5 years. Specific eagle permits may be valid for
up to 30 years. In addition to the standardized information required by
50 CFR 13.12, permit application requirements include submission of the
following information: the species of eagle sought to be covered by the
permit, as well as the method of take; a description of the activity
for which take of eagles is to be authorized, including the location,
seasonality, and duration of the activity, and a justification of why
there is no practicable alternative to take that would protect the
interest to be served; duration of the permit requested; payment of
required application and administration fee(s) (see 50 CFR
13.11(d)(4)); and, if required, implementation of eagle credits by a
Service-approved in-lieu fee program.
In addition, permit applications associated with incidental take
permits for power lines may require the following:
[msqu] Avian Protection Plan--An Avian Protection Plan (APP) is
developed through a cooperative partnership between power companies and
the Service. The Service does not review or approve the APP, but we
will reference it if there is enforcement action or in cases in which
we use discretion and do not enforce the take issue. The APP delineates
a program designed to reduce the operational and avian risks that
result from avian interactions with power line infrastructure with the
overall goal of reducing avian mortality. The four strategies defined
below (collision response, eagle shooting response, proactive retrofit,
and reactive retrofit) may be components of an avian protection plan:
[msqu] Collision Response Strategy--A plan that describes the steps
the permittee will take to identify, assess, and respond to eagle
collisions with power line infrastructure. The assessment should
include the species, habitat, daily and seasonal migration patterns,
eagle concentration areas, and other local factors that might be
contributing to eagle collisions. The response options should consider
eagle collisions in the engineering design (e.g., burying the line,
rerouting the line, or modifying the line to reduce the number of
wires), habitat modification, and marking the line.
[msqu] Eagle Shooting Response Strategy--A plan to respond to eagle
shooting events where one or more eagles are discovered near power line
infrastructure and the cause of death is shooting. The strategy must
outline the steps to identify eagle shooting, options for response, and
implementation of response.
[msqu] Proactive Retrofit Strategy--A plan to convert existing
infrastructure to electrocution-safe. The proactive retrofit strategy
must include how poles are identified as not electrocution-safe,
prioritized for retrofit, designed, and implemented. The proactive
retrofit strategy must identify annual targets for retrofitting.
[msqu] Reactive Retrofit Strategy--A plan to respond to incidents
where eagles are electrocuted or killed. The reactive retrofit strategy
must include how electrocutions are detected and identified. Reactive-
retrofit poles must be based on risk to eagles and not other factors,
such as convenience. The pole that caused the electrocution must be
retrofit, unless the pole already provides sufficient separation by
design or is fully insulated by insulators in good condition. A total
of 11 poles or a \1/2\-mile segment must be retrofit, whichever is
less. The most typical pole selection is the pole that caused the
electrocution and five poles in each direction. However, if it is
better for eagles for the project proponent to retrofit other poles in
the circuit that are not electrocution-safe, those poles may be
retrofit, prioritizing the least safe poles most adjacent to the
electrocution. Poles outside of the circuit that caused the
electrocution may be retrofit only if all poles in the circuit are
already electrocution-safe.
[msqu] Annual Report--Permit conditions may require the submission
of annual reports to the Service.
The Service will use the information via the form to track whether
the take level is exceeded or is likely to be exceeded, to determine
that the take is necessary, and that the take will be compatible with
the preservation of eagles.
(3) Revision to Form 3-200-72--We are proposing to revise Form 3-
200-72, ``Eagle Nest Take'' as described below:
Form 3-200-72 is used to apply for authorized take of bald eagle
nests or golden eagle nests, including relocation, removal, and
otherwise temporarily or permanently preventing eagles from using the
nest structure under definitions in proposed 50 CFR 22.300(b). General
permits are available for bald eagle nest take for emergency, health
and safety, or a human-engineered structure, or, if located in Alaska,
bald eagle nest take for other purposes. General permits authorize bald
eagle nest removal as well as subsequent nesting attempts on the same
nesting substrate and within \1/2\ mile of that substrate for the
duration of
[[Page 59619]]
the permit. Take of an additional eagle nest(s) more than a \1/2\ mile
away requires additional permit(s). General permits issued under this
proposed section are valid until the start of the next breeding season,
not to exceed 1 year. The tenure of specific permits is set forth on
the face of the permit and may not exceed 5 years.
In addition to the standardized information required by 50 CFR
13.12, permit application requirements include submission of the
following information:
[squ] Apply as Federal, State, or Tribal agency responsible for
implementing actions for species protection.
[squ] Include documentation demonstrating the following:
[squ] Describe relevant management efforts to protect the species
of concern.
[squ] Identify how eagles are a limiting factor to survival of the
species using the best available scientific information and data.
Include a description of the mechanism of that threat.
[squ] Explain how take of eagle nest(s) is likely to have a
positive outcome on recovery for the species.
[squ] Arborist reports (in the case of hazard tree removal).
In addition, permit applications associated with eagle nest take
may require the following:
[squ] Monitoring--If a foster nest is used, the permittee may be
required to monitor the nest to ensure nestlings or eggs are accepted
by the foster eagles. We updated the burden for monitoring requirements
associated with eagle nest take in the separate monitoring information
collection requirement.
Proposed Changes--We propose changes in the general permit
questions as follows:
[squ] The species of eagle sought to be covered by the permit, as
well as the method of take (such as kill/injure, disturbance, alternate
nest, or in-use nest take).
[squ] A description of the activity for which take of eagles is to
be authorized, including the location, seasonality, and duration of the
activity. The description must include a justification of why there is
no practicable alternative to take that would protect the interest to
be served.
[squ] Duration of the permit requested.
[squ] Payment of required application and administration fee(s)
(see 50 CFR 13.11(d)(4)); and
[squ] If required, implementation of eagle credits by a Service-
approved in-lieu fee program.
The Service will use the information via the form to track whether
the take level is exceeded or is likely to be exceeded, to determine
that the take is necessary, and that the take will be compatible with
the preservation of eagles.
(4) Reporting Requirements--Submission of reports is generally on
an annual basis, although some are dependent on specific transactions.
Additional monitoring and report requirements exist for permits issued
under 50 CFR part 22. Permittees must submit an annual report for every
year the permit is valid and for up to 3 years after the activity is
completed.
a. (New Reporting Requirement) Report Take of Eagles (3rd and 4th
Eagles) (50 CFR 22.250(d)(2) and (3))--Permittees must notify the
Service in writing within 2 weeks of discovering the take of a third or
fourth eagle of either species. The notification must include the
reporting data required in their permit conditions, their adaptive
management plan, and a description and justification of which adaptive
management approaches they will be implementing. Upon notification of
the take of the fourth eagle of either species, the project may
continue to operate through the term of the existing general permit,
but the project proponent is denied from obtaining future general
permits for incidental take for that project.
(5) Change in Administration Fees (State, Local, Tribal, or Federal
Agencies)--State, local, Tribal, and Federal government agencies, and
those acting on their behalf, are exempt from processing fees.
Proposed Change--This rule proposes a change to the Service's
practice of not charging administration fees for eagle permits under 50
CFR part 22 to any State, local, Tribal, or Federal government agency,
or to any individual or institution acting on behalf of such agency.
With this proposed rule, these government agencies would be required to
pay administrative fees to cover the costs associated with Service-led
program monitoring.
(6) (NEW--Existing In Use Without OMB Approval) Labeling
Requirement--Regulations at 50 CFR 22.4 require all shipments
containing bald or golden eagles, alive or dead, their parts, nests, or
eggs to be labeled. The shipments must be labeled with the name and
address of the person the shipment is going to, the name and address of
the person the shipment is coming from, an accurate list of contents by
species, and the name of each species.
(7) (NEW--Existing In Use Without OMB Approval) Requests for
Reconsideration Associated with Eagle Permits (Suspension and
Revocation)--Persons notified of the Service's intention to suspend or
revoke their permit may request reconsideration by complying with the
following:
[squ] Within 45 calendar days of the date of notification, submit
their request for reconsideration to the issuing officer in writing,
signed by the person requesting reconsideration or by the legal
representative of that person.
[squ] The request for reconsideration must state the decision for
which reconsideration is being requested and shall state the reason(s)
for the reconsideration, including presenting any new information or
facts pertinent to the issue(s) raised by the request for
reconsideration.
[squ] The request for reconsideration shall contain a certification
in substantially the same form as that provided by 50 CFR 13.12(a)(5).
If a request for reconsideration does not contain such certification,
but is otherwise timely and appropriate, it shall be held and the
person submitting the request shall be given written notice of the need
to submit the certification within 15 calendar days. Failure to submit
certification shall result in the request being rejected as
insufficient in form and content.
(8) (NEW--Existing In Use Without OMB Approval) Compensatory
Mitigation--Compensatory mitigation will be required for any permit
authorizing take that would exceed the applicable eagle management unit
take limits. Compensatory mitigation for this purpose must ensure the
preservation of the affected eagle species by reducing another ongoing
form of mortality by an amount equal to or greater than the unavoidable
mortality or increasing the eagle population by an equal or greater
amount. Compensatory mitigation may also be required when there is
concern regarding the persistence of the local-area population of the
project area, based on publicly available information. Except as
restricted otherwise, compensatory mitigation may include in-lieu fee
programs, conservation banks, other third-party mitigation projects, or
arrangements and permittee-responsible mitigation. Except as restricted
otherwise, compensatory mitigation may include in-lieu fee programs,
conservation banks, other third-party mitigation projects, or
arrangements and permittee-responsible mitigation.
