[Federal Register: June 5, 2007 (Volume 72, Number 107)]
[Proposed Rules]
[Page 31141-31155]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jn07-27]
[[Page 31141]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Parts 13 and 22
RIN 1018-AV11
Authorizations Under the Bald and Golden Eagle Protection Act for
Take of Eagles
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: In anticipation of possible removal (delisting) of the bald
eagle from the List of Threatened and Endangered Wildlife under the
Endangered Species Act (ESA), the U.S. Fish and Wildlife Service
(``we'' or ``the Service'') is proposing new permit regulations to
authorize the take of bald and golden eagles under the Bald and Golden
Eagle Protection Act (Eagle Act), generally where the take to be
authorized is associated with otherwise lawful activities. Second, we
are proposing regulatory provisions to provide take authorization under
the Eagle Act to ESA section 10 permittees who continue to operate in
full compliance with the terms and conditions of their existing
permits. Additionally, these proposed permit regulations would
establish permit provisions for intentional take of eagle nests in rare
cases where their location poses a risk to human safety or to the
eagles themselves.
DATES: We will accept written comments on this proposed rule until
September 4, 2007.
ADDRESSES: You may submit comments and other information, identified by
RIN 1018-AV11, by any of the following methods:
Mail or hand-delivery: Division of Migratory Bird
Management, Attn: RIN 1018-AV11, U.S. Fish and Wildlife Service, 4401
N. Fairfax Drive, MBSP-4107, Arlington, Virginia 22203.
E-mail: EaglePermitRegulation@fws.gov. Include ``RIN 1018-
AV11'' in the subject line of the message. Please submit electronic
comments in plain text files, avoiding the use of special characters
and encryption.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions on the site for submitting comments.
FOR FURTHER INFORMATION CONTACT: Eliza Savage, Division of Migratory
Bird Management, U.S. Fish and Wildlife Service, 4401 North Fairfax
Drive, Mailstop 4107, Arlington, Virginia 22203-1610; or 703-358-2329.
SUPPLEMENTARY INFORMATION:
Public Comments Solicited
We are soliciting public comments on this proposed rule. You may
submit your comments by any one of the methods provided in the
ADDRESSES section. The comment due date is listed in the DATES section.
All submissions we receive must include the agency name and Regulatory
Identification Number (RIN) for this rulemaking, which is 1018-AV11. In
the event that our Internet connection is not functional, please submit
your comments by the alternate methods mentioned in the ADDRESSES
section. Before including your address, phone number, e-mail 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 Director of the Service will take into consideration the
relevant comments, suggestions, or objections that are received by the
comment due date indicated above in DATES. These comments, suggestions,
or objections, and any additional information received, may lead the
Director to adopt a final rulemaking that differs from this proposal.
Background
The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d)
(Eagle Act) prohibits the take of bald and golden eagles unless
pursuant to regulations (and in the case of bald eagles, take can only
be authorized under a permit). While the bald eagle is listed under the
ESA (16 U.S.C. 1531 et seq.), authorizations for incidental take of
bald eagles have been granted through the ESA's section 10 incidental
take permits and ESA's section 7 incidental take statements, issued
with assurances that the Service would exercise enforcement discretion
in relation to violations of the Eagle Act and Migratory Bird Treaty
Act (16 U.S.C. 703-712) (MBTA). Upon delisting, all prohibitions
contained in the ESA, such as those that prescribe the take of bald
eagles, would no longer apply. However, the potential for human
activities to violate Federal law by taking eagles remains under the
prohibitions of the Eagle Act and the MBTA. The Eagle Act defines the
``take'' of an eagle to include a broad range of actions: ``pursue,
shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest
or disturb''; the broadest of these terms is ``disturb.'' ``Disturb''
has now been defined by the Service in regulations at 50 CFR 22.3 as:
``to agitate or bother a bald or golden eagle to a degree that causes,
or is likely to cause, based on the best scientific information
available, (1) injury to an eagle, (2) a decrease in its productivity,
by substantially interfering with normal breeding, feeding, or
sheltering behavior, or (3) nest abandonment, by substantially
interfering with normal breeding, feeding, or sheltering behavior.''
(See the final rule defining ``disturb'' under the Eagle Act, published
in today's Federal Register.)
Many actions that are considered likely to incidentally take (harm
or harass) eagles under the ESA will also disturb or otherwise take
eagles under the Eagle Act. The regulatory definitions of ``harm,''
``harass,'' and ``disturb,'' differ from each other; but overlap in
many ways. The only court to have addressed the relationship between
the prohibitions of the ESA and the Eagle Act stated:
Both the ESA and the Eagle Protection Act prohibit the take of
bald eagles, and the respective definitions of ``take'' do not
suggest that the ESA provides more protection for bald eagles than
the Eagle Protection Act* * *. The plain meaning of the term
``disturb'' is at least as broad as the term ``harm,'' and both
terms are broad enough to include adverse habitat modification.
(Contoski v. Scarlett, Civ No. 05-2528 (JRT/RLE), slip op. at 5-6
(D. Minn. Aug 10, 2006).)
Currently, there is no regulatory mechanism in place under the
Eagle Act that permits take of bald or golden eagles comparable to
under the ESA. We propose to add a new section at 50 CFR 22.26 to
authorize the issuance of permits to take of bald and golden eagles on
a limited basis. The regulations would be applicable to golden eagles
as well as bald eagles. In comparison with requirements under the ESA,
the permitting process we are proposing under the Eagle Act would be
less burdensome for the public to comply with, while continuing to
provide appropriate protection for bald and golden eagles. Take of bald
or golden eagles would be authorized only where it is determined to be
compatible with the preservation of bald and golden eagles and cannot
practicably be avoided.
We propose to use expedited procedures under this new permit
process to issue Eagle Act permits for take in compliance with
previously granted ESA section 7 incidental take statements. The
expedited permitting
[[Page 31142]]
process would also be used to provide Eagle Act authorization for take
of bald eagles where the bald eagle was the only listed species covered
by an ESA Habitat Conservation Plan (HCP). We are also proposing
regulatory revisions to 50 CFR 22.11 to allow persons with a valid ESA
section 10 permit that covers multiple species in addition to the bald
or golden eagle (and is therefore still a valid permit even if the bald
eagle is delisted) to continue to use that permit as the Eagle Act
authorization for the same activity as it relates to bald or golden
eagles. This provision would also apply to the take of bald and golden
eagles that are covered as non-listed species in future HCPs.
Finally, we propose to add a new section at 50 CFR 22.27 to
authorize the removal of bald and golden eagle nests that pose a hazard
to human safety or to the welfare of eagles. We also propose to
introduce and define certain terms under the Eagle Act. Permit issuance
under Sec. 22.26 and Sec. 22.27 would be governed by the permit
provisions presently in 50 CFR parts 13 and 22, and new provisions we
are proposing to add to Sec. 22.26 and Sec. 22.27.
History
Prior to the arrival of Europeans, the bald eagle population in the
lower 48 contiguous States is estimated to have been 250,000 to 500,000
birds. The first declines in bald eagle populations began in the mid to
late 1800s. Shooting of eagles for feathers and trophies, various forms
of predator control, and loss and conversion of habitats contributed to
the general decline in numbers until the mid-1940s (U.S. Fish and
Wildlife Service 1999). Widespread concern for the future of the bald
eagle led Congress to pass the Bald Eagle Protection Act in 1940 (16
U.S.C. 668-668d). The Act prohibited, among other things, the taking,
possession, and sale of bald eagles or their parts, eggs, or nests.
When passed, the Act did not apply in the then-territory of Alaska. In
1953, after lengthy studies demonstrated that bald eagles did not
affect salmon population levels, the remaining bounties on eagles in
Alaska were eliminated. The Act was amended in 1959 to include Alaska.
The law was further amended in 1962 to protect the golden eagle, in
part because of the difficulty in distinguishing golden eagles from
immature bald eagles. It was then renamed the Bald and Golden Eagle
Protection Act.
Passage of the Eagle Act and promulgation of eagle regulations (50
CFR part 22) probably eliminated many of the major threats to eagles
throughout the United States, and may have helped to slow the decline
of eagle numbers. However, the widespread use of organochlorine
pesticides after World War II created a persistent threat to the
survival of the bald eagle in the continental United States. Beginning
in the late 1940s, dichloro-diphenyl-trichloroethane (DDT) was
extensively used for mosquito control and later as a general crop
pesticide. As DDT use increased, the chemical and its metabolites began
to accumulate in the prey base of the bald eagle and later in the
tissues of the eagles consuming contaminated prey. By the early 1960s,
the ability of bald eagle populations to replace themselves had
decreased drastically, and bald eagle numbers plummeted. A partial
survey conducted by the National Audubon Society in 1963 documented
just 487 active nests in the lower 48 contiguous States. Productivity
was considered lower than that required to sustain the population.
On the basis of this steep decline, the bald eagle population south
of 40[deg] North latitude was included on the first list of endangered
species (32 FR 4001, March 11, 1967), pursuant to the precursor law to
the current Endangered Species Act. DDT use was banned in the United
States in 1972. Increases in the eagle population were gradual due to
the persistence of DDT in the environment, however, and the bald eagle
was included on the ESA's List of Threatened and Endangered Wildlife
when the ESA was passed in 1973. In 1978, the ESA listing was amended
to classify the bald eagle as endangered in the lower 48 contiguous
States except in five northern States, where it was listed as
threatened (43 FR 6233, February 14, 1978).
With the protection afforded by the ESA and the decline in DDT
contaminant levels in the environment and in the bald eagle's food
sources, the species experienced a dramatic comeback. In 1990, there
were an estimated 3,035 occupied breeding areas in the lower 48 states.
By 1994, the bald eagle population had increased 462% over the levels
documented in 1974. The increase was sufficient to allow
reclassification to threatened in the lower 48 States (60 FR 36000,
July 12, 1995). Bald eagle population growth and productivity exceed
most of the goals established in the various ESA recovery plans. The
Service proposed to remove the bald eagle from the List of Threatened
and Endangered Wildlife on July 6, 1999 (64 FR 36454). We estimate the
current number of breeding pairs in the 48 contiguous States to be over
9,700. Bald eagles were never listed as threatened or endangered in
Alaska, where we currently estimate bald eagles to number between
50,000 and 70,000 birds, including approximately 15,000 breeding pairs.
