46836 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Parts 13 and 22 

[FWS-R9-MB-2008-0057; 

91200-1231-9BPP-L2] 

RIN 1018-AV81 

Eagle Permits; Take Necessary To 

Protect Interests in Particular 

Localities 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: In conjunction with release of 

a final environmental assessment of this 

action, the U.S. Fish and Wildlife 

Service (‘‘we’’ or ‘‘the Service’’) is 

finalizing permit regulations to 

authorize limited take of bald eagles 

(Haliaeetus leucocephalus) and golden 

eagles (Aquila chrysaetos) under the 

Bald and Golden Eagle Protection Act 

(Eagle Act), where the take to be 

authorized is associated with otherwise 

lawful activities. These regulations also 

establish permit provisions for 

intentional take of eagle nests under 

particular, limited circumstances. 

DATES: This rule goes into effect on 

November 10, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Eliza Savage, Division of Migratory Bird 

Management, via e-mail at 

eliza_savage@fws.gov; telephone: 703- 

358-2329; or U.S. Fish and Wildlife 

Service, 4401 North Fairfax Drive, 

Mailstop 4107, Arlington, Virginia 

22203-1610. 

SUPPLEMENTARY INFORMATION: 

Background 

These final regulations authorize the 

limited take of bald eagles and golden 

eagles under the Bald and Golden Eagle 

Protection Act (Eagle Act) (16 U.S.C. 

668–668d), where the take to be 

authorized is associated with otherwise 

lawful activities. These regulations also 

establish permit provisions for 

intentional take of eagle nests where 

necessary to ensure public health and 

safety and in other limited 

circumstances. We proposed these 

regulations on June 5, 2007 (72 FR 

31141) and provided a 90–day public 

comment period, which closed on 

September 4, 2007. The Service received 

approximately 21,500 comments, about 

21,400 of which are essentially 

identical. Thirty-five respondents 

provided substantive input that was 

helpful in crafting final regulations. The 

35 respondents consisted of: one 

Federal agency, three tribes, six State 

conservation agencies, four flyway 

committees (associations of State 

conservation agencies), one State 

department of transportation, five 

environmental non-governmental 

organizations (NGOs), four industry 

associations, three law firms/ 

consultants on behalf of Florida 

development companies, two power 

companies, one Federal reclamation 

project, one airport, three rail 

transportation companies (commenting 

together), and three private citizens. 

We released a draft environmental 

assessment (DEA) of the action on 

August 14, 2008 (73 FR 47574) and reopened the public comment period on 

the proposed rule with some revisions 

noted in the August 14 Federal Register 

notice. During that 30–day comment 

period, we received 58 comments from: 

one airport, three electric utilities, three 

Federal agencies, ten individuals (nontribal), five industry associations, nine 

NGOs, one conglomeration of railroad 

companies, 13 State agencies, three 

flyway committees, one transportation 

association, three Native American 

tribal members one tribal Department of 

Natural Resources, three tribes, and two 

confederations of tribes. 

Based on public comment received on 

the June 5, 2007 proposed rule, new 

information compiled through the 

process of drafting the DEA, and public 

comment on the DEA and re-opened 

rule, we developed this final rule, the 

final environmental impact assessment 

(FEA), and a Finding of No Significant 

Impact. Along with a variety of small 

changes, this final rule contains the 

following significant additions and 

revisions from the June 5, 2007, 

proposed rule: 

•The rule was split into two rules to 

be finalized separately from one 

another. The original proposal to extend 

(or ‘‘grandfather’’) Eagle Act take 

authorization to take previously 

authorized under the Endangered 

Species Act (ESA) (16 U.S.C. 1531 et 

seq.) has been separated from the 

remainder of the provisions in order to 

finalize the ‘‘grandfathering’’ provisions 

more expeditiously. Those provisions 

were published as a final rule on May 

20, 2008 (73 FR 29075). 

•We modified our interpretation 

(provided in the June 5, 2007, proposed 

rule) of the statutory mandate that 

permitted take be ‘‘compatible with the 

preservation of the bald eagle or the 

golden eagle.’’ In the original proposal, 

we proposed to use the standard that 

regional and national eagle populations 

not decline at a rate greater than 0.54% 

annually. In this final rule, we interpret 

the ‘‘preservation’’ standard to allow 

actions that are consistent with the goal 

of stable or increasing breeding 

populations. 

•The rule includes new issuance 

criteria to ensure that, except for safety 

emergencies, Native American religious 

needs are given first priority if requests 

for eagle take permits exceed take 

thresholds that are compatible with the 

preservation of the bald eagle or the 

golden eagle. 

•The rule no longer provides different 

issuance criteria for lethal versus nonlethal take. Rather, it contains separate 

provisions for programmatic take versus 

individual instances of take. 

•We amend the existing Eagle 

Depredation Permit regulations at 50 

CFR 22.23 to extend permit tenure from 

90 days to up to 5 years for purposes of 

hazing eagles. The purpose of these 

revisions is to enable issuance of 

permits that combine programmatic 

authorizations provided under § 22.23 

and the regulations in this final rule. We 

are also taking the opportunity to revise 

terminology throughout § 22.23 to 

clarify that we can issue permits under 

that section to prevent or resolve safety 

emergencies as well as to protect 

agriculture and wildlife. 