Compensatory mitigation must be approved by the Service and may
include conservation banks, in-lieu fee programs, other third-party
mitigation projects, or arrangements and permittee-responsible
mitigation. To obtain approval, the permittee must submit a mitigation
plan to the Service sufficient to demonstrate that the standards set
[[Page 59620]]
forth in proposed Sec. 22.220(b) can be met, including a description
of the number of credits to be provided, the Service's Eagle Management
Units (EMU's) that will be implemented, and an explanation of the
rationale for this determination. The Service must approve the
mitigation plan before credits can be issued.
(9) (NEW--Existing In Use Without OMB Approval) Single Application
for Multiple Activities (50 CFR 13.11(d)(1))--When regulations require
more than one type of permit, applicants may submit a single
application, provided the single application contains all of the
information required by the separate applications for each permitted
activity. In instances where more than one permitted activity is
consolidated into one permit, the issuing office will charge the
highest single fee for the activity permitted. If the activity spans
multiple regions, applications should be submitted to the region of the
applicant's U.S. mailing address. Administration fees are not waived
for single applications covering multiple activities.
We also propose to renew the existing reporting and/or
recordkeeping requirements identified below:
(1) Form 3-200-14, ``Eagle Exhibition''--This form is used to apply
for a permit to possess and use eagles and eagle specimens for
educational purposes. In addition to the standardized information
required by 50 CFR 13.12, permit application requirements include
submission of the following information: type of eagle(s) or eagle
specimens; status of other required authorizations (State, local,
Tribal); description of the programs that will be offered and how the
eagles will be displayed; experience of handlers; and information about
enclosures, diet, and enrichment for the eagles. The Service uses the
information collected via the form to determine that the eagles are
legally acquired and will be used for bona fide conservation education,
and in the case of live eagles, will be housed and handled under safe
and healthy conditions.
(2) Form 3-200-15a, ``Eagle Parts for Native American Religious
Purposes''--This application form is used by enrolled members of
federally recognized Tribes to provide them authorization to acquire
and possess eagle feathers and parts from the Service's National Eagle
Repository (NER). The permittee also uses the form to make additional
requests for eagle parts and feathers from the NER. The form collects
the following information: name of the Tribe; Tribal enrollment number
of the individual applicant; a signed Certification of Enrollment;
inmate specific information in cases where applicants are incarcerated
(inmate number, institution, contact information for the institute's
chaplain); and the specific eagle parts and/or feathers desired by the
applicant. The Service uses the information collected via the form to
verify that the applicant is an enrolled member of a federally
recognized Tribe, and what parts and/or feathers the applicant is
requesting.
(3) Form 3-200-16, ``Take of Depredating Eagles & Eagles that Pose
a Risk to Human or Eagle Health or Safety--Annual Report''--Applicants
use this form to obtain authorization to take (trap, collect, haze)
eagles that depredate on wildlife or livestock, as well as eagles
situated where they pose a threat to human or their own safety. In
addition to the standardized information required by 50 CFR 13.12,
permit application requirements include submission of the following
information: status of other required authorizations (State, local,
Tribal); the species and estimated number of eagles causing the
problem; what the damage or risk consists of; location; method of take;
alternatives taken that were not effective; and a description of the
proposed long-term remedy. The Service uses the information collected
via the form to determine the take is necessary to protect the
interest; other alternatives have been considered; and the method of
take is humane and compatible with the preservation of eagles.
(4) Form 3-200-18, ``Take of Golden Eagle Nests During Resource
Development or Recovery''--This application is used by commercial
entities engaged in resource development or recovery operations, such
as mining or drilling to obtain authorization to remove or destroy
golden eagle nests. In addition to the standardized information
required by 50 CFR 13.12, permit application requirements include
submission of the following information: location of the property; the
status of other required authorizations; the type of development or
recovery operation; the number of nests to be taken; the activity that
involves the take of the nest; the disposition of the nests once
removed (or destroyed); the duration for which the authorization in
requested; and a description of the mitigation measures that will be
implemented. The Service uses the information collected via the form to
determine that the take is necessary and will be compatible with the
preservation of eagles.
(5) Form 3-200-77, ``Native American Eagle Take for Religious
Purposes''--Federally recognized Native American Tribes use this form
to apply for authorization to take eagles from the wild for Tribal
religious purposes. In addition to the standardized information
required by 50 CFR 13.12, permit application requirements include
submission of the following information: status of other required
authorizations; location of proposed take; statement of consent by the
land owner or land manager if not on Tribal land; species, number, and
age class of eagles; whether the eagles will be collected alive and
held in captivity; intended disposition of parts and feathers; and the
reason why eagles obtained by other means do not meet the Tribe's
religious needs. The Service uses the information obtained via the form
to determine the take is necessary to meet the Tribe's religious needs,
that they received consent of the landowner, the take is compatible
with the preservation of eagles, and any eagles kept alive will be held
under humane conditions.
(6) Form 3-200-78, ``Native American Tribal Eagle Aviary''--
Federally recognized Native American Tribes use this form to apply for
authorization to keep live eagles for Tribal religious purposes. In
addition to the standardized information required by 50 CFR 13.12,
permit application requirements include submission of the following
information: descriptions, photographs and/or diagrams of the
enclosures where the eagles will be housed, and number of eagles that
will be kept in each; status of other required authorizations; names
and eagle-handling experience of caretakers; veterinarian who will
provide medical care; and description of the diet and enrichment the
Tribe will provide the eagles. The Service uses the information
collected via the form to ensure the Tribe has the appropriate
facilities and experience to keep live eagles safely and humanely.
(7) Form 3-200-82, ``Bald Eagle or Golden Eagle Transport into the
United States for Scientific or Exhibition Purposes''--This application
is used by researchers and museums to obtain authorization to
temporarily bring eagle specimens into, or take such specimens out of,
the United States. In addition to the standardized information required
by 50 CFR 13.12, permit application requirements include submission of
the following information: documentation that the specimen was legally
obtained; documentation that the applicant meets the definition of a
``public'' institution as required under statute; status of other
[[Page 59621]]
required authorizations (State, local, Tribal); description of the
specimen(s); country of origin; name of and contact information for the
foreign institution; scientific or exhibition purposes for the
transport of specimens; locations where the item will be exhibited (if
applicable); dates and ports of departure/arrival; and names of persons
acting as agents for the applicant. The Service uses the information
collected via the form to ensure the specimens were legally acquired
will be transported through U.S. ports that can legally authorize the
transport, the transport will be temporary, as required by statute, and
the specimens will be used for purposes authorized by statute.
(8) Form 3-202-11, ``Take of Depredating Eagles & Eagles that Pose
a Risk to Human or Eagle Health or Safety--Annual Report''--Permittees
use this form to report the outcome of their action involving take of
depredating eagles or eagles that pose a risk to human or eagle health
or safety. The form collects the following information: species,
location, date of take, number of eagles, method of take, and final
disposition. The Service uses the information reported via the form to
ascertain that the planned take was implemented, track how much
authorized take occurred in the eagle management unit and local
population area, and verify the disposition of any eagles taken under
the permit.
(9) Form 3-202-13, ``Eagle Exhibition--Annual Report''--Permittees
use this form to report activities conducted under an Eagle Exhibition
Permit for both Live and Dead Eagles. The form collects the following
information: list of eagles and eagle specimens held under the permit
during the reporting year, and, for each, the date acquired or disposed
of; from whom acquired or to whom transferred; total number of programs
each eagle was used in, or if statically displayed, such as in a museum
setting, the number of days the facility was open to the public. The
Service uses the information reported through this form to verify that
eagles held under the permit are used for conservation education.
(10) Form 3-202-14, ``Native American Tribal Eagle Aviary--Annual
Report''--Permittees use this form to report activities conducted under
a Native American Eagle Aviary Permit. The form collects the following
information: a list of eagles held under the permit during the
reporting year, and, for each, the date acquired or disposed of; from
whom acquired or to whom transferred; or other disposition. The Service
uses the information collected via the form to track the live eagles
held by federally recognized Tribes for spiritual and cultural
practices.
(11) Form 3-1552 ``Native American Tribal Eagle Retention''--A
Federal Eagle Remains Tribal Use permit authorizes a federally
recognized Tribe to acquire, possess, and distribute to Tribal members
whole eagle remains found by a Tribal member or employee on the Tribe's
Tribal land for Indian religious use. The applicant must be a federally
recognized Tribal entity under the Federally Recognized Tribal List Act
of 1994, 25 U.S.C. 479a-1, 108 Stat. 4791 (1994). In addition to the
standardized information required by 50 CFR 13.12, the form also
collects the following information: name of the Tribe; name and contact
information for the Tribal leader and primary contact person; whether
the Tribe has already discovered an eagle to hold under the permit; and
if different than what's listed for the primary contact, the address of
the physical location where records will be kept. The Service uses the
information collected via the form to identify which Tribe is applying
for the permit and informs the Service as to whether the Tribe is
applying before or subsequent to finding the first eagle they wish to
retain, allowing the Service to choose the appropriate course of
action.