The ESA provides broad substantive and procedural protections for
listed species but at the same time allows significant flexibility to
permit activities that affect listed species. In particular, the ESA
provides that we may authorize the incidental take of listed wildlife
in the course of otherwise lawful activities (sections 7(b)(4) and
10(a)(1)(B), respectively). Nationwide, since 2002, the Service has
issued an average of 52 incidental take statements per year that
covered anticipated take of bald eagles under the ESA's section 7.
During that same 5-year period, we issued about two (1.8) incidental
take permits per year under the ESA's section 10(a)(1)(B) for bald
eagles. The requirements, including minimization, mitigation, or other
conservation measures, of those ESA authorizations have been more than
adequate to achieve the standard of ``preservation'' for the bald and
golden eagle that is required by the Eagle Act for the issuance of take
permits. Therefore, we provided assurances with each section 7
incidental take statement and section 10 permit that we would ``not
refer the incidental take of a bald eagle for prosecution under the
Migratory Bird Threat Act of 1918, as amended (16 U.S.C. 703-712), or
the Bald and Golden Eagle Protection Act of 1940, as amended (16 U.S.C.
668-668d) if such take was in compliance with the terms and conditions
of an incidental take statement issued to the action agency or
applicant under the authority of section 7(b)(4) of the ESA or a permit
issued under the authority of section 10(a)(1)(B) of the ESA.''
If the bald eagle is delisted, the permitting of incidental take
under the ESA would no longer occur except possibly in the context of
certain multi-species HCPs that were applicable to both listed and non-
listed species. In that event, however, a mechanism would still be
needed to address take that may be permitted pursuant to the Eagle Act.
The Eagle Act provides that the Secretary of the Interior may authorize
certain otherwise prohibited activities through promulgation of
regulations. The Secretary is authorized to prescribe regulations
permitting the ``taking, possession, and transportation of [bald or
golden eagles] * * * for the scientific or exhibition purposes of
public museums, scientific societies, and zoological parks, or for the
religious purposes of Indian tribes, or * * * for the protection of
wildlife or of agricultural or other interests in any particular
locality,'' provided such
[[Page 31143]]
permits are ``compatible with the preservation of the bald eagle or the
golden eagle'' (16 U.S.C. 668a). In accordance with this authority, the
Secretary has previously promulgated Eagle Act permit regulations for
scientific and exhibition purposes (50 CFR 22.21), for Indian religious
purposes (50 CFR 22.22), to take depredating eagles (50 CFR 22.23), to
possess golden eagles for falconry (50 CFR 22.24), and for the take of
golden eagle nests that interfere with resource development or recovery
operations (50 CFR 22.25).
Until now, we have not promulgated permit regulations to authorize
eagle take ``for the protection of * * * other interests in any
particular locality.'' This statutory language accommodates a broad
spectrum of public and private interests (such as utility
infrastructure development and maintenance, road construction,
operation of airports, commercial or residential construction, resource
recovery, recreational use, etc.) that might ``take'' eagles as defined
under the Eagle Act.
Description of the Proposed Rulemaking
Take Permit Regulations Under Proposed 50 CFR 22.26
We are proposing a new permit regulation under the authority of the
Eagle Act for the limited take of bald and golden eagles ``for the
protection of * * * other interests in any particular locality'' where
such permits are consistent with the preservation of the bald and
golden eagle, and the take is associated with, and not the purpose of
an otherwise lawful activity, and such take cannot practicably be
avoided. ``Practicable'' in this context means capable of being done
after taking into consideration cost, existing technology, and
logistics in light of overall project purposes.
We anticipate that generally such take permits would authorize
activities which could cause an eagle to be disturbed by human
activities in proximity to eagle nests, important foraging sites, and
communal roosts; however, in some limited cases, where other forms of
take besides disturbance are unavoidable, we anticipate that a permit
may be issued under this section for such other form of take.
``Unavoidable'' in this context means the activity is necessary for the
public welfare, and all practicable, industry-accepted measures to
minimize the take are in effect. In the case of airports, for example,
the permit could cover take that might occur even when the airport is
meeting the obligations of its Wildlife Hazard Management Plan (e.g.,
hazing wildlife and discouraging nesting and roosting by designing
infrastructure to be as inhospitable as possible).
We do not anticipate that permits issued under these proposed
regulations will significantly affect eagle populations. Bald eagle
populations are currently growing at a rate that we expect will
continue to outpace any population effects (primarily through decreased
productivity) caused by disturbance. Furthermore, all permittees will
be required, as part of their permit conditions, to carry out
conservation measures to mitigate impacts to eagles. The statutory
requirement that the authorized activities be compatible with the
preservation of bald and golden eagles ensures the continued protection
of the species while allowing some impacts to individual eagles. For
purposes of the regulations we are proposing here, we consider take to
be compatible with the preservation of the bald and golden eagle if it
will not result in a decline, either at the national or regional level,
that could necessitate (among other factors) a designation of an avian
species by Partners in Flight (PIF) to their Continental Watch List \1\
(the rate of decline that serves as a threshold for that list is more
moderate than what would lead to ESA listing (or relisting)). The
Service already uses that threshold rate of decline to manage migratory
birds; it serves as a primary element in our determination of whether a
migratory bird species is of conservation concern. We do not intend to
rely on any PIF determination of changed status, and we would not tie
any future action on our part with any action by PIF. Rather, we
believe it would be sensible and consistent to apply a criterion we
already use for migratory bird management, as the threshold level of
decline that would not be compatible with the preservation of the bald
and golden eagle.
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\1\ Panjabi, A. O., E. H. Dunn, P. J. Blancher, W. C. Hunter, B.
Altman, J. Bart, C. J. Beardmore, H. Berlanga, G. S. Butcher, S. K.
Davis, D. W. Demarest, R. Dettmers, W. Easton, H. Gomez de Silva
Garza, E. E. I[ntilde]igo-Elias, D. N. Pashley, C. J. Ralph, T. D.
Rich, K. V. Rosenberg, C. M. Rustay, J. M. Ruth, J. S. Wendt, and T.
C. Will. 2005. The Partners in Flight handbook on species
assessment. Version 2005. Partners in Flight Technical Series No. 3.
Rocky Mountain Bird Observatory Web site: http://www.rmbo.org/pubs/downloads/Handbook2005.pdf
.
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We propose to use modeling in evaluating the level of take which we
can permit compatible with this statutory threshold, and taking into
consideration the cumulative effects of all permitted take, including
other forms of lethal take permitted under this section, against the
backdrop of other causes of mortality and nest loss. Due to the
inherent limits of monitoring to detect precise fluctuations in bald
and golden eagle numbers, coupled with the uncertainty as to whether
individual actions being permitted will in fact result in a ``take,''
we cannot precisely correlate each individual permit decision with a
specific population impact. However, we intend to use the best
available data, including data from post-delisting monitoring by
States, the Breeding Bird Survey, and fall and winter migration counts
to assess the status of eagle populations and adjust permitting
criteria on an ongoing basis as appropriate. However, consistent with
the preservation mandate of the Eagle Act, we do not anticipate that
the cumulative impacts of the activities permitted by these regulations
will cause declines in bald and golden eagle populations.
As part of the forthcoming release for public comment of a draft
environmental assessment under the National Environmental Policy Act
(42 U.S.C. 4321 et seq.) (NEPA), we intend to determine the most
meaningful population scale for measuring population impacts using
available data (including average natal dispersal distances) and to
delineate regional populations that are relatively distinct for
management purposes. Our preliminary analysis to date indicates there
may be utility in classifying bald eagle populations into nine regional
populations (plus some highly isolated sites) for purposes of assessing
impacts to bald eagles under these regulations. We intend to perform a
similar analysis for golden eagles, to determine the geographic
delineations most applicable for management purposes.
A wide variety of activities, including various types of
development, resource extraction, and recreational activities near
sensitive areas such as nesting, feeding, and roosting sites, can
disrupt or interfere with the behavioral patterns of bald eagles. The
Service has developed National Bald Eagle Management Guidelines
(Guidelines) as a tool for landowners, project proponents, and the
general public engaged in activities in the vicinity of bald eagles
(see our notice of availability of the Guidelines published separately
in today's Federal Register. The Guidelines are also available at
http://www.fws.gov/migratorybirds.baldeagle.htm). The Guidelines
address potential negative effects of human activities on bald eagles,
based on observed bald eagle behavior, and provide guidance on what
types of activities are likely to cause bald eagle disturbance at
varying distances to nests, communal roosts,
[[Page 31144]]
and foraging areas and how to avoid such disturbance.
By adhering to the Guidelines, landowners and project proponents
will be able to avoid bald eagle disturbance under the Eagle Act most
of the time. We anticipate only rarely issuing permits for take
associated with activities that adhere to the Guidelines because the
great majority of such activities will not take bald eagles. If
avoiding disturbance is not practicable, the project proponent may
apply for a take permit. (A permit is not required to conduct any
particular activity, but is necessary to avoid potential liability for
take caused by the activity.)
Disturbance may also result from human activity that occurs after
the initial activities (e.g., residential occupancy or the use of
commercial buildings, roads, piers, and boat-launching ramps). In
general, however, permits would not be issued for routine activities
such as hiking, driving, normal residential activities, maintenance of
existing facilities, where take could occur but is unlikely, and would
be unreasonably difficult to predict and/or avoid. If unusual
circumstances exist, however, where the risk of disturbance may be
higher than normal, we will consider issuing a permit to authorize the
potential impacts of such activities. New uses or uses of significantly
greater scope or intensity may raise the likelihood that eagles will be
disturbed, and as such could require authorization for take under these
regulations. When evaluating the take that may result from an activity
for which a permit is sought (e.g., residential development), we would
consider the effects of the preliminary activity (construction) as well
as the effects of the foreseeable ongoing future uses (e.g., activities
associated with human habitation).
The impacts and threshold distances that we would consider will not
be limited to the footprint of the initial activity if it is reasonably
foreseeable that the activity will lead to adverse secondary prohibited
impacts to eagles. For example, when evaluating the effects of
expanding a campground, in addition to considering the distance of the
expansion from important eagle-use areas, we would consider the effects
of increased pedestrian and motor traffic to and from the expanded
campground. In many cases, the potential for take could be greater as a
result of the activities that follow the initial project. For example,
the installation of a boat ramp 500 feet from an important eagle
foraging area nest may not disturb eagles during the construction
phase, but the ensuing high levels of boat traffic through the area
during peak feeding times is likely to cause disturbance. Trail
construction 400 feet from a nest is generally unlikely to take eagles,
but if the trail will be open to off-road vehicle use during the
nesting season, we would need to consider the impacts of the vehicular
activity as part of the impacts of the trail construction.