•The rule expands (from the June 

2007 proposed rule) the purposes for 

which eagle nests may be taken to 

include take necessary to ensure public 

health and safety. The proposed rule 

limited nest removal to emergencies 

where human or eagle safety was 

imminently threatened. 

• Nest take permits may be issued for 

projects that will provide a net benefit 

to eagles (including projects where the 

net benefit is the result of compensatory 

mitigation measures). 

• Permits may also be issued to take 

eagle nests built on human-engineered 

structures where the nest interferes with 

the intended use of the structure. 

•The rule redefines some terms and 

includes new definitions for a number 

of additional terms used in the 

regulations. 

The Bald and Golden Eagle Protection 

Act (16 U.S.C. 668-668d) (Eagle Act) 

prohibits the take of bald eagles and 

golden eagles unless pursuant to 

regulations (and in the case of bald 

eagles, take can only be authorized 

under a permit). While the bald eagle 

was listed under the ESA, 

authorizations for incidental take of 

bald eagles were granted through the 

ESA’s section 10 incidental take permits 

and ESA’s section 7 incidental take 

statements, both of which were issued 

with assurances that the Service would 

exercise enforcement discretion in 

relation to violations of the Eagle Act 

and Migratory Bird Treaty Act (MBTA) 

(16 U.S.C. 703-712). Upon delisting, all 


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

prohibitions contained in the ESA, such 

as those that prescribe the take of bald 

eagles, no longer apply. However, the 

potential for human activities to violate 

Federal law by taking eagles remains 

under the prohibitions of the Eagle Act 

and the MBTA. The Eagle Act defines 

the ‘‘take’’ of an eagle to include a broad 

range of actions: ‘‘pursue, shoot, shoot 

at, poison, wound, kill, capture, trap, 

collect, or molest or disturb.’’ ‘‘Disturb’’ 

is defined in regulations at 50 CFR 22.3 

as: ‘‘to agitate or bother a bald or golden 

eagle to a degree that causes, or is likely 

to cause, based on the best scientific 

information available, (1) injury to an 

eagle, (2) a decrease in its productivity, 

by substantially interfering with normal 

breeding, feeding, or sheltering 

behavior, or (3) nest abandonment, by 

substantially interfering with normal 

breeding, feeding, or sheltering 

behavior.’’ 

Many actions that are considered 

likely to incidentally take (harm or 

harass) eagles under the ESA will also 

disturb or otherwise take eagles under 

the Eagle Act. Until now, there was no 

regulatory mechanism in place under 

the Eagle Act to permit take of bald or 

golden eagles comparable to incidental 

take permits under the ESA. This rule 

adds a new section at 50 CFR 22.26 to 

authorize the issuance of permits to take 

bald eagles and golden eagles on a 

limited basis. The regulations are 

applicable to golden eagles as well as 

bald eagles. We will authorize take of 

bald or golden eagles only if we 

determine that the take (1) is compatible 

with the preservation of the bald eagle 

and the golden eagle and (2) cannot 

practicably be avoided. For purposes of 

these regulations, ‘‘compatible with the 

preservation of the bald eagle or the 

golden eagle’’ means ‘‘consistent with 

the goal of stable or increasing breeding 

populations.’’ Although the biologicallybased take thresholds for permitting 

under these regulations will be based on 

regional populations (as explained 

below and in more detail in the FEA), 

we will also consider other factors, such 

as cultural significance, that may 

warrant protection of smaller and/or 

isolated populations within a region. 

We are adding a second new section 

at 50 CFR 22.27 to authorize the 

removal of bald eagle and golden eagle 

nests where (1) necessary to alleviate a 

safety hazard to people or eagles, (2) 

necessary to ensure public health and 

safety, (3) the nest prevents the use of 

a human-engineered structure, or (4) the 

activity, or mitigation for the activity, 

will provide a net benefit to eagles. We 

are also promulgating new definitions 

under the Eagle Act to clarify terms 

used in the permit regulations. Permit 

issuance under § 22.26 and § 22.27 will 

be governed by the permit provisions 

presently in 50 CFR parts 13 and 22, 

and new provisions we are finalizing as 

§ 22.26 and § 22.27. 

In our June 5, 2007, proposed rule, we 

also proposed certain provisions to 

extend Eagle Act authorizations to 

persons previously granted 

authorization to take eagles under the 

ESA. We split the rulemaking into two 

separate rules and finalized the ESArelated provisions separately on May 20, 

2008 (73 FR 29075). 

Most rules take effect 30 days after 

Federal Register publication; however, 

more time is needed to work out 

important details about how this 

program will be implemented. Therefore 

this rule has an effective date of 60 days 

after publication in the Federal 

Register. We are drafting 

implementation guidance, and will 

release it for public notice and comment 

before officially adopting it. Although 

the implementation guidance will not 

be finalized by the rule’s effective date, 

the extra 30 days will help promote 

consistency in the initial permit 

administration, and we can begin 

issuing permits using the draft 

guidance. 