(12) Form 3-1591, ``Tribal Eagle Retention--Acquisition Form''--
This form provides the Service information needed to track the chain of
custody of eagle remains and ensure the Tribe takes possession of them
as authorized under the permit. The first part of the form (completed
by a Service Office of Law Enforcement (OLE) Officer) collects:
species; sex; age class of eagle; date and location discovered; date
the information was reported to track eagle mortalities; date the
remains were transferred to the Tribe; name and contact information for
the Tribe; and OLE officer name and contact information. The second
part of the form (competed by the Tribe) collects: permit number; date
the Tribe took possession of the eagle; and Principal Tribal Officer's
name, title, and contact information.
(13) Form 3-2480, ``Eagle Recovery Tag''--The form is used to track
dead eagles as they move through the process of laboratory examination
to determine cause of death and are sent to the NER for distribution to
Native Americans for use in religious ceremonies. In addition to the
standardized information required by 50 CFR 13.12, the form also
collects the following information: U.S. Geological Survey band data;
unique ID number assigned; mortality date; species, age, and sex of the
eagle; date recovered; name of person(s) who found and recovered the
eagle; and names and contact information of persons who received the
eagle throughout the chain of custody. The Service uses the information
collected to maintain chain of custody for law enforcement and
scientific purposes.
(14) Monitoring Requirements--Most permits that authorize take of
eagles or eagle nests require monitoring. We do not require monitoring
for intentional take such as when Native American Tribes take an eagle
as part of a religious ceremony or when falconers trap golden eagles
that are depredating on livestock. A fundamental purpose of monitoring
under take permits is to track levels of take for population
management. For disturbance permits, monitoring also provides
information about whether the permitted activity actually disturbed
eagles, allowing the Service to better understand when these types of
permits may not be needed. In addition to tracking take at population
management scales, the Service uses data from monitoring lethal take
permits to adjust authorized take levels, compensatory mitigation
requirements, and conservation measures as spelled out under the terms
of the permit. With regard to wind industry permits, these data also
enable the Service to improve future fatality estimates through
enhanced understanding of exposure and collision.
(15) Required Notifications--Most permits that authorize take or
possession of eagles require a timely notification to the Service by
email or phone when an eagle possessed under a possession permit or
taken under a permit to take eagles dies or is found dead. These
fatalities are later recorded in reports submitted to the Service as
described above. The timely notifications allow the Service to better
track take and possession levels, and to ensure eagle remains are sent
to either a forensics lab or the NER. Incidental take permittees are
also required to notify the Service via email or phone if a threatened
or endangered species is found in the vicinity of the activity for
which take is permitted. There is no notification requirement for that
beyond reporting each occurrence where take is discovered to have
occurred. The Service tracks whether the take level is exceeded or is
likely to be exceeded.
(16) Permit Reviews--We propose to remove the regulatory
requirement for long-term specific permits to mandate an administrative
check-in with the Service at least every 5 years during the permit
tenure (termed 5-year Permit Review, above). The Service introduced
these mandatory 5-year permit reviews
[[Page 59622]]
as part of the 2016 Eagle Rule to ensure that the Service had an
opportunity to ask for and review all existing data related to a long-
term activity's impacts on eagles. It was intended that the Service
would use this information to, if necessary, re-calculate fatality
estimates and authorization levels, and amend permit conditions such as
mitigation requirements. However, over the last several years the
Service has heard complaints from wind companies, and comments were
submitted in response to the ANPR, that these scheduled reviews
introduced uncertainty into project planning and funding and has
discouraged participating or influenced the permit tenure that is
requested by the applicant.
Removal of these administrative check-ins would increase certainty
for applicants that are concerned about amendments to permit conditions
every 5 years, and is intended to increase participating in eagle take
permitting. The Service instead intends to hold the amount of take
authorized under a long-term specific permit constant unless the
permittee requests an amendment, or unless the Service determines that
an amendment is necessary and required under 50 CFR 22.200(e). Such a
change replaces scheduled check-ins and potential amendments resulting
from those check-ins with unscheduled check-ins and amendments that the
permittee or Service could initiate at any time as situations arise
that may warrant them.
(17) Recordkeeping Requirements--As required by 50 CFR 13.46,
permittees must keep records of the activity as it relates to eagles
and any data gathered through surveys and monitoring, to include
records associated with the required internal incident reporting system
for bald eagle and golden eagle remains found and the disposition of
the remains. This information retained by permittees is described above
under reporting requirements.
(18) Amendments--Amendments to a permit may be requested by the
permittee, or the Service may amend a permit for just cause upon a
written finding of necessity. Amendments comprise changes to the permit
authorization or conditions. Such changes may include an increase or
decrease in the authorized take or possession of eagles, proposed
adjustment of permit conditions, or changes to the activity involving
eagles. The permit will specify circumstances under which modifications
to avoidance, minimization, or compensatory mitigation measures or
monitoring protocols will be required, which may include, but are not
limited to take levels, location of take, and/or changes in eagle use
of the activity area.
At a minimum, the permit must specify actions to be taken if take
approaches or reaches the amount authorized and anticipated within a
given timeframe. The permittee applies for amendments to the permit by
submitting a description of the modified activity and the changed
conditions affecting eagles. Substantive amendments incur a processing
fee. A permittee is not required to pay a processing fee for minor
changes, such as the legal individual or business name or mailing
address of the permittee. A permittee is required to notify the issuing
office within 10 calendar days of such change.
(19) Transfers--In general, permits issued under 50 CFR part 22 are
not transferable. However, when authorized, permits issued under Sec.
22.80 may be transferred by the transferee providing written assurances
of sufficient funding of the conservation measures and commitment to
carry out the terms and conditions of the permit.
Copies of the draft forms are available to the public by submitting
a request to the Service Information Collection Clearance Officer using
one of the methods identified in ADDRESSES.
Title of Collection: Eagle Permits and Fees, 50 CFR parts 10, 13,
and 22.
OMB Control Number: 1018-0167
Form Numbers: FWS Forms 3-200-14, 3-200-15a, 3-200-16, 3-200-18, 3-
200-71, 3-200-72, 3-200-77, 3-200-78, 3-200-82, 3-202-11, 3-202-13, 3-
202-14, 3-202-15, 3-202-16, 3-1552, 3-1591, 3-2480, 3-202-91 (New), and
3-202-92 (New).
Type of Review: Revision of a currently approved collection.
Respondents/Affected Public: Individuals, businesses, and State/
local/Tribal governments. We expect the majority of applicants seeking
long-term permits will be in the energy production and electrical
distribution business.
Total Estimated Number of Annual Respondents: 8,469.
Total Estimated Number of Annual Responses: 8,469.
Estimated Completion Time per Response: Varies from 15 minutes to
200 hours, depending on activity.
Total Estimated Number of Annual Burden Hours: 38,991.
Respondent's Obligation: Required to obtain or retain a benefit.
Frequency of Collection: On occasion for applications; annually or
on occasion for reports.
Total Estimated Annual Non-hour Burden Cost: $7,249,980 (primarily
associated with application processing and administrative fees).
Send your written comments and suggestions on this information
collection by the date indicated in DATES to the Service Information
Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: PRB/
PERMA (JAO), 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or
by email to [email protected]. Please reference OMB Control Number
1018-0167 in the subject line of your comments.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We are evaluating the environmental impacts of the changes to the
regulations and are accepting public comments on a draft environmental
review document, as described above in DATES and ADDRESSES.
Endangered and Threatened Species
Section 7 of the Endangered Species Act of 1973, as amended (16
U.S.C. 1531-43), requires Federal agencies to ``ensure that any action
authorized, funded, or carried out . . . is not likely to jeopardize
the continued existence of any endangered species or threatened species
or result in the destruction or adverse modification of [critical]
habitat'' (16 U.S.C. 1536(a)(2)). Before issuance of the final
regulations and final environmental assessment (EA), the Service will
comply with provisions of the Endangered Species Act to ensure that the
rulemaking has no effect on or is not likely to jeopardize the
continued existence of any species designated as endangered or
threatened or modify or destroy its critical habitat and is consistent
with conservation programs for those species.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), E.O. 13175, and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same
[[Page 59623]]
controls as Federal public lands, to remain sensitive to Indian
culture, and to make information available to Tribes. We continue to
seek information from Tribes to determine whether the proposed rule
will have effects on Tribes or Tribal lands, sacred sites, or resources
may be affected by the proposed changes in this rule. Federally
recognized Native American Tribes can request government-to-government
consultation via letter submitted at any time during this rulemaking
process. The Service conducted a Tribal webinar on September 22, 2021,
during the ANPR public comment period as well as prior to publication
of this proposed rule. SevenTribal representatives provided written
comments.
Energy Supply, Distribution, or Use (E.O. 13211)
E.O. 13211 requires agencies to prepare statements of energy
effects when undertaking certain actions. This proposed rule is a
significant regulatory action under E.O. 12866; however, it will not
significantly affect energy supplies, distribution, or use. The
proposed permitting process streamlines permitting for wind energy and
power distribution; therefore, the rule is intended to ease
administrative burden on energy development and will not impact it
negatively. Therefore, this action is not a significant energy action
and no statement of energy effects is required.