As part of this rulemaking, the Service is also seeking public
comment on differences between bald and golden eagle tolerance to human
activity. Most of the scientific literature and anecdotal evidence
pertaining to disturbance is in reference to bald rather than golden
eagles; however various raptor biologists have suggested that golden
eagles may be more sensitive to some types of human activity than bald
eagles. The National Bald Eagle Management Guidelines were developed
for bald eagles and some of the recommendations contained in that
document may not be appropriate for avoiding golden eagle disturbance.
We therefore strongly encourage the public to provide information and
data on golden eagle disturbance, and scientifically-based
recommendations for buffers sizes, timing restrictions, and other
measures to avoid such disturbance. If warranted, we will develop
separate criteria for evaluation of golden eagle take permits. In any
event, all take permits for golden eagles still must be based on a
determination that it is consistent with the preservation of the
species.
We acknowledge there is considerable uncertainty with respect to
how both species of eagles react to human activity. To decrease
uncertainty and ensure that the disturbance component of the proposed
eagle take permit regulation is neither unnecessarily burdensome to the
public nor incompatible with the preservation of eagles, we would
require permittees to provide basic post-activity monitoring by
determining whether the nest site, communal roost, or important
foraging area continues to be used by eagles for the 3 years following
completion of the activity for which the permit was issued. Where an
activity is covered by a management plan that establishes monitoring
protocols (e.g., an airport Wildlife Habitat Management Plan), the
permit may specify that monitoring shall be conducted according to the
pre-existing management plan. Reporting data, including supplemental
data collected by the Service from some permittees' project areas,
would be employed in a formal adaptive resource-management context to
assess whether or not the estimated probability of disturbance
adequately describes the relationship between the distance of the
activity and the occurrence of disturbance for both species of eagle.
If not, the relationship would be re-evaluated using data collected
from permittees, as well as other sources, and this regulation and the
associated National Management Guidelines will be revised
appropriately.
Permit application process and evaluation criteria. Permits would
be available to Federal, State, municipal, or Tribal government;
corporations and businesses; associations; and private individuals.
Except for persons who were previously authorized to incidentally take
eagles under ESA's section 7 and 10 (where the eagle was the only
covered listed species), we propose to use the following information to
make permit determinations. The permit application would have to
include a detailed description of the activity that will likely cause
the disturbance or other take of eagles; maps and photographs
(preferably digital) that depict the locations of the proposed activity
and the eagle nests, foraging areas, and concentration sites where
eagles are likely to be affected by the proposed activity (including
the latitude and longitude of the activity area and important eagle-use
area(s) and the distance(s) between those areas); the number of eagles
that are likely to be taken and the likely form of that take (e.g.,
disturbance or other take); whether or not the important eagle-use area
is visible from the activity area, or if screening vegetation or
topography blocks the view; the nature, extent, duration, and distance
from the eagle-use area of existing activities similar to that being
proposed; the date the activity will start and is projected to end; an
explanation of how issuance of the permit will protect other interests
in a particular locality; an explanation of why avoiding the take is
not practicable; a description of the measures proposed to minimize and
mitigate any resulting impacts on eagles; a certification that the
proposed activity is in compliance with applicable local, State, and
Federal laws and regulations; and other information we may request
specific to that particular proposal, consistent with the information
collection requirements of the Paperwork Reduction Act (44 U.S.C. 3501
et seq.).
The Service may provide technical assistance in development of
permit applications. In many cases, the Service may be able to
recommend measures to reduce the likelihood of take, obviating the need
for a permit. The technical assistance we provide from the field will
reduce the number of applications
[[Page 31145]]
to our permit offices for activities that (1) are unlikely to take
eagles, or (2) can practicably be modified to avoid the take. The
Service may elect to conduct an on-site assessment to determine whether
the proposed activity is likely to take bald eagles and whether
reasonable modifications to the project will alleviate the probability
of take. In addition, State natural resources agencies may also be able
to provide information pertaining to the number and location of eagle
nests and other important eagle-use areas within the area potentially
affected by the activity.
To determine whether to issue a permit, we would consider a number
of factors including (1) whether practicable measures can be taken to
reduce the probability of take, and (2) whether the resulting level of
take is compatible with the preservation of bald or golden eagles.
Factors we would consider include the magnitude of the impacts of the
activity; individual eagles' known prior exposure to, and history with,
the activity; whether alternative suitable eagle nesting, roosting,
and/or feeding habitat is available to the eagles affected by the
activity; visibility of the activity from the eagle's nest, roost, or
foraging perches; and practices proposed by the applicant to reduce
potential disturbance of the activity on eagles. In cases where our
evaluation of these additional factors and the best scientific
information available leads to the conclusion that disturbance will
likely occur, we would assess whether that disturbance is likely to
lead to the loss of one of more eagles or the permanent loss of a
nesting territory, communal roost site, or important foraging area. We
would also consider the potential cumulative effects of other similar
authorizations.
For applications for activities that are likely to result in eagle
mortalities, we would assess whether the take is unavoidable even where
the project proponent is using best management practices (BMPs) to
avoid the take. Permits would authorize anticipated lethal take only
where BMPs are being fully implemented.
Although we cannot precisely predict the population impact of each
take authorization when evaluating individual permit applications, we
will periodically assess overall population trends along with annual
report data from permitees and other information to assess how likely
future activities are to result in loss of one of more eagles, a
decrease in productivity of bald or golden eagles, and/or the permanent
loss of a nest site, communal roost site, or important foraging area;
and how such outcomes will likely affect population trends, taking into
consideration the cumulative effects of other activities that take
eagles and eagle mortalities due to other factors. We do not expect
population declines as the result of the authorizations granted through
these proposed regulations. However, it is also possible external
factors could arise that negatively affect eagle populations. Whatever
the cause, if data suggest population declines are approaching a level
where additional take would be incompatible with the preservation of
the eagle (as interpreted above for purposed of this rulemaking), we
would refrain from issuing permits until such time that the take would
be compatible with the preservation of the bald or golden eagle.
However, based on preliminary analysis, we believe the demand for
permits under these regulations, and the effects of issuing those
permits, including mitigation measures, would not be significant enough
to cause a decline in eagle populations from current levels.
Certain general conditions would be included in eagle take permits.
The permittee must comply with any avoidance, mitigation, and/or
conservation measures required by the permit. If the permit expires or
is suspended or revoked before the required measures are completed, the
permittee remains obligated to carry out those measures necessary to
mitigate for take that has occurred up to that point. Permittees must
allow Service personnel access to the areas where take is anticipated,
within reasonable hours and with reasonable notice from the Service,
for purposes of monitoring eagles at the site(s). Although we do not
anticipate the necessity for ongoing monitoring by the Service at the
majority of the areas where take would be permitted, we would use the
data collected from limited site visits to reevaluate, as appropriate,
the recommendations we provide in the Guidelines as well as through
case-by-case technical assistance to ensure that eagles are adequately
protected without unnecessarily hindering human activity. If a permit
is revoked or expires, the permittee must submit a report of activities
conducted under the permit to the Director within 60 days of such
revocation or expiration. The permit provides take authorization only
for the activities set forth in the permit conditions. If the permittee
subsequently contemplates different or additional activities, he or she
should contact the Service to determine if a permit amendment is
required to retain the level of take authority desired.
We intend to develop implementation guidance to address procedural
details of the permitting process, similar in role and format to the
Service's Section 7 and HCP Handbooks. The guidance will cover time
frames for permit issuance, identification of project impacts,
appropriate mitigation measures, monitoring, and other specifics of the
permit process, in order to ensure consistency in implementation
throughout the Service. We encourage the public to provide input on
these types of issues as part of this rulemaking. We will use this
public input to craft draft implementation guidance, which will be
subject to a public notice and comment process before being finalized.
Eagle Act Authorizations for Entities Operating Under ESA
Authorizations and Exemptions
Take prohibited under the ESA is, in many instances, also
prohibited under the Eagle Act. Both statutes prohibit killing,
wounding, pursuing, shooting, capturing, and collecting the protected
species. The ESA additionally prohibits anyone from harming or
harassing listed species, while the Eagle Act makes it illegal to
molest or disturb bald or golden eagles. The regulatory definitions of
``harm,'' ``harass,'' and ``disturb,'' differ somewhat from each other;
however they do overlap in several ways, with the result that a
majority of actions considered likely to incidentally take (harm or
harass) eagles under the ESA will also incidentally take (disturb)
eagles under the Eagle Act.
Under the ESA, we authorized take of bald eagles using the permit
provisions of section 10 for non-Federal entities or the consultation
provisions of section 7 for Federal agencies. The regulations here
proposed would extend Eagle Act authorizations to holders of existing
ESA authorizations as seamlessly as possible under the laws. The
mechanism through which these regulations will provide this
authorization is two-fold. First, it provides for expedited processing
of Eagle Act permits to entities previously authorized to take eagles
under section 7 incidental take statements and section 10 incidental
take permits where the bald eagle was the only listed species covered
in the Habitat Conservation Plan. Second, we are proposing regulatory
provisions to provide take authorization under the Eagle Act to ESA
section 10 permittees where the bald eagle was one of several listed
species, including future permittees (where the bald or golden eagle is
included in the HCP as a covered nonlisted species) as long as the
permittees remain in full compliance
[[Page 31146]]
with the terms and conditions of their ESA permits.
Section 10(a)(1)(B) of the ESA authorizes incidental take permits
for activities included in a Habitat Conservation Plan (HCP). A handful
of permits authorize incidental take of golden eagles for ESA purposes
(should the golden eagle be listed in the future), where they are
included in HCPs as covered non-listed species. All these permits were
issued with a statement of enforcement discretion from the Service that
provided assurances that the Service would not refer any take of bald
or golden eagles for prosecution under the Eagle Act, as long as the
take was in full compliance with the terms and conditions of the permit
and HCP, including that the permittee carried out all conservation
measures required by the permit. Thus, none of these incidental take
permits or incidental take statements provided explicit authorization
for take under the Eagle Act. While the bald eagle was protected under
the ESA, these assurances also conveyed the Federal Government's
commitment to make no additional conservation demands of permittees who
were fully implementing the conservation measures within their HCPs.