History 

On August 8, 2007, the bald eagle was 

removed from the List of Threatened 

and Endangered Wildlife (72 FR 37345, 

July 9, 2007). The final delisting rule 

also constituted our final decision that 

the Sonoran Desert population of bald 

eagles did not qualify as a distinct 

population segment (DPS), and was 

therefore not a listable entity under the 

ESA. Our finding on the status of the 

Sonoran Desert population was 

challenged in court. A March 5, 2008, 

ruling by the U.S. District Court for the 

District of Arizona (Center for Biological 

Diversity v. Kempthorne, CV 07-0038- 

PHX-MHM (D. Ariz)) ruled in favor of 

the plaintiffs. As a result of the court 

order, we published two documents in 

the Federal Register. First, on May 1, 

2008, we published a final rule 

reinstating ESA threatened status for 

bald eagles in the Sonoran Desert area 

of central Arizona (73 FR 23966). The 

final rule also included a map showing 

the geographic area where bald eagles 

are protected as a threatened species. 

Second, on May 20, 2008, we published 

a notice initiating a status review for 

bald eagles in the Sonoran Desert area 

of central Arizona (73 FR 29096). Once 

the status review is completed, we will 

issue a 12–month finding on whether 

listing these bald eagles as a DPS under 

the ESA is warranted, and if so, whether 

that DPS should be listed as threatened 

or endangered. 

We estimate the current number of 

breeding pairs in the 48 contiguous 

States to be over 9,700. Bald eagles were 

never listed as threatened or endangered 

in Alaska, where we currently estimate 

bald eagles to number between 50,000 

and 70,000 birds, including 

approximately 15,000 breeding pairs. 

Bald eagles do not occur in Hawaii. 

Under sections 7(b)(4) and 10(a)(1)(B) 

of the ESA, we may authorize the 

incidental take of listed wildlife that 

occurs in the course of otherwise lawful 

activities. Thus, while the bald eagle 

was listed under the ESA in the lower 

48 States (and where it is still listed, i.e., 

the Sonoran Desert area of central 

Arizona), two mechanisms were 

available to authorize take that was 

associated with, but not the purpose of, 

a human activity. Eagle take that was 

prohibited under the ESA is, in many 

instances, also prohibited under the 

Eagle Act. Now that the bald eagle is 

delisted (except for the Sonoran Desert 

population), a mechanism is needed to 

authorize take of bald eagles pursuant to 

the Eagle Act. The mechanism should 

also be available to authorize take of 

golden eagles, which were never listed 

as threatened or endangered under the 

ESA, as long as it is crafted with 

sufficient safeguards to ensure the 

preservation of both species. 

The Eagle Act provides that the 

Secretary of the Interior may authorize 

certain otherwise prohibited activities 

through promulgation of regulations. 

The Secretary is authorized to prescribe 

regulations permitting the ‘‘taking, 

possession, and transportation of [bald 

or golden eagles] . . . for the scientific 

or exhibition purposes of public 

museums, scientific societies, and 

zoological parks, or for the religious 

purposes of Indian tribes, or . . . for the 

protection of wildlife or of agricultural 

or other interests in any particular 

locality,’’ provided such permits are 

‘‘compatible with the preservation of the 

bald eagle or the golden eagle’’ (16 

U.S.C. 668a). In accordance with this 

authority, the Secretary has previously 

promulgated Eagle Act permit 

regulations for scientific and exhibition 

purposes (50 CFR 22.21), for Indian 

religious purposes (50 CFR 22.22), to 

take depredating eagles (50 CFR 22.23), 

to possess golden eagles for falconry (50 

CFR 22.24), and for the take of golden 

eagle nests that interfere with resource 

development or recovery operations (50 

CFR 22.25). This rulemaking establishes 

permit regulations to authorize eagle 

take ‘‘for the protection of . . . other 

interests in any particular locality.’’ 

This statutory language accommodates a 


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

broad spectrum of public and private 

interests (such as utility infrastructure 

development and maintenance, road 

construction, operation of airports, 

commercial or residential construction, 

resource recovery, recreational use, etc.) 

that might ‘‘take’’ eagles as defined 

under the Eagle Act. 

In accordance with the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), we have prepared a final 

environmental assessment (FEA) of this 

action. You can obtain a copy of the 

FEA from http://www.fws.gov/ 

migratorybirds/baldeagle.htm. 

Description of the Rulemaking 

Take Permit Regulations Under 50 CFR 

22.26. 

We promulgate a new permit 

regulation under the authority of the 

Eagle Act for the limited take of bald 

eagles and golden eagles ‘‘for the 

protection of . . . other interests in any 

particular locality’’ where the take is 

compatible with the preservation of the 

bald eagle and the golden eagle, is 

associated with and not the purpose of 

an otherwise lawful activity, and cannot 

practicably be avoided. ‘‘Practicable’’ in 

this context means ‘‘capable of being 

done after taking into consideration, 

relative to the magnitude of the impacts 

to eagles (1) the cost of remedy 

compared to proponent resources; (2) 

existing technology; and (3) logistics in 

light of overall project purposes.’’ 

We anticipate that permits issued 

under this regulation will usually 

authorize take that occurs in the form of 

disturbance; however, in some limited 

cases, a permit may authorize lethal take 

that results from but is not the purpose 

of an otherwise lawful activity. 

Programmatic take (take that is recurring 

and not in a specific, identifiable 

timeframe and/or location) will be 

authorized only where it is unavoidable 

despite implementation of 

comprehensive measures developed in 

cooperation with the Service to reduce 

the take below current levels (see 

discussion below, under ‘‘Programmatic 

permits’’). This type of authorization 

can be extended to industries, such as 

electric utilities or transportation 

industries, that currently take eagles in 

the course of otherwise lawful activities 

but who can work with the Service to 

develop and implement additional, 

exceptionally comprehensive measures 

to reduce take to the level where it is 

essentially unavoidable. A 

programmatic take permit could also be 

issued to State and Federal agencies that 

take eagles in the course of their 

activities (e.g., construction and 

maintenance of roads and other critical 

infrastructure) if they adopt such 

advanced conservation measures. 