Signing Authority
On September 23, 2022, Shannon Estenoz, Assistant Secretary for
Fish and Wildlife and Parks, approved this action for publication. On
September 23, 2022, Shannon Estenoz also authorized the undersigned to
sign this document electronically and submit it to the Office of the
Federal Register for publication as an official document of the
Department of the Interior.
List of Subjects
50 CFR Part 13
Administrative practice and procedure, Exports, Fish, Imports,
Plants, Reporting and recordkeeping requirements, Transportation,
Wildlife.
50 CFR Part 22
Exports, Imports, Reporting and recordkeeping requirements,
Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we hereby propose to amend parts 13 and 22 of
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-l, 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. Revise Sec. 13.5 to read as follows:
Sec. 13.5 Information collection requirements.
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this part and assigned
OMB Control Number 1018-0022, 1018-0070, 1018-0092, 1018-0093, or 1018-
0167 (unless otherwise indicated). Federal agencies 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.
Direct comments regarding the burden estimates or any other aspect of
the information collection to the Service's Information Collection
Clearance Officer at the address provided at 50 CFR 2.1(b).
0
3. Amend Sec. 13.11 by:
0
a. Revising paragraphs (d)(2) and (d)(3)(i); and
0
b. In the table in paragraph (d)(4):
0
i. Removing the 15 entries under ``Bald and Golden Eagle Protection
Act'' and adding 19 entries in their place; and
0
ii. Revising footnote 1.
The revisions and additions read as follows:
Sec. 13.11 Application procedures.
* * * * *
(d) * * *
(2) If regulations in this subchapter require more than one type of
permit for an activity and the permits are issued by the same office,
the issuing office may issue one consolidated permit authorizing take
caused by the activity in accordance with Sec. 13.1. You may submit a
single application in such cases, provided that the single application
contains all the information required by the separate applications for
each activity. Where more than one activity is consolidated into one
permit, the issuing office will charge the highest single fee for the
activity for which take is permitted. Administration fees are not
waived.
(3) * * *
(i) We will not charge a permit application fee to any Federal,
Tribal, State, or local government agency or to any individual or
institution acting on behalf of such agency, except that administration
fees for permits issued under subpart E of part 22 of this subchapter
will not be waived. Except as otherwise authorized or waived, if you
fail to submit evidence of such status with your application, we will
require the submission of all processing fees prior to the acceptance
of the application for processing.
* * * * *
(4) * * *
----------------------------------------------------------------------------------------------------------------
Permit
Type of permit CFR citation application Administration Amendment fee
fee fee \1\
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Bald and Golden Eagle Protection Act
Eagle Scientific Collecting......... 50 CFR part 22......... 100
Eagle Exhibition.................... 50 CFR part 22......... 75
Eagle--Native American Religion..... 50 CFR part 22......... No fee
Eagle Take Permits--Depredation and 50 CFR part 22......... 100
Protection of Health and Safety.
Golden Eagle Nest Take.............. 50 CFR part 22......... 100 ................. 50
Eagle Transport--Scientific or 50 CFR part 22......... 75
Exhibition.
Eagle Transport--Native American 50 CFR part 22......... No fee
Religious Purposes.
Specific Permit Eagle Disturbance 50 CFR part 22......... 2,500 ................. 500
Take--Commercial.
Specific Permit Eagle Disturbance 50 CFR part 22......... 500 ................. 150
Take--Noncommercial.
Specific Permit Eagle Incidental 50 CFR part 22......... 28,000 8,000 500
Take.
Transfer of a Subpart E Eagle Permit 50 CFR part 22......... 1,000
Specific Permit Eagle Nest Take-- 50 CFR part 22......... 2,500 ................. 500
Single nest, Commercial.
[[Page 59624]]
Specific Permit Eagle Nest Take-- 50 CFR part 22......... 500 ................. 150
Single nest, Noncommercial.
Specific Permit Eagle Nest Take-- 50 CFR part 22......... 5,000 ................. 500
Multiple nests.
General Permit--1 year.............. 50 CFR part 22......... 100
General Permit--5 years............. 50 CFR part 22......... 500
General Permit--Power lines 50 CFR part 22......... 500 5,000 per State
incidental take.
General Permit--Wind incidental take 50 CFR part 22......... 500 2,625 per turbine 500
Eagle Take--Exempted under ESA...... 50 CFR part 22......... .............. No fee
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ An additional Administration Fee will be assessed at the time of application.
* * * * *
0
4. Amend Sec. 13.12 by:
0
a. Revising paragraph (a)(1)(ii); and
0
b. Removing the 8 entries in table 1 to paragraph (b) under ``Eagle
permits'' and adding in their place 10 entries.
The revisions and additions read as follows:
Sec. 13.12 General information requirements on applications for
permits.
(a) * * *
(1) * * *
(ii) If the applicant is an individual, the date of birth,
occupation, and any business, agency, organizational, or institutional
affiliation associated with the wildlife or plants to be covered by the
license or permit; or
* * * * *
(b) * * *
Table 1 to Paragraph (b)
------------------------------------------------------------------------
Type of permit Section
------------------------------------------------------------------------
* * * * * * *
Eagle permits:
Scientific or exhibition...................... 22.50
Indian religious use.......................... 22.60
Falconry purposes............................. 22.70
Depredation and protection of health and 22.100
safety.......................................
Permits for incidental take of eagles......... 22.200 or 22.210
Permits for incidental take of eagles by power 22.200 or 22.210
lines........................................
Permits for disturbance take of eagles........ 22.200 or 22.210
Permits for nest take of eagle................ 22.200 or 22.210
Permits for golden eagle nest take from 22.325
resource development.........................
Permits for bald eagle take exempted under the 22.400
Endangered Species Act.......................
------------------------------------------------------------------------
Sec. 13.24 [Amended]
0
5. Amend Sec. 13.24 in the introductory text of paragraph (c) by
removing ``Sec. 22.80 of this subchapter B,'' and adding in its place
``part 22, subpart E, of this subchapter''.
Sec. 13.25 [Amended]
0
6. Amend Sec. 13.25 in paragraphs (b) introductory text and (f) by
removing ``Sec. 22.80 of this subchapter B'' wherever it appears and
adding in its place ``part 22, subpart E, of this subchapter''.
PART 22--EAGLE PERMITS
0
7. The authority citation for part 22 continues to read as follows:
Authority: 16 U.S.C. 668-668d; 703-712; 1531-1544.
0
8. Amend Sec. 22.6 by:
0
a. Revising the definitions of ``Eagle management unit (EMU)'' and
``Eagle nest'';
0
b. Adding in alphabetical order a definition for ``General permit'':
0
c. Revising the definition of ``In-use nest''; and
0
d. Adding in alphabetic order a definition of ``Incidental take''.
The revisions and additions read as follows:
Sec. 22.6 Definitions.
* * * * *
Eagle management unit (EMU) means a geographically bounded region
within which permitted take is regulated to meet the management goal of
maintaining stable or increasing breeding populations of bald or golden
eagles. The Atlantic EMU is CT, DE, FL, GA, MA, MD, ME, NH, NJ, NY, NC,
PA, RI, SC, VA, VT, and WV. The Mississippi EMU is AL, AR, IL, IN, IA,
KY, LA, MI, MN, MO, MS, OH, TN, and WI. The Central EMU is KS, ND, NE,
NM, OK, SD, and TX; portions of CO, NM, and WY east of the Continental
Divide; and portions of MT east of Hill, Chouteau, Cascade, Meagher,
and Park Counties. The Pacific EMU is AK, AZ, CA, ID, NV, OR, UT, WA;
portions of CO, NM, and WY west of the Continental Divide; and in MT
Hill, Chouteau, Cascade, Meagher, and Park Counties and all counties
west of those counties. An EMU may be further divided between north and
south along the 40th Parallel.
Eagle nest means any assemblage of materials built, maintained, or
used by bald eagles or golden eagles for the purpose of reproduction.
An eagle nest remains an eagle nest until it becomes so diminished or
the nest substrate upon which it is built fails, such that the nest is
no longer usable and is not likely to become usable to eagles, as
determined by a Federal, State, or Tribal eagle biologist.
* * * * *
General permit means a permit that is issued to an individual or
entity with nationwide or regional standard conditions for a category
or categories of
[[Page 59625]]
activities that are substantially similar in nature.
* * * * *
In-use nest means a bald or golden eagle nest characterized by the
presence of one or more viable eggs or dependent young in the nest, or,
for golden eagles only, adult eagles on the nest in the past 10 days
during the breeding season.
Incidental take means take that results from, but is not the
purpose of, an activity.
* * * * *
0
9. Amend Sec. 22.12 by adding paragraph (c) to read as follows:
Sec. 22.12 Illegal activities.
* * * * *
(c) Application for a permit does not release you from liability
for any take that occurs prior to issuance of, or outside the terms of,
a permit.