If the bald eagle is delisted, all of these ESA permits would
continue to provide viable authorizations under the ESA, except where
the bald eagle was the only ESA-listed species covered by the permit
(addressed below). For permits where the bald eagle was one of multiple
ESA-listed species, the permit remains in effect and would continue to
provide the same authorizations for bald eagles based on the original
conditions; the only difference being that the bald eagle would be
converted from a ``covered listed species'' to a ``covered non-listed
species'' under the ESA permit after delisting.
The Eagle Act provides that bald eagles may not be taken unless a
permit is first procured from the Secretary of the Interior. Because a
permit from the Secretary of the Interior was already obtained under
ESA section 10(a)(1)(B), the provisions we are proposing would ensure a
second permit (under the Eagle Act) is not required. We propose to
amend Eagle Act regulations at 50 CFR 22.11 to extend Eagle Act
authorizations comparable to the authorizations granted under the ESA
to entities who continue to operate in full compliance with the terms
and conditions of permits issued under ESA section 10. Failure to abide
by the section 10 permit requirements would, however, void this Eagle
Act regulatory permit authorization.
The new provision would also apply to take associated with any
future ESA section 10 Habitat Conservation Plans that specifically
include eagles as covered, non-listed species. An applicant for an ESA
section 10(a)(1)(B) permit for incidental take of ESA-listed species
may obtain ESA ``no surprises'' assurances for take of bald or golden
eagles by including them as a covered, non-listed species in the ESA
section 10(a)(1)(B) permit. To include a species under the ESA permit,
the issuance criteria for an ESA section 10(a)(1)(B) permit must be
satisfied. The Service recognizes that the measures required to cover
the bald or golden eagle under an ESA incidental take permit (which is
crafted to safeguard federally listed species, including those that may
be listed in the future) are sufficient to protect the species relative
to the Eagle Act standard of preservation of the species if it is not
listed under the ESA. Thus, take authorized under the ESA and its
conservation standard is, we believe, inherently ``compatible with the
preservation of the bald and golden eagle'' that is required by the
Eagle Act. Therefore, the new provisions at Sec. 22.11 would extend
Eagle Act permit coverage for the take of eagles included as a non-
listed species under future ESA 10(a)(1)(B) permits, as long as the
permittee fully complies with the terms and conditions of the permit.
For existing ESA section 10(a)(1)(B) incidental take permits where
the bald eagle was the only ESA-listed species, the ESA permit will be
null and void if the bald eagle is delisted. However, the requirements,
including mitigation or other conservation measures, of existing ESA
section 10 authorizations would continue to be adequate to achieve the
preservation of the species that is required by the Eagle Act.
Therefore, as long as the recipients of such permits continue to fully
comply with the terms of those permits, the Service would continue to
honor its statement that we will not refer take authorized under the
permit for prosecution under the MBTA or Eagle Act until regulations
are in place to grant, and the permittee has had a reasonable
opportunity to apply for, comparable take authorizations under the
Eagle Act. Because the Eagle Act requires that an actual permit be
procured before a bald eagle may be taken, the proposed new provisions
at Sec. 22.11 would not apply to ESA incidental take permits where the
bald eagle was the only ESA-listed covered species, since the ESA
permit will no longer be effective if the bald eagle is delisted. We
intend to use an expedited process to issue Eagle Act permits under
proposed Sec. 22.26 to entities that held ESA incidental take permits
for bald eagles where the bald eagle was the only covered listed
species, to cover take of eagles that has not yet occurred. The sole
evaluation criterion we believe is necessary for these expedited
permits would be whether the entity is in full compliance with the
terms and conditions of a previously issued ESA section 7 incidental
take statement or ESA section 10 incidental take permit with respect to
the take of eagles.
Applications for these permits would be given priority in
processing by the Service, and as long as the permittee is in full
compliance with the terms and conditions of his ESA permit, the Service
would expeditiously issue an Eagle Act permit with identical terms and
conditions. We would continue to honor these ESA authorizations as
effectively valid authorizations under the MBTA and Eagle Act during an
interim period that will afford these existing permittees a reasonable
opportunity to see and obtain an Eagle Act permit, as long as the
permittee remains in full compliance with the terms and conditions of
the prior ESA authorization.
We propose to use the same expedited permit issuance process to
provide Eagle Act authorization for take that was previously covered
under the ESA's section 7. Section 7 requires Federal agencies, in
consultation with the Service, to ensure that the activities they carry
out, fund, or authorize do not jeopardize the continued existence of
listed species, or result in the destruction or adverse modification of
critical habitat. When a Federal agency is not able to avoid adverse
effects to listed species or critical habitat, the Service must issue a
biological opinion as to whether the effects constitute jeopardy to the
species or adverse modification of critical habitat. If the Service
concludes that the agency action will not cause jeopardy or adverse
modification, or the agency adopts reasonable and prudent alternatives
to avoid jeopardy or adverse modification, then the Service provides an
incidental take statement with the biological opinion. The incidental
take statement specifies the anticipated level of take and exempts that
take from the prohibitions of section 9 of the ESA. Section 7
incidental take statements that cover take of bald eagles, while the
species remains listed under the ESA, include a statement of
enforcement discretion similar to the language found in section 10
permits, stating that the Service would not refer for prosecution under
the Eagle Act any take of bald eagles that resulted from activities
[[Page 31147]]
conducted in accordance with the terms and conditions of the incidental
take statement. We propose to issue expedited take permits to grant
formal Eagle Act authorization for take that has not yet occurred but
was previously covered under ESA section 7 incidental take statements
issued under the authority of section 7(b)(4) of the ESA, as long as
the recipients of those authorizations continue to fully comply with
the terms and conditions of the incidental take statement. We would
continue to exercise enforcement discretion during the period before
these regulations are finalized.
Some take of bald eagles has been authorized under the ESA's
section 10(a)(1)(A) permits for Scientific Purposes and permits for
Enhancement of Propagation or Survival (i.e., Recovery permits).
Permits for Scientific Purposes authorize take of listed species
resulting from scientific research and monitoring activities. Permits
for Enhancement of Propagation and Survival authorize take of listed
species resulting from establishment and operation of captive or
otherwise controlled propagation programs as well as activities
included in a Safe Harbor Agreement. Most such section 10(a)(1)(A)
permits also contained a specific reference that they were authorizing
take under the Eagle Act. However, a few such permits referenced
authority only under the ESA, and would no longer be in effect if the
bald eagle is delisted. For those 10(a)(1)(A) permits that did not
specifically reference authority to take under the Eagle Act, and where
the take has not yet occurred, the permittee will need to obtain an
Eagle Act authorization by applying for a permit under 50 CFR 22.21
(Eagle Act Scientific and Exhibition Permits). In the meantime, we
intend to use enforcement discretion as long as the permittee continues
to operate within the terms and conditions of the ESA permit.
Some activities determined to cause a take under the ESA may be
determined not to cause a take under the Eagle Act. If an activity
determined to cause take under the ESA is also determined to cause take
under Eagle Act, some of the requirements for take authorization under
the ESA may be found by the Service as not necessary for take
authorization under the Eagle Act. Therefore, persons previously
granted take authority under the ESA for the take of bald and golden
eagles who could be granted comparable take authority under the Eagle
Act through these proposed regulations may request a reevaluation from
the Service to determine whether they could benefit from reevaluation
of permit conditions.
Eagle Nest Take Under Proposed 50 CFR 22.27
Some eagles nest on or near electrical transmission towers,
communication towers, airport runways, or other locations where they
create hazards to themselves or humans. Regulations under this section,
Sec. 22.27, would authorize removal and/or relocation of eagle nests
in what we expect to be the rare cases where genuine safety concerns
necessitate the take (e.g., where a nest tree appears likely to topple
onto a residence, at airports to avoid collisions between eagles and
aircraft, or for a nest located on an electrical transmission tower
that interferes with necessary maintenance of the utility and
jeopardizes the eagles' safety). Where practicable, nests should be
relocated to a suitable location within the same territory from which
they were removed to provide a viable nesting site for breeding
purposes of eagles within that territory unless such relocation would
create a similar threat to safety. Permits may also be issued to remove
nests when it is determined by the Service that the nests cannot be
relocated.
These permits would be issued only in cases of a determination that
the requested action is necessary to address actual safety concerns.
Additionally, some Sec. 22.26 permits that authorize disturbance could
also result in the permanent loss of a nest site, even without actually
``taking'' the nest. Those take permits that are most likely to result
in the permanent loss of a nest site would therefore also need to be
considered when assessing the impact of permits to move or remove nests
in order for the Service to determine that the permits issued remain
consistent with the statutory requirement for preservation of the
species. We would not issue take permits under Sec. 22.26 and Sec.
22.27 of this part if and when we were to determine that this statutory
standard was not being met. As part of adaptive management, we will
also take into account eagle occupation of new territories. If eagles
continue to occupy new nest sites, the number of eagle nests that we
could permit to be permanently lost may increase. We will use the best
available scientific data regarding bald and golden eagle use of new
nest sites, as well as abandoned and lost nest sites, to adjust the
threshold accordingly.
New and Modified Definitions Under 50 CFR 22.3
We propose to amend the regulatory definition of ``take,'' as
applied to bald eagle nests, to ensure consistency with the statutory
prohibition of unpermitted eagle nest destruction. For this reason, we
propose to add the term ``destroy'' to the regulatory definition of
``take.'' We propose to define ``eagle nest'' as a ``readily
identifiable structure built, maintained, or used by bald or golden
eagles for breeding purposes.'' This definition is based on, and would
replace, the existing ``golden eagle nest'' definition, in order to
apply with respect to both species. We therefore propose to remove the
existing definition of ``golden eagle nest'' from the list of
definitions. We also propose to introduce a new term in the permit
regulations under 50 CFR 22.26: ``important eagle-use area.'' This term
refers to nests, biologically important foraging areas, and communal
roosts, where eagles are potentially likely to be taken as the result
of interference with breeding, feeding, or sheltering behaviors.