Purposeful take will not be authorized 

under this permit. In rare cases where 

purposeful take may be necessary to 

avoid incidental take (such as relocating 

birds or a nest from a critical project 

area), it may be authorized under 50 

CFR 22.23 (for purposeful take of eagles 

to protect agriculture, wildlife, and 

other interests), 50 CFR 22.25 (take of 

golden eagle nests for resource 

development and recovery operations), 

or new 50 CFR 22.27 (take of nests for 

health and safety). The latter regulation 

is finalized as part of this rulemaking. 

Where appropriate, the Service will 

issue a single permit that combines 

authorizations provided under the 

various regulations. For example, an 

airport that meets the obligations of its 

Wildlife Hazard Management Plan and 

adopts measures developed in 

cooperation with the Service to 

minimize the potential for take of 

eagles, could be issued a programmatic 

permit under these regulations (§ 22.26) 

that would be valid for up to 5 years to 

authorize eagle take that occurs as the 

result of unavoidable collisions between 

eagles and planes. One of the 

stipulations of the permit would likely 

be the requirement to haze eagles in the 

vicinity of airports, which in some cases 

could constitute disturbance (for 

example, to prevent eagles from renesting at a hazardous location). 

Because this hazing is intentional and 

the effects on the eagles purposeful, it 

does not meet the issuance criteria for 

the § 22.26 permit, which requires the 

taking to be associated with, but not the 

purpose of, the activity. Therefore, we 

would issue the permit with the 

combined authority of both § 22.26 and 

§ 22.23. However, the regulations at § 

22.23 had previously limited permit 

tenure to 90 days because the need for 

programmatic authorization was not 

contemplated at the time that regulation 

was developed. In order to have the 

ability to extend this type of 

authorization to ‘‘Advanced 

Conservation’’ programmatic permittees, 

we are amending the regulations at § 

22.23 to allow permits to also be valid 

for up to five years. We are also taking 

the opportunity to make additional 

minor revisions throughout § 22.23 to 

clarify that we may issue permits under 

that section to alleviate safety 

emergencies, and not just to protect 

agriculture, wildlife or other interests 

from depredating eagles. Hazing eagles 

at airports has been the primary purpose 

for which we have exercised this option, 

but there may be other scenarios where 

eagles are not depredating on any 

resource or private property, but their 

presence poses a danger to themselves 

or to people (e.g. at uncovered landfills 

where eagles may ingest toxic 

substances). Other than these clarifying 

revisions, including to the section title, 

and amending the permit tenure, we are 

not making any substantive revisions to 

the regulations at § 22.23 in this 

rulemaking. 

Population Assessment and Take 

Thresholds. Permit issuance will be 

conditioned on various criteria, the 

most important of which is that the 

permitted take is compatible with the 

preservation of the bald eagle and the 

golden eagle. The statutory requirement 

that the authorized activities be 

compatible with the preservation of bald 

eagles and golden eagles ensures the 

continued protection of the species 

while allowing some impacts to 

individual eagles. For purposes of these 

regulations, ‘‘compatible with the 

preservation of the bald eagle and 

golden eagle’’ means ‘‘consistent with 

the goal of stable or increasing breeding 

populations.’’ 

In our June 5, 2007, proposed rule, we 

proposed to use 0.54% as the threshold 

rate of decline, which is the rate of 

decline used by Partners in Flight (PIF) 

as one of the factors for designating an 

avian species to their Continental Watch 

List. However, steady declines, even as 

small as 0.54% annually, would 

cumulatively result in an unacceptably 

large decrease in eagle populations over 

time. For this and other reasons (see 

Responses to Public Comments), we 

agree that the original proposed 

management scenario was not 

sufficiently conservative and will 

instead adopt as our management goal 

increasing or stable breeding 

populations. 

In the DEA and notice re-opening of 

the comment period on the rule (73 FR 

47574, August 14, 2008), to elucidate 

the statutory standard of ‘‘preservation 

of the bald eagle or the golden eagle,’’ 

we proposed the following terminology: 

‘‘maintaining increasing or stable 

populations.’’ We continue to support 

the essential meaning of that standard, 

but recognized that it could be 

misapplied to constrain any 

authorization of take because any take of 

a bald or golden eagle by some degree 

results in a population decrease, even if 

short-term and inconsequential for the 

long-term preservation of the species. 

Thus, if interpreted so narrowly, the 

word ‘‘maintaining’’ would render us 

unable to authorize any take. Therefore, 

we are revising our interpretation of 

‘‘preservation of the eagle’’ to read 

‘‘consistent with the goal of stable or 

increasing breeding populations.’’ The 


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Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations 46839 

phrase ‘‘consistent with the goal of’’ will 

allow take that is compatible with longterm stability or growth of eagle 

populations. Adding the word 

‘‘breeding’’ clarifies the significance of 

the number of breeding pairs for 

maintaining or growing populations, 

versus floaters (non-breeding adults). 

For more discussion on the biological 

basis for distinguishing between 

breeding eagles and floaters, see the 

FEA. 