0
10. Revise the heading of subpart C to read as follows:
Subpart C--Eagle Possession Permit Provisions
Sec. 22.80 [Removed and Reserved]
0
11. Remove and reserve Sec. 22.80.
Sec. 22.85 [Removed and Reserved]
0
12. Remove and reserve Sec. 22.85.
0
13. Add subpart E, consisting of Sec. Sec. 22.200 through 22.300, to
read as follows:
Subpart E--Take of Eagles for Other Interests
Sec.
22.200 Specific permits.
22.210 General permits.
22.215 Conditions of permits.
22.220 Compensatory mitigation.
22.250 Permits for incidental take of eagles by wind energy
projects.
22.260 Permits for incidental take of eagles by power lines.
22.280 Permits for disturbance take of eagles.
22.300 Permits for take of eagle nests.
Sec. 22.200 Specific permits.
(a) Purpose. Specific permits authorize the take of bald eagles or
golden eagles for other interests that do not meet general permit
eligibility requirements or for entities that do not wish to obtain a
general permit if applicable.
(b) Eligibility. To qualify for a specific permit, you must meet
the following eligibility requirements. If conducting an activity
identified in Sec. 22.250, Sec. 22.260, Sec. 22.280, or Sec.
22.300, you must also meet any eligibility requirements identified in
the relevant section.
(1) Permits are issued to the individual or entity conducting the
activity, such as the owner or operator of a project.
(2) Upon receipt of a specific permit application, the Service may
direct you to apply for a general permit if applicable. If so, the
Service will provide a letter of authorization to keep in your records
stating the conditions under which the activity qualifies for a general
permit.
(c) How to apply for a specific permit. (1) Submit a completed
application form as specified in Sec. 22.250(a), Sec. 22.260(a),
Sec. 22.280(a), or Sec. 22.300(a), as applicable, or Form 3-200-71 if
the activity does not correspond with a particular permit type. Submit
forms to the Regional Director of the region where you will conduct
your activity. If your activity spans multiple regions, submit your
application to the region of your U.S. mailing address. The Service
will assign the appropriate administering region. You can find the
current contact information for Regional Directors in Sec. 2.2 of
subchapter A of this chapter.
(2) Your application must include:
(i) A description of the activity that will cause the take to be
authorized, including the location, seasonality, and duration of the
activity.
(A) If applying under Sec. 22.250 for wind energy projects, that
description must include the number of turbines, rotor diameter, and
location coordinates of each turbine.
(B) If applying under Sec. 22.260 for power lines, include the
State and county(ies) of coverage, total miles of transmission and
distribution line, number of distribution poles, and the number of
distribution poles that are not electrocution-safe at time of
application.
(C) If applying under Sec. 22.280 or Sec. 22.300, include the
location of known nest(s) and nest status (such as in-use or
alternate).
(ii) Justification of why there is no practicable alternative to
take that would protect the interest to be served.
(iii) An eagle impacts assessment, including the species affected,
an estimate of the number of eagles using the project area, projected
take, and a description of methods used to make the required findings.
If the Service has officially issued or endorsed, through rulemaking
procedures, survey, modeling, take estimation, or other standards for
the activity that will take eagles, you must follow them and include in
your application all the information thereby obtained, unless the
Service waives this requirement for your application.
(iv) Implemented and proposed steps to avoid, minimize, compensate
for, and monitor impacts on eagles.
(v) Alternative actions considered and the reasons why such
alternatives are not practicable.
(vi) Any supplemental information necessary for the Service to make
an adequate determination on the application (see Sec. 13.21 of this
subchapter).
(vii) Payment of the required application and administration fee(s)
(see Sec. 13.11(d)(4) of this subchapter), and, if required, proposed
compensatory mitigation or eagle credits to be obtained from a Service-
approved or in-lieu fee program. All compensatory mitigation must
comply with the provisions of Sec. 22.220.
(3) The applicant must be the entity conducting the activity. The
applicant is responsible for compliance with the permit and must have
the authority to implement the required beneficial practices.
Applicants are most commonly the owner or manager of the entity
conducting the activity. Contractors or consultants may assist in
completing applications and/or conducting work as a subpermittee but
may not be a permit holder.
(d) Issuance criteria. Upon receiving a complete application, the
Regional Director will decide whether to issue a permit based on the
general criteria of Sec. 13.21 of this subchapter and whether the
application meets the following requirements:
(1) The applicant is eligible for a specific permit. However:
(i) The Service may deny applications for specific permits if we
determine the project does not require a permit.
(ii) The Service may grant a letter of authorization to apply for a
general permit if the Service determines the project is consistent with
fatality estimates for general permits even though it does not
otherwise meet general-permit eligibility criteria. This paragraph
(d)(1)(ii) applies only to existing projects applying for incidental
take of eagles by wind energy projects (Sec. 22.250). You must submit
a specific permit application and request a determination for general
permit eligibility. Your specific permit application fee may be
refunded (Sec. 13.11(d)(1) of this subchapter); however, the
administration fee will not be refunded.
(2) The take:
(i) Is necessary to protect a legitimate interest in a particular
locality; and
(ii) Results from, but is not the purpose of, the activity.
(3) The amount of take the Service authorizes under the permit is
compatible with the preservation of the bald eagle and the golden
eagle, including consideration of the effects of
[[Page 59626]]
other permitted take and other factors affecting bald eagle and golden
eagle populations.
(4) The applicant has proposed avoidance and minimization measures
to reduce the take to the maximum degree practicable relative to the
magnitude of the activity's impacts to eagles. These measures must meet
or exceed the requirements of the general permit (Sec. 22.210), except
where not practicable.
(5) The applicant has proposed to either: implement compensatory
mitigation measures that comply with the standards in Sec. 22.220; or
secure required eagle credits from a Service-approved conservation bank
or in-lieu fee program.
(6) The applicant has proposed monitoring plans that are sufficient
to determine the effects on eagle(s) of the proposed activity.
(7) The proposed reporting is sufficient for the Service to
determine the effects on eagle(s).
(8) Any additional factors that may be relevant to our decision
whether to issue the permit.
(e) Modifications to your permit. An amendment fee is required to
make substantive amendments to the permit during the permit tenure (see
Sec. 13.11(d)(5) of this subchapter). The Service will also charge an
administration fee for permittee- or Service-initiated amendments (see
Sec. 13.23 of this subchapter) that the Service determines to be
significant, such as modifications that result in recalculating
estimated take, reevaluating compensatory mitigation requirements,
evaluating impacts of a new project size or arrangement, or requiring
additional environmental review.
(f) Tenure. The tenure of each permit will be designated on the
face of the permit. Specific permits may be valid for a maximum of 30
years. Permit tenure may be less, as restricted by the provisions for
specific activities set forth in Sec. 22.250, Sec. 22.260, Sec.
22.280, or Sec. 22.300 or as appropriate to the duration and nature of
the proposed activity, including mitigation requirements.
Sec. 22.210 General permits.
(a) Purpose. General permits authorize the take of bald eagles or
golden eagles for other interests that meet the eligibility
requirements for general permits set forth in Sec. 22.250, Sec.
22.260, Sec. 22.280, or Sec. 22.300.
(b) Eligibility. To qualify for a general permit, you must be
conducting an activity identified in Sec. 22.250, Sec. 22.260, Sec.
22.280, or Sec. 22.300 and meet any additional eligibility
requirements identified in the relevant section.
(1) Permits are issued to the individual or entity conducting the
activity, such as the owner or operator of a project. The applicant is
responsible for compliance with the permit and must have the authority
to implement the required beneficial practices. Contractors or
consultants may assist in completing applications and/or conducting
work as a subpermittee but may not be a permit holder.
(2) Even if you are otherwise eligible for a general permit, the
Service may notify you that you must apply for a specific permit if:
(i) The Service finds that the project does not comply with the
requirements for a general permit; or
(ii) For wind projects authorized under Sec. 22.250, four eagle
mortalities of either species have been discovered at the project.
(c) How to apply. (1) Register with the Service by submitting the
appropriate application form specified in Sec. 22.250(a), Sec.
22.260(a), Sec. 22.280(a), or Sec. 22.300(a), as applicable, to the
Regional Director of the region in which your activity will be
conducted. If your activity spans multiple regions, submit your
application to the region of your U.S. mailing address. The Service
will assign the appropriate administering region. You can find the
current contact information for Regional Directors in Sec. 2.2 of
subchapter A of this chapter.
(2) Your application must include:
(i) A description of the activity that will cause the take to be
authorized, including the location, seasonality, and duration of the
activity.
(A) If applying under Sec. 22.250 for wind energy projects, that
description must include the number of turbines, rotor diameter, and
location coordinates of each turbine.
(B) If applying under Sec. 22.260 for power lines, include the
State and county(ies) of coverage, total miles of transmission and
distribution line, number of distribution poles, and the number of
distribution poles that are not electrocution-safe at time of
application.
(C) If applying under Sec. 22.280 or Sec. 22.300, include the
location of known nest(s) and nest status (such as in-use or
alternate).
(ii) Justification of why there is no practicable alternative to
take that would protect the interest to be served.
(iii) Duration of the permit requested.