We propose the following definition for ``important eagle-use
area'': ``an eagle nest, foraging area, or communal roost site that
eagles rely on for sheltering and feeding, and the landscape features
surrounding such nest, foraging area, or roost site that are essential
for the continued viability of the site for breeding, feeding, or
sheltering eagles.'' This term refers to the particular areas, within a
broader area where human activity occurs, where eagles are more likely
to be taken (i.e., disturbed) by the activity because of the higher
probability of interference with breeding, feeding, or sheltering
behaviors at those areas.
Revisions to General Permit Conditions at 50 CFR Part 13
As part of establishing the new permit authorizations under 50 CFR
22.26 and 22.27, we propose to amend 50 CFR 13.12 to add the proposed
permit types to be issued under 50 CFR 22.26 and 22.27. We also propose
to amend 50 CFR 13.11(d), the nonstandard fee schedule, to establish
application processing fees (user fees) for the permits. The general
statutory authority to charge fees for processing applications for
permits and certificates is found in 31 U.S.C. 9701, which states that
services provided by Federal agencies are to be ``self-sustaining to
the extent possible.'' Federal user fee policy, as stated in Office of
Management and Budget (OMB) Circular No. A-25, requires Federal
agencies to recoup the costs of ``special services'' that provide
benefits to identifiable recipients. Permits are special services,
authorizing identifiable recipients to engage in activities not
[[Page 31148]]
otherwise authorized for the general public.
For the Sec. 22.26 take permit, we propose a $500 permit
application fee and a $150 permit amendment fee except that no
application fee would be charged persons who have previously received
an ESA authorization for the same take. For the Sec. 22.27 nest take
permit, we propose a $300 permit application fee and a $150 permit
amendment fee. While higher than many other Service permit application
processing fees, these proposed fees are comparable to those assessed
for other migratory bird permits and reflect the relative level of
review necessary to process and evaluate an application for a permit to
take eagles or to remove eagle nests under the authorities of the Eagle
Act. The statutory authority to charge fees for permits and
certificates is found in 31 U.S.C. 483(a), which provides that a
Federal agency may charge fees for services including permits and
certificates to make these services ``self-sustaining to the extent
possible.''
However, the proposed permit application process would be
significantly less burdensome for the applicant than the current permit
process under the ESA, since an HCP is not required. Preparing an HCP
can be time-consuming and is usually delegated to a professional
consultant. Plans often cover large geographic areas--some larger than
a million acres--and set forth terms and mitigation measures designed
to protect species for up to 100 years. In contrast, the information
required to apply for an Eagle Act permit does not require the habitat
analysis and is less extensive and easier to compile (see (b)(1)(i) of
the proposed rule).
We estimate it would cost the Service approximately $2,400 to
process most Sec. 22.26 take applications, and $1,200 to process Sec.
22.27 permits for emergency nest take. Service biologists at GS-11 to
13 grade levels on the Office of Personnel Management General Pay
Schedule, with support of GS-9 staff, would be responsible for pre-
application technical assistance; reviewing and determining the
adequacy of the information provided by an applicant; conducting any
internal research necessary to verify information in the application or
evaluate the biological impact of the proposed activity; assessing the
biological impact of the proposed activity on the bald or golden eagle;
evaluating whether the proposed activity meets the issuance criteria;
preparing or reviewing NEPA documentation; and preparing either a
permit or a denial letter for the applicant. To evaluate the impact of
the proposed activity, Service biologists may also need to visit the
location to examine site-specific conditions. Altogether, we estimate
that it would take Service employees approximately 80 hours to process
a Sec. 22.26 permit application and approximately 40 hours to process
a Sec. 22.27 application for emergency take of an eagle nest.
Therefore, an application fee of $500 would offset only about 20% of
the cost to the Government of responding to a request for a Sec. 22.26
take permit. The $300 application fee for the nest take permit would
recoup about 25% of the cost of processing that permit application.
Endangered Species Act Consideration
Section 7(a)(2) of the Endangered Species Act (ESA) of 1973, as
amended (16 U.S.C. 1531 et seq.), requires all Federal agencies to
``insure 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.'' This proposed rule is currently
being reviewed pursuant to section 7 of the ESA. Section 7
consultation, if needed, will be concluded before this rule is
finalized.
Required Determinations
Energy Supply, Distribution or Use (E.O. 13211). On May 18, 2001,
the President issued Executive Order 13211 addressing regulations that
affect energy supply, distribution, and use. E.O. 13211 requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. This rule is not expected to significantly affect
energy supplies, distribution, and use. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Regulatory Planning and Review (E.O. 12866). In accordance with the
criteria in Executive Order 12866, the Office of Management and Budget
(OMB) has designated this rule as a significant regulatory action
because it raises novel legal or policy issues.
a. This proposed rule would not have an annual economic effect of
$100 million or adversely affect an economic sector, productivity,
jobs, the environment, or other units of the government. A brief
assessment to clarify the costs and benefits associated with this
proposed rule follows.
The Service is currently assembling data to estimate the number and
impact of permits that would likely be issued under this proposed rule.
We are requesting public comment on the economic effects of the rule to
help us with this analysis. Specifically, we are requesting information
on the following:
(1) How much will it cost to assemble the necessary information to
apply for a take permit?
(2) How much will it cost to comply with (including monitoring and
reporting) a take permit?
(3) Will you be more likely to apply for an eagle take permit under
the proposed regulations compared to under the ESA?
(4) If you plan to apply for a permit, what type of activities do
you plan to conduct that might require an eagle take permit, and where
would the take likely occur?
(5) If you have a previously issued ESA section 7 authorization or
section 10 permit and plan to apply for an expedited permit, how much
will it cost to assemble the necessary information to apply for the
permit?
Proposed Change. This rule would provide for the authorization of
activities with impacts to bald eagles and golden eagles under the Bald
and Golden Eagle Protection Act (Eagle Act). As such, the public would
have the opportunity to apply for permits to authorize the take of bald
and golden eagles under the Eagle Act. Any authorizations for take in
Alaska would be new. Most authorizations for take of golden eagle
anywhere in the United States would be new.
Baseline. Establishing the status quo is complicated because more
than one rule pertaining to bald eagles is being promulgated within the
next year. Most notably, it is anticipated that bald eagles may be
delisted before this permitting rule is finalized. If the bald eagle is
removed from the List of Threatened and Endangered Wildlife under the
Endangered Species Act (ESA), management of the bald eagle would fall
primarily under the Eagle Act. Currently, unlike under the ESA, there
are no regulations under the Eagle Act that authorize associated take
of eagles. Thus, there would be an unknown length of time during which
no new eagle take permits would be authorized between any eagle
delisting under ESA, a decision on which must be made by June 28, 2007,
as the result of litigation, and the finalization of this permitting
rule under the Eagle Act. Furthermore, only a portion of existing bald
eagle permits and consultations would continue to be valid after the
delisting of the bald eagle. The costs and benefits would result from
(1) the authorization of take of bald and golden eagles throughout the
United States under proposed Sec. 22.26, (2) the number of permits for
emergency take of eagle
[[Page 31149]]
nests throughout the United States under proposed Sec. 22.27, and (3)
the reauthorization of activities for which take was previously allowed
under the ESA but would not be valid after the delisting of the bald
eagle. This analysis does not assess the impacts of delisting the bald
eagle. Under the ESA, the final determination to delist the bald eagle
will be based solely on the best available scientific and commercial
data.
Costs Incurred. In general, the costs incurred due to the proposed
rule would relate to the costs of assembling the necessary information
for the permit application, permit fees, and the costs of monitoring
and reporting requirements associated with the permit. As explained
below, it is difficult to predict the number of applications the
Service should anticipate under these proposed regulations. However,
due to various factors (explained further below), we expect that demand
for eagle take permits will increase, from about 54 authorizations per
year under the ESA to approximately 300 permits per year under the
Eagle Act. Therefore, if we use the current number of authorizations
issued under the ESA as a baseline, approximately 246 permit
applications would be new and some of these entities would bear the
higher permit application fee costs under the Eagle Act as compared to
the current fee for an ESA incidental take permit (to capture a more
equitable share of the costs to the Service that would otherwise be
borne by taxpayers), although many applicants will be State, local,
tribal, or Federal agencies, which are exempt from application
processing fees for Service permits. Costs for other aspects of the
permit application process will generally be lower than costs
associated with the ESA section 10 permit application process (e.g.,
less information needs to be compiled and provided to the Service as
part of this proposed permit application versus the requirement to
create a Habitat Conservation Plan (HCP) under the ESA).
Persons conducting activities under the terms and conditions of
previously issued ESA section 7 and section 10 (where the bald eagle
was the only listed species) authorizations would need new, expedited
permits under the Eagle Act, but would not be charged a permit
application fee, and so would incur minimal additional costs.
We are proposing a $500 permit application processing fee for the
Sec. 22.26 take permit and a $300 permit application processing fee
for the emergency nest-take permit. Both permit types would require a
$150 fee for permit amendments. We anticipate receiving about 300 Sec.
22.26 take permit applications nationwide annually, and about 5 Sec.
22.27 emergency nest take permits. (We anticipate that we will issue
permits in nearly all these cases, because applicants will already have
coordinated with the Service before applying for a permit, and many
project proponents will have either adjusted their projects so as not
to need a permit or concluded that a permit will not be issued for the
take associated with the proposed project. The remaining potential
applicants are those who are likely to need and qualify for a permit.)
Approximately 10 permits may need amendment annually. We expect about
two thirds of the applicants to be Federal, State, local, or tribal
governments, none of which are required to pay a permit application or
amendment fee. Therefore, we estimate that annual application fees and
amendments would total approximately $51,050 (100 permits x $500 fee +
2 permits x $300 fee + 3 amendments x $150 fee). There would be no fee
for processing annual reports. These permit fees would be new costs
related to this proposed rule. There may be additional costs associated
with the permit process, which may include mitigation costs, and if the
applicant engages a consultant or attorney, consultant and legal fees.