To establish management populations 

for bald eagles, we used natal 

populations (eagles within the median 

natal dispersal range of each other, 

estimated at 43 miles) in our evaluation 

in order to look at distribution across 

the landscape. Being able to see where 

natal populations appear sparser, rather 

than concentrated, allows us to 

determine natural boundaries between 

regional eagle populations, reducing the 

risk that we would issue take permits in 

any one regional management area in a 

manner that is disproportionate to the 

population in the area. 

We acknowledge that this approach is 

somewhat subjective, and that the 

regional management populations 

delineated are not, in most cases, 

genetically or even demographically 

isolated. However, we believe the 

approach does serve to identify 

biologically-based, regional populations 

at a scale meaningful for eagle 

conservation. The Service’s goal in 

managing bald eagles at this scale is to 

ensure permitted take does not 

negatively affect the species’ status in 

any regional management population. 

Because the management populations 

delineated by this approach roughly 

correspond to the Service’s 

organizational structure made up of 

eight Service Regional Offices, we will 

manage bald eagles based on 

populations within the eight Service 

Regions, with some shared populations. 

Permits will be administered by Service 

Regions in coordination with each 

other, especially where a management 

area lies in more than one Service 

Region. We plan to evaluate this 

management and administrative 

approach regularly, at least once every 

five years. 

For golden eagles, available data on 

distribution are not as spatially precise 

as data for bald eagles. We will manage 

take of golden eagles according to 

thresholds set at the Bird Conservation 

Region (BCR) level because the only 

range-wide estimates available for 

golden eagles are BCR-scale population 

estimates. BCRs are ecologically distinct 

regions in North America with similar 

bird communities, habitats, and 

resource management issues. Developed 

by a mapping team at the first 

international meeting of the North 

American Bird Conservation Initiative 

(NABCI) in 1998, BCRs are an 

application of the framework of nested 

ecological units delineated by the 

Commission for Environmental 

Cooperation (CEC). 

Because Service Regions are not 

administered according to BCR 

boundaries, we will administer permits 

by Service Regional Permit offices. 

Service Regions would coordinate 

closely when issuing permits to ensure 

that the threshold for that BCR is not 

exceeded. Unfortunately, there is little 

reliable recent data for breeding golden 

eagles. Many States have not had the 

resources to conduct monitoring of 

golden eagle populations, in some cases 

for up to 20 or more years. However, we 

will base thresholds on existing data 

and modeling until better data become 

available. As discussed further below 

and in greater detail in the FEA, the best 

available data we have for golden eagles 

indicate modest declines in the four 

BCRs that constitute 80 percent of its 

range in the lower 48 states. As a result, 

until we have additional data to show 

that populations can withstand 

additional take, we are deferring 

implementation of the new permit types 

for golden eagles, except for safety 

emergencies and programmatic permits. 

We will continue to issue historicallyauthorized take permits under existing 

permit types at the level of take carried 

out under those permits (average over 

2002-2007). 

We will use modeling to evaluate the 

level of take we can permit that is 

compatible with this statutory 

threshold, taking into consideration the 

cumulative effects of all permitted take, 

including other forms of lethal take 

permitted under this section and other 

causes of mortality and nest loss. Due to 

the inherent limits of monitoring to 

detect precise fluctuations in bald eagle 

and golden eagle numbers, coupled with 

the uncertainty as to whether individual 

actions being permitted will in fact 

result in a ‘‘take,’’ we cannot precisely 

correlate each individual permit 

decision with a specific population 

impact. However, we will periodically 

re-calibrate regional take thresholds, 

using the best available data, including 

reporting data from permittees, data 

from post-delisting monitoring (for bald 

eagles), WEST surveys (for golden 

eagles), the Breeding Bird Survey, and 

fall and winter migration counts to 

assess the status of eagle populations 

and adjust permitting thresholds on an 

ongoing basis as appropriate. 

In our June 5, 2007, proposed rule, we 

stated that our preliminary analysis 

indicated that demand for permits 

under these regulations, and the effects 

of issuing those permits, including 

mitigation measures, would not be 

significant enough to cause a decline in 

eagle populations from current levels. 

(We recognized that take of bald eagles 

in the Southwest would need to be 

extremely limited, if permitted at all.) 

However, further analysis indicates that 

there are additional populations where 

a relatively modest level of demand for 

take permits could exceed the level of 

take that would be compatible with 

maintaining current population levels, 

particularly for golden eagles. 

A 2006 survey (Good and others, 

2007) showed decreasing golden eagle 

populations in two BCRs. A draft report 

of 2007 surveys in the same areas (BCRs 

9, 10, 16, and 17, hereinafter WEST 

areas) found decreasing golden eagle 

populations in two BCRs, one of which 

was the same as the previous report 

(Good and others, 2008). Kirk and 

Hyslop (1998) indicated that golden 

eagle populations may be declining in 

some areas of Canada. Good and others 

(2004) estimated that there were just 

over 27,000 golden eagles in the 4 BCRs 

in which the species is of conservation 

concern. These BCRs encompass much 

of the western U.S. population and most 

of the North American population of 

this species. Breeding bird surveys and 

migration counts are inconclusive but 

suggest lowered reproduction rates in 

the western United States, possibly due 

to habitat alteration and loss, with 

concomitant declines in prey (Kochert 

and others, 2002). A preliminary report 

on the 2008 surveys in the WEST areas 

showed population declines in all four 

BCRs covered in the survey, an area 

which is believed to contain 

approximately 80% of the golden eagle 

population in the lower 48 states. 