(iv) Certification that the activity complies with all other
applicable Federal, State, Tribal, and local laws. This includes
certifying that the activity for which take is to be authorized by the
general permit either does not affect a property that is listed, or is
eligible for listing, in the National Register of Historic Places as
maintained by the Secretary of the Interior; or that the applicant has
obtained, and is in compliance with, a written agreement with the
relevant State Historic Preservation Officer (SHPO) or Tribal Historic
Preservation Officer (THPO) that outlines all measures the applicant
will undertake to mitigate or prevent adverse effects to the historic
property.
(v) Payment of required application and administration fee(s) (see
Sec. 13.11(d)(4) of this subchapter).
(vi) A certification that the applicant agrees to acquire eagle
credits, if required, from a Service-approved in-lieu fee program
within 90 days of the effective date of the permit.
(d) Issuance criteria. Upon registering by submitting an
application under paragraph (c) of this section, the Service will
automatically issue a general permit to authorize the take requested in
the application. In registering, you must certify that you meet the
general criteria of Sec. 13.21 of this subchapter and the following
issuance criteria:
(1) You are conducting an activity that qualifies for a general
permit.
(2) The take:
(i) Is necessary to protect a legitimate interest in a particular
locality; and
(ii) Results from, but is not the purpose of, the activity.
(3) The activity is consistent with the specific requirements
applicable to that activity as described in Sec. 22.250, Sec. 22.260,
Sec. 22.280, or Sec. 22.300.
(4) You will implement the general permit conditions applicable to
your activity, including required avoidance, minimization, monitoring,
and reporting requirements.
(5) You will implement the required eagle credits from a Service-
approved conservation bank or in-lieu fee program within 90 days of the
effective date of your permit.
(e) Program continuation. The Service will regularly evaluate
whether the take of bald eagles and golden eagles under general permits
remains compatible with the preservation of eagles. If the Service
finds, through the best available information, that the general permit
program is not compatible with the preservation of bald eagles or
golden eagles, the Service may suspend issuing general permits in all
or in part after publishing a notice in the Federal Register. The
Service may reinstate issuance of general permits after publishing
another notice in the Federal Register or by promulgating additional
rulemaking. If the Service suspends general permitting, take currently
authorized under a general permit
[[Page 59627]]
remains authorized until expiration unless you are notified otherwise.
(f) Tenure. The tenure of each permit will be designated on the
face of the permit. General permits may be valid for a maximum of 5
years. Permit tenure may be less, as restricted by the provisions in
Sec. 22.250, Sec. 22.260, Sec. 22.280, or Sec. 22.300 as
applicable.
Sec. 22.215 Conditions of permits.
(a) In addition to meeting the conditions set forth in part 13 of
this subchapter, you must comply with the terms of your permit. Your
authorization is subject to the following additional permit terms and
conditions:
(1) Your permit will specify the type of take authorized (i.e.,
incidental take, disturbance take, or nest take) and may specify the
amount, location, or other restrictions on the take authorized. You are
not authorized for any additional types of take not specified on the
face of your permit.
(2) Your permit will require implementation of avoidance,
minimization, monitoring, and adaptive management measures consistent
with the relevant regulations in this subpart.
(3) For permits that authorize the incidental take of eagles, you
are required to implement methods for discovering eagles at your
project.
(i) Onsite personnel, such as staff, contractors, and volunteers,
must be trained how to visually scan for eagle remains and must conduct
visual scans when onsite.
(ii) You must promptly notify the Service of any eagle(s) found
injured or dead at the activity site, regardless of whether the injury
or death resulted from your activity. Your notification must include
species, condition, discovery date, location, and other relevant
information.
(iii) Dispose of eagles in accordance with Service instructions,
which may include shipping eagles to the National Eagle Repository or
other designated facility.
(4) You must comply with all Service reporting requirements in this
subpart. You must annually report incidental take and disturbance take
using Form 3-202-15. You must report nest take using Form 3-202-16.
(5) You must comply with all compensatory mitigation requirements
in accordance with Sec. 22.220, including any additional requirements
contained in Sec. 22.250, Sec. 22.260, Sec. 22.280, or Sec. 22.300
if applicable.
(6) You must keep records of all activities conducted under this
permit, including any subpermittee activities carried out under the
authority of this permit (see Sec. 13.46 of this subchapter). Your
records must include an internal, discovered-eagle reporting system for
bald eagle and golden eagle remains found at the site of the activity.
(7) By accepting this permit, you are authorizing the Service to
inspect the location and records relating to the activity (see Sec.
13.21(e) of this subchapter). The Service may require you to
participate in the Service's program-wide monitoring, such as providing
access to Service staff or contractors. The Service will provide
reasonable notice for requests to access sites and negotiate with the
permittee about practicable and appropriate access conditions to
protect human health and safety and address physical, logistical, or
legal constraints.
(8) You are responsible for ensuring that the activity for which
take is authorized complies with all Federal, Tribal, State, and local
laws and regulations applicable to eagles.
(9) You may designate subpermittees to conduct some or all of your
permitted activities. Subpermittees must be at least 18 years of age.
You must designate subpermittees in writing, including the name and
contact information of the individual or entity and the date(s),
location(s), and activitie(s) for which take is authorized.
Subpermittees must have a copy of their subpermittee designation and
the permit when conducting activities and display them upon request
whenever exercising the permit authority. You are responsible for
ensuring that your subpermittees are qualified to perform the work and
comply with the terms of your permit. You are also responsible for
maintaining current records of designated subpermittees. As the
permittee, you are ultimately legally responsible for compliance with
the terms and conditions of this permit, and that responsibility may
not be delegated.
(b) The Service may amend, suspend, or revoke a permit issued under
this subpart if new information indicates that revised permit
conditions are necessary, or that suspension or revocation is
necessary, to safeguard local or regional eagle populations. The
provision in this paragraph (b) 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 of this subchapter.
(c) 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.
Sec. 22.220 Compensatory mitigation.
(a) Your permit conditions may include a requirement to compensate
for the take of eagles, in which case that requirement will be
specified on the face of your permit.
(1) Any permit authorizing take that would exceed the applicable
EMU take limit will require compensatory mitigation. Compensatory
mitigation for this purpose must ensure the preservation of the
affected eagle species by reducing another ongoing form of mortality by
an amount equal to or greater than the unavoidable mortality or by
increasing the eagle population of the affected species by an equal or
greater amount.
(2) A permit may require compensatory mitigation when the Service
determines from the best available information that the persistence of
the local area population of an eagle species in the project area may
not be maintained.
(3) Compensatory mitigation will be calculated to account for both
the project's impacts and the population status of the species for
which incidental take is requested.
(b) All required compensatory mitigation actions must:
(1) Be contingent upon application of avoidance and minimization
measures to reduce the take to the maximum degree practicable relative
to the magnitude of the project's impacts on eagles.
(2) Be sited within:
(i) The same EMU where the permitted take will occur; or
(ii) Another EMU, but only if the Service has reliable data showing
that the population affected by the take includes individuals that are
reasonably likely to use that EMU during part of their seasonal
migration.
(3) Be sited within the same local area population where the
permitted take will occur if required by the Service due to concern
regarding the persistence of a particular local area population.
(4) Use the best available science in formulating, crediting, and
monitoring the long-term effectiveness of mitigation measures.
(5) Be additional to and improve upon the baseline conditions for
the affected eagle species in a manner that is demonstrably new and
would not have occurred without the compensatory mitigation.
(6) Be durable and, at a minimum, maintain its intended purpose for
as long as the impacts of the authorized take persist.
(7) Include mechanisms to account for and address uncertainty and
risk of
[[Page 59628]]
failure of a compensatory mitigation measure, including financial
assurances.
(c) Compensatory mitigation must be approved by the Service and may
include conservation banks, in-lieu fee programs, or permittee-
responsible mitigation as mitigation providers.
(1) General permittees meet this requirement by obtaining required
credits from a Service-approved third-party mitigation provider.
Specific permittees can meet this requirement by obtaining required
credits from a Service-approved third-party mitigation provider or
meeting the requirements to be a permittee-responsible mitigation
provider as described in paragraph (c)(2) of this section. Third-party
mitigation providers, such as in-lieu fee programs and conservation
banks, obtain Service approval by meeting the requirements to be a
mitigation provider as described in paragraph (c)(2) of this section.
(2) To obtain approval as a permittee-responsible mitigation
provider, providers must submit a mitigation plan to the Service
sufficient to demonstrate that the standards set forth in paragraph (b)
of this section can be met. At a minimum, this must include a
description of the mitigation, the benefit to eagles, the location(s)
where projects will be implemented, the EMU and local area population
served, the number of credits provided, and an explanation of the
rationale for this determination. The Service must approve the
mitigation plan prior to implementation.
Sec. 22.250 Permits for incidental take of eagles by wind energy
projects.
(a) Purpose. The regulations in this section authorize the
incidental killing or injury of bald eagles and golden eagles
associated with the operation of wind-energy projects. Apply using Form
3-200-71.
(b) Definitions. The following terms used in this section have the
meanings set forth in this paragraph (b):
Existing project. Infrastructure that was operational prior to
[EFFECTIVE DATE OF THE FINAL RULE], as well as infrastructure that was
sufficiently far along in the planning process on that date that
complying with new requirements would be impracticable, including if an
irreversible or irretrievable commitment of resources has been made
(e.g., site preparation was already underway or infrastructure was
partially constructed).