However, the permit application process would be significantly less
burdensome than the current permit process under the ESA, since an HCP
is not required. Preparing an HCP can be time consuming and is usually
delegated to a professional consultant. Plans often cover large
geographic areas--some larger than a million acres--and set forth terms
and mitigation measures designed to protect species for up to 100
years. In contrast, the information required to apply for an Eagle Act
permit does not require the habitat analysis and is less extensive and
easier to compile (see (b)(1)(i) of the proposed rule). Information
such as latitude and longitude are publicly available (e.g., Google
Earth). The majority of people could submit this information to the
Service without the need to hire a consultant, especially with the help
of local and state government staff who are usually willing to provide
assistance with location and distance information between project and
eagle nest/use location. The Service will direct applicants to
available, free or inexpensive tools and services for obtaining the
necessary information. Larger project proponents may prefer to hire
consultants. Consultant fees could range from $300 to many thousands of
dollars, depending on the scale of the project, but presumably still
would be cost-effective, as compared to avoiding the take, since the
choice is the applicant's to make. In many cases, for larger projects,
consultants would need to be engaged to address a multitude of other
factors in addition to impacts to eagles, so additional costs related
to Eagle Act authorizations would be minimal. We seek input from the
public regarding anticipated costs, and will adjust this analysis based
on that input.
We anticipate that there will be many instances where project
proponents approach the Service, and based on preliminary coordination
with us, adjust project plans to reduce the likelihood of take to the
point where no permit is needed, and none is therefore issued. There
will be some costs associated with this process. Although these costs
are not the result of this permit regulation, but stem from the
statutory prohibitions against taking eagles, we nevertheless,
encourage the public to provide input to help us assess what these
costs may be.
Costs would also be incurred by current projects that are in
process and are delayed and future projects that are not initiated due
to the lack of new eagle permits after delisting. These costs would be
attributed to the determination to delist the bald eagle. Therefore,
this analysis does not quantify these costs.
In addition to costs to the public, the Service would incur
administrative costs due to this proposed rulemaking. We do not have a
firm basis on which to confidently foretell how much demand there will
be for permits under these proposed regulations. We cautiously estimate
the number of eagle take permits would increase under the rule from an
average of 54 authorizations currently issued under the ESA to 300
Eagle Act permits, annually. We expect an increase because: (1) Many
smaller projects will no longer be able to get under the umbrella of a
Federal project when seeking authorization to take bald eagles; (2)
after delisting, it will be more acceptable and less burdensome to get
a permit to take eagles; (3) eagle populations are increasing; and (4)
permits will be available for golden eagle take. The cost of issuing
permits will decrease, but many authorizations similar to those we
previously granted under section 7 of the ESA (where the consultation
covered numerous species in addition to bald eagles) would now require
the issuance of a permit in addition to a biological opinion. On
average, we estimate it will cost the
[[Page 31150]]
Service approximately $2,400 to process the average permit application
under Sec. 22.26 and $1,200 to process the average permit application
under Sec. 22.27. Assuming approximately 300 Sec. 22.26 permit
applications and 5 Sec. 22.27 emergency nest take permits annually,
the annual new costs associated with issuance of permits to the Service
would total approximately $721,000 (300 new Sec. 22.26 permits x
$2,400) + (5 Sec. 22.27 nest take permits x $1,200).
The Service will also incur the cost of providing technical
assistance, even where no permit is issued. The workload associated
with each such consultation would be lower on average than for cases
where a permit is required, but we believe it would not be
insubstantial. We estimate the average technical consultation will
require 20 hours of staff time, and we anticipate the number of such
consultations (not resulting in permits) to be about 600 per year,
resulting in $360,000 in increased costs to the Service from technical
consultations. In our preliminary analysis, we estimate that new
administrative costs for the Service to implement this rule will be
about $1.1 million per year. (This estimate includes only the costs to
regional and field offices for actual implementation of the permit
program, and does not include costs associated with the development and
maintenance of the program (e.g., rulemaking, responding to Freedom of
Information Act requests, budget formulation, etc), which will be borne
by the Service's Migratory Bird and Endangered Species program
offices).
Benefits Accrued. Under the proposed rule, benefits to the public
would accrue from issuance of permits to take bald and golden eagles
throughout the United States. In general, benefits would include
increased value in land that can now be developed or harvested for
timber, as well as the elimination of the risk and future costs
associated with the potential unpermitted take of eagles that could
occur from the development activities. Benefits would depend on the
level of potential future growth associated with the authorized permit
activity.
Only minimal take of golden eagles (as covered non-listed species
in HCPs) has been authorized under the ESA prior to proposing this
rule. As a result, most take of golden eagles throughout the United
States that would be authorized by the permits issued under these
proposed regulations could result in new development and activities
that could not have proceeded legally without this proposed rule. We
expect economic benefits may accrue as a result of the implementation
of this rule for oil and gas development operations, farming and
ranching operations, mining companies, utilities, the transportation
sector, and private land owners.
Overall, if this proposal is adopted, we anticipate issuing
approximately 300 take permits per year, about 246 more authorizations
per year than we have issued while the bald eagle has been listed as a
threatened species under the ESA; and approximately 5 emergency nest-
take permits. We anticipate that the amount of take that will be
requested and authorized under this permit regulation will not
significantly affect bald or golden eagle populations. We are
conducting an environmental assessment (EA) of the effects of this
rulemaking and will make a draft of the EA available to the public for
review and comment before this rulemaking is finalized.
b. This rule would not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. This rule
deals solely with governance of bald and golden eagle take in the
United States. No other Federal agency has any role in regulating bald
and golden eagle take, although some other Federal agencies regulate
activities impacting wildlife (including eagles) and these impacts may
constitute take.
c. This rule would not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. No entitlements, grants, user fees, or loan programs
are associated with the regulation of bald and golden eagle take.
d. OMB has determined that this rule may raise novel legal or
policy issues; therefore this rule has been reviewed by OMB.
Regulatory Flexibility Act. Under the Regulatory Flexibility Act
(as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever a Federal agency publishes a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions) (5
U.S.C. 601 et seq.). However, no regulatory flexibility analysis is
required if the head of an agency certifies that the rule would not
have a significant economic impact on a substantial number of small
entities. Thus, for a regulatory flexibility analysis to be required,
impacts must exceed a threshold for ``significant impact'' and a
threshold for a ``substantial number of small entities.'' See 5 U.S.C.
605(b). SBREFA amended the Regulatory Flexibility Act to require
Federal agencies to provide a statement of the factual basis for
certifying that a rule would not have a significant economic impact on
a substantial number of small entities.
The proposed rule may benefit a variety of small businesses
including real estate developers and brokers (NAIC 531); construction
companies (NAIC 23); forestry and logging (NAIC 113), farming (NAIC
111), and ranching operations (NAIC 112); tourism companies (NAIC 713);
utility companies (NAIC 221); and others. Across the United States,
there are 255,871 small real estate companies; 617,737 small
construction companies; 9,596 small forestry and logging companies;
46,730 small tourism companies; and 10,173 small utility companies. We
anticipate receiving about 300 Sec. 22.26 take permit applications
nationwide annually, and about 5 Sec. 22.27 emergency nest take
permits. As noted under the Regulatory Planning and Review section
above, we anticipate issuing approximately 300 Sec. 22.26 take
authorizations per year are expected to be granted across the United
States if this proposed rule is adopted, and approximately 5 emergency
nest-take permits. Based on past permit authorizations under the ESA,
we anticipate approximately one-third of new permit applicants would be
small businesses. If 100 applicants are small businesses within 4-6
different industries across the United States, the demand would not
represent a substantial number of small entities in individual
industries. The economic impact to individual small businesses is
dependent upon the type of activity in which each business engages. As
noted in the E.O. 12866 section of the preamble, permit applicants will
incur some costs assembling the necessary information for the permit
application, permit fees, and the costs of monitoring and reporting
associated with the permit. For example, an applicant will have to pay
$500 for a take permit, $300 for an emergency permit, and $150 for
permit amendments. In addition, particularly for larger projects, there
may be consultant and/or attorney's fees ranging from a few hundred to
thousands of dollars. However, the permit application process would be
significantly less burdensome than the current ESA. Moreover, if the
permit applicant is successful, the economic benefits to the small
entity should outweigh the economic costs of obtaining the permit. For
some
[[Page 31151]]
individual businesses, the benefit may be significant.
The Department of the Interior certifies that this rule would not
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The Service invites comment from members of the public who believe
there would be a significant impact on small businesses.
Small Business Regulatory Enforcement Fairness Act (SBREFA). This
rule is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. This rule:
a. Would not have an annual effect on the economy of $100 million
or more. The principal economic effect of the rule would be to allow
the general public to obtain take permits that allow activities on
their property where avoiding impacts to eagles is not practicable. We
are anticipating that, due to increasing bald eagle populations, there
would be an increase in the number of applications for permits under
this rule compared to the number of people who seek authorization under
the ESA, even though not all activities that require ESA authorization
would require Eagle Act authorization. All small entities that
benefited from the issuance of permits under the ESA would continue to
benefit from permits issued under this rule.
b. Would not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions. Eagle-take permits would not
significantly affect costs or prices in any sector of the economy. This
rule would provide a remedy that would allow various members of the
general public to pursue otherwise lawful uses of their property where
the activity will impact eagles. For example, a person wishing to build
on their property in the vicinity of a bald eagle nest may apply under
this proposed rule for a permit to disturb eagles, whereas the option
would not be possible after delisting without the promulgation of these
regulations.
c. Would not have a significant adverse effect on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises. This
proposed regulation would establish a mechanism to permit effects from
activities within the United States that would otherwise be prohibited
by law. Therefore, the effect on competition between U.S. and foreign-
based enterprises would benefit U.S. enterprises. There is no
anticipated negative economic effect to small businesses resulting from
this proposed rule.
Unfunded Mandates Reform Act. A statement containing the
information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
et seq.) is not required.
a. This rule is not a significant regulatory action under the
Unfunded Mandates Reform Act. A Small Government Agency Plan is not
required. The proposed permit regulations that would be established
through this rulemaking would not require actions on the part of small
governments.
b. This rule is not a significant regulatory action under the
Unfunded Mandates Reform Act. This rule would not impose an unfunded
mandate on State, local, or tribal governments or the private sector of
more than $100 million per year. Revisions to State regulations would
not be significant; all States in which the bald eagle occurs already
have their own laws regarding bald eagles, including permitting
mechanisms.
Takings (E.O. 12630). In accordance with Executive Order 12630, the
rule does not have significant takings implications. This rule could
affect private property by providing owners the opportunity to apply
for a permit to authorize take that would otherwise violate the Eagle
Act. A takings implication assessment is not required.
Federalism (E.O. 13132). In accordance with Executive Order 13132,
the rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment. This rule would not
interfere with the States' ability to manage themselves or their funds.