These new permits represent a 

somewhat different approach to eagle 

management and have significant policy 

implications and uncertainties. Those 

uncertainties and stochasticity (natural 

variability in vital rates affecting 

population trends) for both species 

support a more conservative approach 

than we proposed in our DEA, which 

proposed capping threshold at c 

maximum sustainable yield (MSY). The 

MSY is the greatest harvest rate over an 

indefinite period that does not produce 

a decline in the number of breeding 

adults in the population. 

For a number of reasons (outlined in 

the following discussion) we intend to 

initially cap permitted take of bald 

eagles at 5% estimated annual 

productivity. This approach is 

consistent with the recommendations 

made by Millsap and Allen (2006) for 


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46840 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations 

permitting take of various raptor species 

for falconry purposes. For golden eagles 

west of 100 degrees West longitude, 

including in Alaska, we will initially 

implement this rule only insofar as 

issuing take permits based on levels of 

historically authorized take, safety 

emergencies, and take permits designed 

to reduce ongoing mortalities and/or 

disturbance. Future projects seeking 

programmatic permits would need to 

minimize their own take of golden 

eagles to the point that it is unavoidable 

and also reduce take from another 

source to completely offset any new take 

from the new activity. Estimates of 

golden eagle population size in Alaska 

are coarse, based upon even fewer data 

sources than in the lower 48 states, and 

juvenile survival may be significantly 

lower, so management would therefore 

need to be conservative. In addition, 

McIntyre et al. (2008) suggested that 

conservation strategies for migratory 

golden eagles require a continental 

approach. 

For golden eagles east of 100 degrees 

West longitude, we will not issue any 

take permits unless necessary to 

alleviate an immediate safety 

emergency. We do not have enough data 

on rates of golden eagle mortality in the 

eastern U.S. to issue programmatic take 

permits. 

Our modeling showed there would be 

negative effects to the floater portion of 

the bald eagle population (using 

population trend data from Florida) at c 

MSY and even some minor effects with 

setting take at 5% of estimated annual 

productivity. Floaters, for which 

monitoring is rarely conducted, serve to 

buffer populations from decline in times 

when productivity does not offset 

mortality, and also serve to provide a 

buffer for unforeseen effects to 

populations. Importantly, the models 

did not factor in the cumulative impacts 

that were discussed in the DEA. 

Furthermore, the lack of annual 

monitoring to ensure we are not having 

a negative effect on populations, 

particularly when the thresholds we are 

establishing would be in effect for five 

years, compels us to adopt the more 

conservative approach. Some 

commenters, including eagle experts in 

various parts of the U.S. believe the 

DEA’s population numbers and survival 

rates for bald eagles may have been too 

high for some areas of the country. 

Additionally, the caps recommended 

in Millsap and Allen were in the context 

of falconry, where removal of birds from 

the population has no associated 

impacts to habitat, whereas many 

permits issued under both these new 

regulations will have long-term or 

permanent habitat-related impacts in 

addition to the removal of an individual 

from the population. Therefore, we 

believe that caps should be no less 

conservative than recommended for 

falconry take. 

The lower take thresholds also reflect 

the cultural significance of both species. 

Cultural significance is not limited to 

Native American religious purposes, but 

encompasses a broad cultural regard for 

both species. Although collected by 

some Native American tribes for 

ceremonial purposes, the overall 

cultural value placed on bald eagles and 

golden eagles is generally quite distinct 

from the value of harvesting them. This 

fact warrants a different, significantly 

more conservative approach than for 

managing game bird populations 

wherein allowable take approaches 

MSY. 

We intend, through a structured 

coordination process with States and 

tribes, to develop monitoring and 

research adequate to both resolve 

current uncertainties in the data and to 

provide enhanced ability to detect the 

effects of the permit program. If, after 

implementation for a time period 

commensurate with the normal 

population cycles of the eagle, data then 

indicate take thresholds can be 

increased in certain regions, we will 

increase thresholds accordingly to allow 

more take. One factor that should allow 

us to increase take thresholds in some 

regions for both species is the 

implementation of advanced 

conservation measures through 

programmatic permits to reduce ongoing 

take that is currently unauthorized. (See 

our discussion below under 

‘‘Programmatic Permits.’’) For more 

detailed discussion of population 

modeling and permitting thresholds, 

please see our final environmental 

assessment of this action, available on 

our website at http://www.fws.gov/ 

migratorybirds/baldeagle.htm. 

To address the possibility that 

demand exceeds our scientifically-based 

take thresholds, the final regulation 

contains permit issuance criteria to 

ensure that requests by Native 

Americans to take eagles from the 

wild—where the take of live, wild 

eagles is absolutely necessary to meet 

the religious purposes of the tribe, as 

opposed to the use of feathers and parts 

that may be obtained from the National 

Eagle Repository—are given first 

priority over all other take, except as 

necessary to alleviate safety 

emergencies. (Permit regulations 

governing take and possession of eagles 

by Native Americans are set forth in 50 

CFR 22.22) The American Indian 

Religious Freedom Act (42 U.S.C. 1996), 

sets forth Federal policy to protect and 

preserve the inherent right of American 

Indians to express and exercise their 

traditional religions, including but not 

limited to, access to sites, use and 

possession of sacred objects, and the 

freedom to worship through 

ceremonials and traditional rites. 