Relative abundance. The average number of eagles of each species
expected to be seen by a qualified person who observes for eagles for
one hour at the optimal time of the day for detecting the species, and
who travels no more than one kilometer during the observation session.
Relative abundance values determined for a project must be based on
publicly available eBird relative abundance products (eBird is an
online database of bird distribution and abundance. Cornell Lab of
Ornithology, Ithaca, New York. Available at: https://science.ebird.org/en/status-and-trends/faq#mean-relative-abundance). You may use the
relative abundance map produced by the Service (available at: https://fws.gov/) in lieu of calculating relative abundance values yourself.
(c) Eligibility for a general permit. To qualify for a general
permit, you must meet the requirements of Sec. 22.210, not be denied
eligibility per paragraph (d)(3) of this section, be located in the
contiguous 48 States, and:
(1) To be eligible, all turbines associated with a project must be
located in areas characterized by seasonal relative abundance values
that are less than the relative abundance values for the date range for
each species listed in paragraphs (c)(1)(i) and (ii) of this section.
Additionally, golden eagle nests must be at least 2 miles and bald
eagle nests must be at least 660 feet from any turbines.
(i) Relative abundance value thresholds for bald eagles throughout
the year are as follows:
Table 1 to Paragraph (c)(1)(i)
------------------------------------------------------------------------
Bald eagle
Date range relative
abundance
------------------------------------------------------------------------
1. Feb 22-Apr 11........................................ 1.272
2. Apr 12-Sep 6......................................... 0.812
3. Sep 7-Dec 13......................................... 0.973
4. Dec 14-Feb 21........................................ 1.151
Average of periods 1 and 3.............................. 1.018
------------------------------------------------------------------------
(ii) Relative abundance value thresholds for golden eagles
throughout the year are as follows:
Table 2 to Paragraph (c)(1)(ii)
------------------------------------------------------------------------
Golden eagle
Date range relative
abundance
------------------------------------------------------------------------
1. Feb 15-May 16........................................ 0.206
2. May 17-Sep 27........................................ 0.118
3. Sep 28-Dec 13........................................ 0.168
4. Dec 14-Feb 14........................................ 0.229
Average of periods 1 and 3.............................. 0.145
------------------------------------------------------------------------
(2) For existing projects only, if you have received a letter of
authorization from the Service (see Sec. 22.200(d)(1)(ii)), the
project is eligible for a general permit.
(d) Discovered eagle provisions for general permits. You must
implement procedures to discover eagles in accordance with the
provisions set forth in Sec. 22.215(a)(3) and as required by your
permit conditions. In following those protocols:
(1) You must include in your annual report the discovery of any
eagle found.
(2) If you discover the take of three eagles of any one species
during the tenure of the general permit, you must notify the Service in
writing within 2 weeks of discovering the take of a third eagle and
implement an adaptive management measure(s). Your notification must
include the reporting data required in your permit conditions, your
adaptive management plan, and a description and justification of which
adaptive management approaches you will be implementing.
(3) If you discover the take of four eagles of any one species
during the tenure of the general permit, you must notify the Service in
writing within 2 weeks of discovering the take of the fourth eagle.
Your notification must include the reporting data required in your
permit conditions, your adaptive management plan, and a description and
justification of which adaptive management approaches you will be
implementing. The project may continue to be authorized to incidentally
take eagles through the term of the existing general permit but will be
denied eligibility for future general permits for incidental take. You
may apply for a specific permit for incidental take at that project.
You may request reconsideration of this denial by following the review
procedures set forth at Sec. 13.29 of this subchapter, including
providing the information required in Sec. 13.29(b)(3).
(4) If the Service conducts monitoring at a wind project, eagles
discovered by the Service may be attributed to the wind project. To
adjust for potential differences in detection rate for Service-
monitoring, the number of eagles attributed to the project as
``discovered'' in accordance with this paragraph (d) will be adjusted
based on the Service-monitoring detection rate.
(e) Eligibility for a wind energy specific permit. To qualify for a
specific permit, you must meet the requirements of Sec. 22.200. In
determining whether to issue a permit, the Service will review the
application materials provided, including the eagle impacts assessment.
The Service will use the best available data to estimate the take of
eagles that will result from the proposed activity.
(f) Wind energy permit conditions. The following conditions apply
to all general and specific permits. Specific permits may include
additional project-specific permit conditions.
(1) Develop an adaptive management plan, including circumstances
that
[[Page 59629]]
trigger implementation and management measures to be considered.
(2) Remove anthropogenic hazardous attractants to eagles and avoid
creating new anthropogenic eagle attractants throughout the project,
including resources that could attract foraging, roosting, and/or
nesting behavior.
(3) Minimize collision and electrocution risks in the project,
including collisions with turbines, vehicles, towers, and power lines.
(4) Comply with all of the regulations and permit conditions in
part 21 of this subchapter, including any provisions specific to
authorizing incidental take of migratory birds.
(5) Submit required reports to the Service.
(6) Pay the required application and administration fee(s) (see
Sec. 13.11(d)(4) of this subchapter).
(7) Implement required compensatory mitigation. You must keep
records to document compliance with this requirement and provide them
to the Service with your annual report.
(i) For wind energy specific permits, you must submit a plan to the
Service in accordance with Sec. 22.200(c) and implement the
compensatory-mitigation requirements on the face of your permit.
(ii) For wind energy general permits, you must obtain eagle credits
from a Service-approved conservation bank or in-lieu fee program based
on the hazardous volume of the project in cubic-kilometers. The
hazardous volume of a project is calculated as the number of turbines
multiplied by 0.200[pi](d/2)[caret]2 where d is the diameter of the
blades in kilometers. You must obtain eagle credits at the following
rates: Atlantic/Mississippi EMUs: 6.56 eagles/km\3\, Central EMU: 7.88
eagles/km\3\, and Pacific EMU: 11.48 eagles/km\3\.
(g) Tenure of permits. General permits are valid for 5 years from
the date of registration. Specific permits may be valid for up to 30
years.
Sec. 22.260 Permits for incidental take of eagles by power lines.
(a) Purpose. The regulations in this section authorize the
incidental killing or injury of bald eagles and golden eagles
associated with power line activities. Apply using Form 3-200-92.
(b) Definitions. The following terms used in this section have the
meanings set forth in this paragraph (b):
Collision response strategy. A plan that describes the steps the
permittee will take to identify, assess, and respond to eagle
collisions with power-line infrastructure. The assessment should
include the species, habitat, daily and seasonal migration patterns,
eagle concentration areas, and other local factors that might be
contributing to eagle collisions. The response options should consider
eagle collisions in the engineering design (e.g., burying the line,
rerouting the line, or modifying the line to reduce the number of
wires), when modifying habitat, and when marking the power line.
Eagle-shooting response strategy. A plan to respond to eagle-
shooting events where one or more eagles are discovered near power-line
infrastructure and the cause of death is shooting. The plan must
outline the steps to identify when eagle shooting occurs, options for
response, and implementation of the response.
Electrocution-safe. A power-pole configuration that minimizes eagle
electrocution risk by using a design that provides sufficient
separation between phases and between phases and grounds to accommodate
the wrist-to-wrist or head-to-foot distance of an eagle or by covering
exposed parts with insulators to physically separate electricity from
eagles. If insulators are used, they must be in good condition and
regularly maintained. For conversions from an above-ground line to a
buried line, the buried portion is considered ``electrocution-safe.''
Proactive retrofit strategy. A plan to convert existing
infrastructure to electrocution-safe infrastructure. The proactive
retrofit strategy must include information on how poles are identified
as not electrocution-safe, how poles are prioritized for retrofit, what
retrofit designs are used, and how the strategy is to be implemented.
The proactive retrofit strategy must identify annual targets for the
number of poles to be retrofitted.
Reactive retrofit strategy. A plan to respond to incidents where
eagles are electrocuted or killed. The reactive retrofit strategy must
include information on how eagle electrocutions are detected and
identified. Determining which poles to retrofit must be based on the
risk to eagles and not on other factors, such as convenience or cost.
The pole that caused the electrocution must be retrofitted, unless the
pole is already electrocution-safe. A total of 11 poles or a half-mile
segment must be retrofitted, whichever is less. The typical pole
selection will be the pole that caused the electrocution and five poles
in each direction. However, if retrofitting other poles in the circuit
provides more benefit to eagles, those poles may be retrofitted by
prioritizing the least-safe poles closest to the electrocution event.
Poles outside of the circuit that caused the electrocution may be
counted towards this retrofit requirement only if all poles in the
circuit are already electrocution-safe.
(c) Eligibility for a general permit for incidental take. To
qualify for a general permit, you must meet the requirements of Sec.
22.210.
(d) General permit conditions for power lines. Project permittees
must:
(1) Ensure that all new construction and reconstruction of poles is
electrocution-safe, as limited by the need to ensure human health and
safety.
(2) Implement a reactive retrofit strategy following all
electrocutions of eagles.
(3) Implement a proactive retrofit strategy to convert all existing
infrastructure to electrocution-safe. You must convert one-tenth of
infrastructure that is not electrocution-safe as of the effective date
of the general permit to electrocution-safe during the duration of the
permit. If you renew your general permit, the same number of poles must
be retrofit, such that all poles are retrofit within 50 years or by the
expiration of the tenth, 5-year general permit.