Changes in the regulations governing the take of eagles should not
result in significant economic impacts because this rule would allow
for the continuation of a current activity (take of eagles) albeit
under a different statute (shifting from the ESA to the Eagle Act). The
proposed regulatory process provides States the opportunity to
cooperate in management of bald eagle permits and eases the process for
permit applications. A Federalism Assessment is not required.
Civil Justice Reform (E.O. 12988). In accordance with Executive
Order 12988, the Office of the Solicitor has determined that this rule
does not unduly burden the judicial system and meets the requirements
of sections 3(a) and 3(b)(2) of the Order.
Government-to-Government Relationship with Tribes. In accordance
with the President's memorandum of April 29, 1994, ``Government-to-
Government Relations with Native American Tribal Governments'' (59 FR
22951) and 512 DM 2, we have evaluated potential effects on Federally
recognized Indian tribes and have determined that there are no
potential effects. This rule would not interfere with Tribes' ability
to manage themselves or their funds. Although it would implement a new
eagle-take-permit policy that would be available on tribal lands, the
option to acquire the permit would be the same on all lands in the
United States. This rule would not affect the operations of the eagle
distribution system of the National Eagle Repository.
Paperwork Reduction Act. This proposed rule contains information
collection requirements. We 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. In accordance with the
requirements of the Paperwork Reduction Act (PRA), we are asking OMB to
approve this proposed information collection. We will use the
information that we collect on permit applications to determine the
eligibility of applicants for permits requested in accordance with the
Eagle Act. Eagle permit regulations (50 CFR part 22) and general permit
regulations (50 CFR part 13) stipulate general and specific
requirements that when met allow us to issue permits to authorize
activities that are otherwise prohibited.
All Service permit applications are in the 3-200 series of forms,
each tailored to a specific activity based on the information
requirements for specific types of permits. The application forms for
other permits authorized under the Eagle Act are covered by OMB Control
Number 1018-0022. We collect standard information for all permits, such
as the name of the applicant and the applicant's address, telephone and
fax numbers, and e-mail address.
We are proposing two additional forms to be used as (1) the
application for a Sec. 22.26 take permit (FWS Form 3-200-71), and (2)
the application for emergency take of eagle nests under Sec. 22.27
(FWS Form 3-200-72). The additional information we would collect on FWS
Form 3-200-71 is presented in Sec. 22.26(b) of this proposed
regulation, and the additional information we would collect on FWS Form
3-200-72 is presented in Sec. 22.27(b). We are proposing to use a new
form (FWS Form 3-202-15) as the annual report form for the Sec. 22.26
eagle take permit (FWS Form 3-202-15). The additional information that
would be collected on the report form is presented in Sec. 22.26(e) of
this
[[Page 31152]]
proposed regulation. The information collected for eagle permits is
part of a system of records covered by the Privacy Act (5 U.S.C.
552(a)).
We estimate approximately 200 non-Federal applicants will apply for
eagle-take permits and 3 non-Federal applicants will submit applicants
for emergency nest take permits. We believe the annual burden hours for
non-Federal entities will be 5,251 as indicated in the table below.
----------------------------------------------------------------------------------------------------------------
Completion
Annual no. of Total annual time per Total annual Total burden
Activity/requirement respondents responses response burden hrs cost to public
(non-Federal) (hrs) ($30/hr)
----------------------------------------------------------------------------------------------------------------
FWS Form 3-200-71--permit 200 200 10 2,000 $60,000
application...................
FWS Form 3-202-15--annual 300 300 10 3,000 90,000
report Sec. 22.26 &
monitoring....................
FWS Form 3-200-72--permit 3 3 6 18 540
application...................
Monitoring and reporting for 3 3 6 18 540
Sec. 22.27 permit...........
Amendments to permits.......... 6 6 2 12 360
Recordkeeping--Sec. 22.26-27. *203 *203 1 203 6,090
--------------------------------- -------------------------------
Totals..................... 512 512 .............. 5,251 $157,530
----------------------------------------------------------------------------------------------------------------
*Not included in totals--respondents are the same as for permit applications.
We invite interested members of the public and affected agencies to
comment on these proposed information collection and recordkeeping
activities. Comments are invited on: (1) Whether or not the collection
of information is necessary for the proper performance of the functions
of the Service, including whether or not the information will have
practical utility; (2) the accuracy of our estimate of the burden for
this collection; (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 applicants.
Send your comments and suggestions on this information collection
to the Desk Officer for the Department of the Interior at OMB-OIRA at
(202) 395-6566 (fax) or OIRA_DOCKET@OMB.eop.gov (e-mail). Please
provide a copy of your comments to Hope Grey, Information Collection
Clearance Officer, Fish and Wildlife Service, MS 222-ARLSQ, 4401 North
Fairfax Drive, Arlington, VA 22203 (mail); (703) 358-2269 (fax); or
hope_grey@fws.gov (e-mail).
National Environmental Policy Act. We have considered this proposed
action and determined that we will prepare an environmental assessment
(EA) in compliance with the National Environmental Policy Act of 1969.
The public will be invited to participate in this process and will be
provided an opportunity for review and comment on the draft EA, when
completed.
Clarity of this regulation. Executive Order 12866 requires each
agency to write regulations that are easy to understand. We invite your
comments on how to make this rule easier to understand, including
answers to questions such as the following: (1) Are the requirements in
the rule clearly stated? (2) Does the rule contain technical language
or jargon that interferes with its clarity? (3) Does the format of the
rule (grouping and order of sections, use of headings, paragraphing,
etc.) aid or reduce its clarity? (4) Would the rule be easier to
understand if it were divided into more (but shorter) sections? (5)
Does the description of the rule in the SUPPLEMENTARY INFORMATION
section of the preamble help you to understand the proposed rule? What
else could we do to make the rule easier to understand?
Send a copy of any comments about how we could make this rule
easier to understand to: Office of Regulatory Affairs, Department of
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You
may also e-mail comments on the clarity of this rule to:
Exsec@ios.doi.gov.
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
Birds, Exports, Imports, Migratory Birds, Reporting and
recordkeeping requirements, Transportation, Wildlife.
For the reasons described in the preamble, we propose to amend
Subchapter B of Chapter I, Title 50 of the Code of Federal Regulations,
as set forth below:
PART 13--[AMENDED]
1. The authority citation for part 13 continues to read as follows:
Authority: 16 U.S.C. 668a, 704, 712, 742j-1, 1374(g), 1382,
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C.
1202; 31 U.S.C. 9701.
2. Amend Sec. 13.11(d)(4) by adding two entries under ``Bald and
Golden Eagle Protection Act'' in the table, to read as follows:
Sec. 13.11 Application procedures.
* * * * *
(d) * * *
(4) User fees. * * *
------------------------------------------------------------------------
Amendment
Type of permit CFR citation Fee fee
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
Bald and Golden Eagle Protection Act
------------------------------------------------------------------------
* * * * *
------------------------------------------------------------------------
Eagle Take...................... 50 CFR 22......... 500 150
Eagle Nest Take--Safety 50 CFR 22......... 300 150
Emergency.
[[Page 31153]]
* * * * *
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * *
3. Amend Sec. 13.12(b) by adding to the table the following
entries in numerical order by section number under ``Eagle permits'' to
read as follows:
Sec. 13.12 General information requirements on applications for
permits.
* * * * *
(b) * * *
------------------------------------------------------------------------
Type of permit Section
------------------------------------------------------------------------
* * * * *
Eagle permits:
* * * * *
Eagle Take.................................................... 22.26
Eagle Nest Take--Safety Emergency............................. 22.27
* * * * *
------------------------------------------------------------------------
PART 22--[AMENDED]
4. The authority citation for part 22 is amended to read as
follows:
Authority: 16 U.S.C. 668-668d; 16 U.S.C. 703-712; 16 U.S.C.
1531-1544.
5. Amend Sec. 22.1 by revising the first sentence to read as
follows:
Sec. 22.1 What is the purpose of this part?
This part controls the taking, possession, and transportation
within the United States of bald and golden eagles and their parts,
nests, and eggs for scientific, educational, depredation control
purposes; for the religious purposes of American Indian tribes; and to
protect other interests in a particular locality. * * *
6. Amend Sec. 22.3 as follows:
a. By removing the definition of ``Golden eagle nest.''
b. By revising the definition of ``Take'' to read as set forth
below; and
c. By adding new definitions for ``Eagle nest'' and ``Important
eagle-use area'' to read as set forth below.
Sec. 22.3 What definitions do you need to know?
* * * * *
Eagle nest means a structure built, maintained, or used by bald or
golden eagles for the purpose of reproduction.
* * * * *
Important eagle-use area means an eagle nest, foraging area, or
communal roost site that eagles rely on for sheltering and feeding, and
the landscape features surrounding such nest, foraging area, or roost
site that are essential for the continued viability of the site for
breeding, feeding, or sheltering eagles.
* * * * *
Take means pursue, shoot, shoot at, poison, wound, kill, capture,
trap, collect, destroy, molest, or disturb.
* * * * *
7. Amend Sec. 22.4(b) by revising the first sentence to read as
follows:
Sec. 22.4 Information collection requirements.
* * * * *
(b) We estimate the public reporting burden for these reporting
requirements to vary from 1 to 10 hours per response, with an average
of 3 hours per response, including time for reviewing instructions,
gathering and maintaining data, and completing and reviewing the forms.
* * *
8. Amend Sec. 22.11 as follows:
a. By revising the first sentence of the introductory text to read
as set forth below;
b. By redesignating paragraphs (a), (b), and (c) as paragraphs (b),
(c), and (d); and
c. By adding a new paragraph (a) to read as set forth below.
Sec. 22.11 What is the relationship to other permit requirements?
You may not take, possess, or transport any bald eagle (Haliaeetus
leucocephalus) or any golden eagle (Aquila chrysaetos), or the parts,
nests, or eggs of such birds, except as allowed by a valid permit
issued under this part, 50 CFR part 13, 50 CFR part 17, and/or 50 CFR
part 21 as provided by Sec. 21.2, or authorized under a depredation
order issued under subpart D of this part. * * *
(a) A valid permit that covers take of eagles under 50 CFR part 17
constitutes a valid permit issued under this part for any take
authorized under the permit issued under part 17 as long as the
permittee fully complies with the terms and conditions of the permit
issued under part 17.
* * * * *
Subpart C--Eagle Permits
9. Amend part 22, subpart C, by adding new Sec. 22.26 and Sec.
22.27 to read as follows:
Sec. 22.26 Eagle take permits.