If emergency and Native American 

religious needs can be met, the issuance 

criteria further provide that 

programmatic permit renewals are given 

third priority. Projects to promote and 

maintain public health and safety have 

fourth priority. For golden eagle nest 

take permits, resource development and 

recovery operations have fifth priority. 

Assuming those interests can be met, 

bald eagle take for other interests may 

be permitted as long as total take 

authorizations do not surpass 5% 

estimated annual productivity for the 

regional bald eagle population. Initially, 

until we have data to show that golden 

eagles can withstand additional take, we 

will issue permits at historicallyauthorized take levels under existing 

permits, for emergency take, and for 

programmatic take (west of 100 degrees 

West longitude). If, in the future, data 

and modeling suggest golden eagle 

populations can support additional take, 

we would, in accordance with the 

prioritization criteria, begin to authorize 

golden eagle take at up to 1% of annual 

productivity, unless information 

available at that time demonstrates that 

higher levels of take can be supported 

(following Millsap and Allen 2006). 

The Service’s Regional Directors each 

will be responsible for developing a 

structured allocation process consistent 

with the rule’s prioritization criteria to 

be implemented in each Service Region 

if there is evidence that demand for take 

will exceed take thresholds for either 

species of eagle. 

Because we need, at least initially, to 

limit take permits for golden eagles to 

historically-authorized take levels, we 

will use the prioritization issuance 

criteria from this rule to guide permit 

decisions with regard to allocating all 

golden eagle take permits. For example, 

in Service Region 2, the Service has 

issued permits to take 28 golden eagles 

per year on average from 2002 – 2007 

under the various permit types that 

allow take (e.g., scientific collecting, 

depredation, Native American religious 

purposes, etc.). On average, 23 of the 

golden eagles were taken for Native 

American religious purposes. If next 

year, the demand from qualified Native 

Americans increases to 28, we will issue 

all the available take permits (28) to 

Native Americans—unless there is a 

need to take eagles to alleviate a safety 

emergency (to protect either eagles or 


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1By describing the standard (non-programmatic) 

permit as authorizing ‘‘individual’’ or ‘‘one-time’’ 

take, we do not mean to infer that only one eagle 

can be taken under a standard permit, or that if 

more than one eagle is taken, the take must occur 

simultaneously. We use the term, ‘‘one-time’’ for 

lack of a better word to refer to take is quantifiable 

and of a specified amount. 

people from physical harm or death), in 

accordance with the prioritization order. 

A wide variety of activities, including 

various types of development, resource 

extraction, and recreational activities 

near sensitive areas such as nesting, 

feeding, and roosting sites, can disrupt 

or interfere with the behavioral patterns 

of bald eagles. We developed National 

Bald Eagle Management Guidelines 

(NBEMG or Guidelines) as a tool for 

landowners, project proponents, and the 

general public engaged in activities in 

the vicinity of bald eagles. The NBEMG 

are available at http://www.fws.gov/ 

migratorybirds.baldeagle.htm. The 

NBEMG address potential negative 

effects of human activities on bald 

eagles, based on observed bald eagle 

behavior, and provide guidance on what 

types of activities are likely to cause 

bald eagle disturbance at varying 

distances to nests, communal roosts, 

and foraging areas, and how to avoid 

such disturbance. 

We intend to use the Draft U.S. Fish 

and Wildlife Service Raptor 

Conservation Measures (soon to be 

released for public notice and comment) 

as interim guidance for golden eagle 

disturbance, until species-specific 

guidance can be developed. When 

referring to both the NBEMG and the 

U.S. Fish and Wildlife Raptor 

Conservation Measures in this 

rulemaking document, we refer to both 

documents together as ‘‘guidelines’’ 

with a lower case ‘‘g.’’ 

By adhering to the guidelines, 

landowners and project proponents 

should be able to avoid eagle 

disturbance most of the time. If avoiding 

disturbance is not practicable, the 

project proponent may apply for a take 

permit. A permit is not required to 

conduct any particular activity, but is 

necessary to avoid potential liability for 

take caused by the activity. 

Disturbance may also result from 

human activity that occurs after the 

initial activities (e.g., residential 

occupancy or the use of commercial 

buildings, roads, piers, and boatlaunching ramps). In general, we do not 

intend to issue permits for routine 

activities such as hiking, driving, 

normal residential activities, and 

ongoing use of existing facilities, where 

take could occur but is unlikely. New 

uses or uses of significantly greater 

scope or intensity may raise the 

likelihood that eagles will be disturbed, 

and as such could require authorization 

for take under these regulations. 

To assess whether the Service’s 

predictions regarding the likelihood of 

disturbance are generally sound, and 

thereby ensure that permit requirements 

are not unnecessarily burdensome to the 

public and are adequately protecting 

eagles, we will require permittees to 

provide basic post-activity monitoring 

(described below) by determining 

whether the nest site, communal roost, 

or important foraging area continues to 

be used by eagles for up to three years 

following completion of the activity for 

which the permit was issued, depending 

on the form and magnitude of the 

anticipated take and the objectives of 

the associated conservation measures. 

Where an activity is covered by a 

management plan that establishes 

monitoring protocols (e.g., an airport 

Wildlife Hazard Management Plan), the 

permit may specify that monitoring 

shall be conducted according to the preexisting management plan. 