(4) Implement an eagle collision response strategy.
(5) For new construction and reconstruction, incorporate
information on eagles (population status of the species) into siting
and design considerations as practicable, such as siting power lines a
safe distance from nests, foraging areas, and roosts, subject to human
health and safety, and/or significant adverse effects to biological,
cultural, or historical resources.
(6) Implement an eagle-shooting response strategy.
(7) Comply with all of the regulations and permit conditions of
part 21 of this subchapter, including any provisions specific to
authorizing incidental take of migratory birds.
(8) Train personnel to scan for eagle remains when onsite and
implement internal reporting and recordkeeping procedures.
(9) Submit required reports to the Service using Form 3-202-15.
(10) Pay the required application and administration fee as set
forth in Sec. 13.11(d)(4) of this subchapter.
(e) Eligibility for a specific permit for incidental take. To
qualify for a specific permit, you must meet the requirements of Sec.
22.200.
(f) Tenure of permits. Power line general permits are valid for 5
years. Specific permits may be valid for up to 30 years.
Sec. 22.280 Permits for disturbance take of eagles.
(a) Purpose. The regulations in this section authorize the
incidental take of bald eagles or golden eagles by
[[Page 59630]]
disturbance, as defined in Sec. 22.6. Purposeful disturbance of nests
is not authorized under this section. Apply using Form 3-200-91.
(b) Eligibility for a general permit for disturbance. To qualify
for a general permit, you must meet the requirements of Sec. 22.210,
and your activities must comply with the provisions set forth in
paragraphs (b)(1) through (8) of this section. Activities occurring
farther than the distances specified do not require a permit because
they are unlikely to cause disturbance. The following activities are
eligible for a general permit:
(1) Building construction and maintenance within 660 feet of an in-
use bald eagle nest or within 330 feet of any bald eagle nest.
(2) Linear infrastructure construction and maintenance (e.g.,
roads, rail, trails, power lines, and other utilities) within 660 feet
of an in-use bald eagle nest or within 330 feet of any bald eagle nest.
(3) Alteration of shorelines and water bodies (e.g., shorelines,
wetlands, docks, moorings, marinas, and water impoundment) within 660
feet of an in-use bald eagle nest or within 330 feet of any bald eagle
nest.
(4) Alteration of vegetation (e.g., mowing, timber operations, and
forestry practices) within 660 feet of an in-use bald eagle nest or
within 330 feet of any bald eagle nest.
(5) Motorized recreation (e.g., snowmobiles, motorized watercraft,
etc.) within 330 feet of an in-use bald eagle nest.
(6) Nonmotorized recreation (e.g., hiking, camping, fishing,
hunting, canoeing, etc.) within 330 feet of an in-use bald eagle nest.
(7) Aircraft operation (e.g., helicopters and fixed-wing aircraft)
within 1,000 feet of an in-use bald eagle nest.
(8) Loud, intermittent noises (e.g., blasting) within one-half-mile
of an in-use bald eagle nest, where the noise is intermittent or
otherwise not present when the nest is initiated. Noise that is present
prior to nest initiation and sufficiently consistent that eagles
demonstrate tolerance to the activity does not require a permit.
(c) Eligibility for a specific permit for disturbance. To qualify
for a specific permit, you must meet the requirements of Sec. 22.200.
You may apply for a specific permit if your activity may result in
incidental disturbance of a golden eagle nest, incidental disturbance
of a bald eagle nest for an activity not specified in paragraph (b) of
this section, or disturbance to a foraging area.
(d) Disturbance permit conditions. (1) Implement measures to avoid
and minimize nest disturbance, including disturbance due to noise from
human activities, visibility of human activities, proximity to nest,
habitat alteration, and indirect stressors.
(2) Avoid activities that may negatively affect the nesting
substrate, such as the survivability of the nest tree.
(3) Implement monitoring of in-use nests that is sufficient to
determine whether nestlings have fledged from the nest and submit this
information on your annual report.
(e) Reporting. You must submit an annual report using Form 3-202-
15. The annual report is due within 30 days of the expiration of your
permit or prior to requesting renewal of your permit, whichever is
first.
(f) Tenure of permits. General permits for disturbance issued under
the regulations in this section are valid for a maximum of 1 year. The
tenure of specific permits for disturbance is set forth on the face of
the permit and may not exceed 5 years.
Sec. 22.300 Permits for take of eagle nests.
(a) Purpose. The regulations in this section authorize the take of
a bald eagle nest or a golden eagle nest, including relocation,
removal, and otherwise temporarily or permanently preventing eagles
from using the nest structure. Apply using Form 3-200-72.
(b) Definitions. The following terms used in this section have the
meanings set forth in this paragraph (b):
Nest take for emergency. Take of an in-use or alternate eagle nest
where necessary to alleviate an existing safety emergency, or to
prevent a rapidly developing safety emergency that is otherwise likely
to result in bodily harm to humans or eagles while the nest is still in
use by eagles for breeding purposes.
Nest take for health and safety. Take of an in-use eagle nest prior
to egg-laying or an alternate eagle nest, when the removal is necessary
to ensure public health and safety.
Nest take for human-engineered structure. Take of an in-use eagle
nest prior to egg-laying or an alternate eagle nest that is built on a
human-engineered structure and creates, or is likely to create, a
functional hazard that renders the structure inoperable for its
intended use.
Nest take for species protection. Take of an in-use eagle nest
prior to egg-laying or an alternate eagle nest, when the removal is
necessary to protect a species federally protected under the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531-1544) and included on
the List of Endangered and Threatened Wildlife (at Sec. 17.11 of this
subchapter).
Other purposes. Take of an alternate eagle 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 net benefit to eagles.
(c) Eligibility for a general permit for nest take. To qualify for
a general permit, you must meet the requirements of Sec. 22.210.
General permits are available for bald eagle nest take for emergency,
health and safety, or a human-engineered structure, or, if located in
Alaska, bald eagle nest take for other purposes. General permits are
not available for take of golden eagle nests. General permits authorize
bald eagle nest removal from the nesting substrate at the location
requested and the location of any subsequent nesting attempts by the
eagle pair within one-half-mile of the location requested for the
duration of the permit. Take of an additional eagle nest(s) more than
one-half-mile away requires an additional permit(s) if the subsequent
nest(s) re-create the emergency, safety, or functional hazard of the
original nest. The general permit application will require supporting
documentation for certain types of requests, such as an arborist report
in the case of hazard-tree removal.
(d) Eligibility for a specific permit for nest take. To qualify for
a specific permit, you must meet the requirements of Sec. 22.200. You
may apply for a specific permit if you are requesting take of a golden
eagle nest or requesting take of a bald eagle nest for species
protection or other purposes. As part of your specific permit
application, you may be required to provide supporting documentation,
such as an arborist report in the case of hazard-tree removal.
(e) Permits for species protection. If you are applying for a
specific permit for nest take for species protection:
(1) You must apply as the Federal, State, or Tribal agency
responsible for implementing actions for the protection of the species
of concern.
(2) You must include documentation that:
(i) Describes relevant management efforts to protect the species of
concern.
(ii) Identifies how eagles are a limiting factor to survival of the
species using the best available scientific information and data.
Include a description of the mechanism of that threat.
(iii) Explains how take of eagle nest(s) is likely to have a
positive outcome on recovery for the species.
(f) Permit conditions for nest take. Permit conditions may include
requirements to:
[[Page 59631]]
(1) Adjust timing of your activity to minimize the effects of nest
take.
(2) Obstruct nest(s) or nest substrate.
(3) Minimize renesting that would cause the same emergency, safety,
or functional hazard.
(4) Relocate the nest or provide suitable nesting substrate within
the same territory.
(5) Remove chicks and/or eggs from an in-use nest for immediate
transport to a foster nest, rehabilitation facility, or as otherwise
directed by the Service.
(6) Monitor in-use nests that are relocated with nestlings or eggs
present or foster nests to ensure adults are tending to nestlings or
eggs.
(7) Monitor the area near the nest removal for one or more seasons
to determine the effect on eagles.
(8) Submission of an annual report using Form 3-202-16.
(g) Tenure of permits. General permits issued under the regulations
in this section are valid until the start of the next breeding season,
not to exceed 1 year. The tenure of specific permits is set forth on
the face of the permit and may not exceed 5 years.
Sec. 22.75 [Redesignated as Sec. 22.325]
0
14. Redesignate Sec. 22.75 as Sec. 22.325.
0
15. Newly redesignated Sec. 22.325 is amended by:
0
a. Revising the section heading; and
0
b. In the introductory text, removing the three sentences following the
first sentence.
The revision reads as follows:
Sec. 22.325 Permits for golden eagle nest take from resource
development.
* * * * *
Sec. 22.90 [Redesignated as Sec. 22.400]
0
16. Redesignate Sec. 22.90 as Sec. 22.400.
Maureen D. Foster,
Chief of Staff, Office of the Assistant Secretary for Fish and Wildlife
and Parks.
[FR Doc. 2022-21025 Filed 9-29-22; 8:45 am]
BILLING CODE 4333-15-P