(a) Purpose and scope. This permit authorizes: (1) Take of bald and
golden eagles for the protection of other interests in any particular
locality, where such permits are consistent with the preservation of
the bald and golden eagle, and the take is associated with, and not the
purpose of, the activity, and cannot practicably be avoided; or
(2) Take of bald eagles that complies with the terms and conditions
of a previously granted section 7 incidental take statement, or a
section 10 incidental take permit where the bald eagle was the only
listed covered species, under the Endangered Species Act of 1973, as
amended (16 U.S.C. 1531 et seq.).
(b) Applying for an eagle take permit. (1)(i) For applications
under paragraph (a)(1) of this section, you are advised to coordinate
with the Service as early as possible for technical assistance in
assembling your permit application package and for advice on whether a
permit is needed. The Service will provide guidance on developing
complete and adequate application materials and will determine when the
application form and materials are ready for submission. Completed
applications (Form 3-200-71) must contain the general information and
certification required by Sec. 13.12(a) of this subchapter, and the
information listed below:
(A) A detailed description of the activity that the permittee
believes will likely cause the disturbance or other take of eagles;
(B) The species and number of eagles that are likely to be taken
and the likely form of that take;
(C) Maps and digital photographs that depict the locations of the
proposed activity and the eagle nests, foraging areas, and
concentration sites where eagles are likely to be affected by the
proposed activity (including the GPS coordinates of the activity area
and eagle-use area(s) and the distance(s) between those areas);
(D) For activities that are likely to disturb eagles, whether or
not the important eagle-use area(s) is visible from the activity area,
or if screening vegetation or topography blocks the view;
(E) The nature and extent of existing activities in the vicinity
similar to that
[[Page 31154]]
being proposed, and the distance between those activities and the
important eagle use area(s);
(F) The date the activity will start and is projected to end;
(G) An explanation of what interests(s) in a particular locality
will be protected by the take (including any anticipated benefits to
the applicant);
(H) An explanation of why avoiding the take is not practicable, or
for lethal take, why it is unavoidable;
(I) A description of measures proposed to minimize and mitigate the
impacts; and
(J) Other information the Service may request specific to that
particular proposal and consistent with the information collection
requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
(ii) You are responsible for conducting any field surveys that we
need for your application to be complete, including compiling data on
the location and status of eagle nests and important use areas within
the affected area.
(iii) Send completed permit applications to the Regional Director
of the Region in which the disturbance would occur--Attention:
Migratory Bird Permit Office. You can find the current addresses for
the Regional Directors in Sec. 2.2 of subchapter A of this chapter.
(2) For applications under paragraph (a)(2) of this section, your
application must consist of a copy of the applicable section 7
incidental take statement or section 10 incidental take permit issued
pursuant to the Endangered Species Act (ESA), and a certification that
you are fully complying with the terms and conditions of the ESA
authorization.
(c) Evaluation of applications. (1) In our evaluation of permit
applications under paragraph (a)(1) of this section, we will consider a
number of factors, including whether practicable measures can be
undertaken that would minimize the probability of take, and whether the
take to be permitted is compatible with the preservation of bald or
golden eagles. Factors to be considered may include the magnitude of
the impacts of the activity; individual eagles' prior exposure to, and
history with, the activity; visibility of the activity from the eagle's
nest, roost, or foraging perches; whether alternative suitable eagle
nesting, roosting, and/or feeding habitat is available to the eagles
affected by the activity; and practices that will be employed by the
applicant to reduce the potential take of eagles. In cases where our
evaluation of these additional factors leads to the conclusion that
disturbance or other take will likely occur, we will assess whether
that take is likely to lead to a decrease in eagle population size. If
a population decrease is likely, we will assess whether or not that
decrease is compatible with the long-term preservation of bald and
golden eagles. For applications for activities that are likely to
result in eagle mortalities, we will assess whether the activity is
necessary for the public welfare and whether the project proponent is
using Best Management Practices (BMPs) to prevent the take. Permits
will authorize anticipated lethal take only where BMPs are fully
implemented.
(2) For applications under paragraph (a)(2) of this section, we
will evaluate whether you are in full compliance with the terms and
conditions of the applicable Endangered Species Act authorization.
(d) Required determinations. (1) Before we issue a permit under
(a)(1) of this section, we must find that:
(i) The taking is necessary to protect an interest in a particular
locality, and for lethal take, the activity is also necessary for the
public welfare;
(ii) The applicant has minimized impacts to bald eagles to the
extent practicable, and for lethal take, the taking will occur despite
application of BMPs;
(iii) The taking is compatible with the preservation of bald and
golden eagles, including the cumulative effects of other similar
existing and anticipated activities.
(2) For a permit under (a)(2) of this section, you are in full
compliance with the terms and conditions of an ESA authorization for
eagle.
(e) Permit conditions. (1) For permits issued under paragraph
(a)(1) of this section, in addition to the conditions set forth in part
13 of this subchapter, which govern permit renewal, amendment,
transfer, suspension, revocation, and other procedures and requirements
for all permits issued by the Service, your authorization is subject to
the following additional conditions:
(i) You must comply with any minimization, mitigation, or other
conservation measures determined by the Director as reasonable to
assure the preservation of eagles and practicable given the proposed
activity, and which are included in the terms of your permit;
(ii) You must monitor eagle use of important eagle-use areas
potentially affected by your activities for up to 3 years or as set
forth in a separate management plan, as specified on your permit. You
must submit an annual report to the Service every year that your permit
is valid and for up to 3 years after completion of the activity or
termination of the permit, as specified in your permit. If your permit
expires or is suspended or revoked before the activity is completed,
you must submit the report within 60 days of such date. Reporting
requirements include:
(A) Information on eagle use of the important eagle-use areas
potentially affected.
(B) Description of the human activities conducted at the site when
eagles were observed.
(iii) While the permit is valid and for up to 3 years after it
expires, you must allow Service personnel, or other qualified persons
designated by the Service, access to the areas where eagles are likely
to be affected, at any reasonable hour, and with reasonable notice from
the Service, for purposes of monitoring eagles at the site(s).
(iv) The authorizations granted by permits issued under this
section apply only to take that results from activities conducted in
accordance with the description contained in the permit application and
the terms of the permit. If the permitted activity changes after a
permit is issued, you must immediately contact the Service to determine
whether a permit amendment is required in order to continue to retain
take authorization.
(v) Notwithstanding the provisions of Sec. 13.26 of this
subchapter, you remain responsible for any outstanding minimization,
mitigation, or other conservation measures required under the terms of
the permit for take that occurs prior to expiration, suspension, or
revocation of the permit.
(2) For permits issued under paragraph (a)(2) of this section, you
must comply with all terms and conditions of your authorization issued
under section 7 or section 10 of the Endangered Species Act.
(f) Permit duration. (1) The duration of each permit issued under
paragraph (a)(1) of this section will be designated on its face, and
will be based on the duration of the proposed activities and mitigation
measures.
(2) The duration of a permit issued under paragraph (a)(2) of this
section is that designated on the face of the applicable Endangered
Species Act incidental-take authorization.
22.27 Removal of eagle nests for safety emergencies.
(a) Purpose and scope. A permit may be issued under this section to
facilitate removal or relocation of an eagle nest where its location
poses a threat to public safety or to the eagles themselves. Where
practicable, the nest should be relocated to a suitable site
[[Page 31155]]
within the same territory to provide a viable nesting option for eagles
within that territory, unless such relocation would create a similar
threat to safety. However, the Service retains the discretion in
appropriate instances to issue permits to remove nests that we
determine cannot be relocated. The permit may authorize take of eggs or
nestlings if present. The permit may also authorize the take of eagles
(i.e., disturbance) associated with and resulting from the removal of
the nest.
(b) Applying for a permit to take eagle nests for safety needs.
Before compiling and submitting your permit application, you should
contact your local U.S. Fish and Wildlife Service Ecological Services
Office. We may make an on-site assessment to verify that the location
of the nest poses a threat to human or eagle safety. Send a completed
application (Form 3-200-72) and permit application fee to the Regional
Director of the Region in which the disturbance would occur--Attention:
Migratory Bird Permit Office. You can find the current addresses for
the Regional Directors in Sec. 2.2 of subchapter A of this chapter.
Your application must contain the general information and certification
required by Sec. 13.12(a) of this subchapter, and the information
listed below:
(1) The number of nests proposed to be taken, whether the nest(s)
is a bald eagle or golden eagle nest, and whether the nest(s) is active
or inactive;
(2) Why the removal of each nest is necessary to alleviate safety
concerns;
(3) A description of the property, including maps and digital
photographs that show the location of the nest in relation to
buildings, infrastructure, and human activities;
(4) The location of the property, including latitude and longitude;
(5) The length of time for which the permit is requested, including
beginning and ending dates;
(6) A statement indicating the intended disposition of the nest,
and if active, the nestlings or eggs; and
(7) Other information the Service may request specific to that
particular proposal and consistent with the information collection
requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
(c) Evaluation criteria. In our evaluation of permit applications,
we will consider whether the purpose for which the nest would be taken
is a legitimate emergency safety concern, and whether the take of the
nest is consistent with the preservation of bald and golden eagles.
(d) Conditions. (1) Any take of nestlings or eggs must be conducted
by a qualified, permitted, designated agent, and all nestlings and eggs
must be immediately transported to foster/recipient nests or a
rehabilitation facility permitted to care for eagles until such time as
they can be placed in foster/recipient nests.
(2) Possession of the nest for any purposes other than removal or
relocation is prohibited without a separate permit issued under this
part authorizing such possession.
(3) You must submit a report of activities conducted under the
permit to the Service within 30 days after the permitted take occurs.
(4) You may be required to monitor the site and report whether
eagles attempt to build or nest in another nest in the vicinity for the
duration specified in the permit.
(5) You may be required under the terms of the permit to harass
eagles from the area following the nest removal when the Service
determines it is necessary to prevent eagles from re-nesting in the
vicinity and when it is practicable to do so.
(e) Tenure of permits. The tenure of any permit to take eagle nests
under this section is 1 year from the date of issuance, unless a
shorter period of time is prescribed on the face of the permit.
Dated: May 23, 2007.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-2697 Filed 6-4-07; 8:45 am]
BILLING CODE 4310-55-P