We will use reporting data, as well as 

supplemental data we collect from some 

permittees’ project areas, to ascertain 

how the activity actually affected the 

eagles in the area. With this 

information, we may be able to adjust 

take thresholds if take does not occur. 

The report data also will help us to 

assess how likely it is that future 

activities will result in loss of one or 

more eagles, a decrease in productivity 

of bald or golden eagles, and/or the 

permanent abandonment or loss of a 

nest site, communal roost site, or 

important foraging area. The outcome of 

disturbance permits, recorded in this 

way, may allow us to recalibrate the 

number of annual permits available in a 

Service Region, and to refine 

recommendations in future versions of 

the guidelines regarding buffer 

distances, timing of activities, and other 

practices that minimize take of eagles. 

Although the information we will ask 

permittees to provide is relatively 

basic—whether eagles are observed at 

the nest, roost site or foraging area—we 

realize that reporting will not always be 

accurate. In addition to errors, some 

permittees may (unjustifiably) be 

concerned about law enforcement and 

may under-report take without fully 

understanding that the take has been 

authorized by their permits and thus is 

not a violation of the law. Overall, 

however, we expect most permittees 

will make a good-faith effort to honestly 

report eagle use of the area, resulting in 

a substantial body of useful information 

we do not otherwise have the resources 

to collect. 

Along with annual report data, we 

will periodically assess overall 

population trends of both species of 

eagles, taking into consideration the 

cumulative effects of other activities 

that take eagles and eagle mortalities 

due to other factors. Based on the 

modeling we will use to set take 

thresholds, we do not expect population 

declines as the result of the 

authorizations granted through these 

regulations. However, it is also possible 

that external factors could arise that 

negatively affect eagle populations. 

Whatever the cause, in order to ensure 

that take is compatible with the 

preservation of the bald or golden eagle, 

we will not issue permits for take within 

a regional eagle population without 

sufficient data indicating the take will 

not result in a population decline. 

Programmatic permits. The June 2007 

proposed rule distinguished between 

lethal and non-lethal take (e.g., 

disturbance), and proposed that lethal 

take would be authorized only if it was 

unavoidable even when Best 

Management Practices (BMPs) were 

followed. We revised this concept to 

remove the distinction between lethal 

and non-lethal take, and replace it with 

a distinction between individual or 

‘‘one-time’’ 1 take versus programmatic 

take. A programmatic permit will be 

available to industries or agencies 

undertaking activities that may disturb 

or otherwise take eagles on an on-going 

operational basis. We are defining 

‘‘programmatic take’’ as ‘‘take that (1) is 

recurring, but not caused solely by 

indirect effects, and (2) occurs over the 

long term and/or in a location or 

locations that cannot be specifically 

identified.’’ The second criterion is the 

one that distinguishes programmatic 

take from any other take that has 

indirect effects that continue to cause 

take after the initial action. It is the key 

factor that makes programmatic take 

programmatic. 

We define ‘‘programmatic permit’’ as 

‘‘a permit that authorizes programmatic 

take. A programmatic permit can cover 

other take in addition to programmatic 

take.’’ We can issue programmatic 

permits for disturbance as well as take 

resulting in mortalities, based on 

implementation of ‘‘advanced 

conservation practices’’ developed in 

coordination with the Service. 

‘‘Advanced conservation practices’’ 

(ACPs) refers to scientificallysupportable measures that are approved 

by the Service and represent the bestavailable techniques to reduce eagle 

disturbance and/or ongoing mortalities 

to a level where remaining take is 

unavoidable. The Federal Highway 

Administration is an example of an 

agency for which this streamlined 


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approach may benefit the agency and 

eagles. A programmatic take permit may 

be appropriate for industries such as the 

energy and transportation providers, 

among others, if they elect to work with 

the Service to develop ACPs. The ACPs 

and plan specifications will then 

become permit conditions, along with 

monitoring and reporting requirements 

more comprehensive than those for 

individual take permits. Programmatic 

permits are designed to provide a net 

benefit to eagles by reducing ongoing 

unauthorized take. Accordingly, 

programmatic permit conditions will be 

designed to provide ongoing long-term 

benefits to eagles. Recipients of 

programmatic permits must perform 

more rigorous monitoring than is 

required for standard, individual take 

permits. 

Because the requirements for 

obtaining programmatic take 

authorization are designed to reduce 

take, the take authorized by 

programmatic permits for ongoing 

activities will not be subtracted from 

regional thresholds, nor would they be 

subject to the prioritization criteria. The 

reductions in take that result from 

implementation of new measures to 

reduce take from ongoing activities 

under programmatic permits may allow 

the Service to increase take thresholds 

and make additional permits available 

for other activities likely to result in 

take. 

Applicants for programmatic permits 

for new activities will be subject to the 

same rigorous standards and may also 

be required to apply conservation 

measures at other sites (possibly owned 

or operated by a third party) where 

eagles are taken by existing operations. 

The purpose of the off-site measures 

would be to reduce take to a level that 

offsets some or all of the new take from 

the applicant’s activity. The degree to 

which the applicant would be required 

to offset the take will depend on the 

status of eagle populations in the region; 

if populations of the particular eagle 

species are robust, the Service may not 

require any off-site reductions in take. 

However, if regional populations cannot 

absorb significant new take, the Service 

may require the project proponent to 

completely offset the effects of the new 

activity with reductions in take 

elsewhere. 

To encourage potential applicants to 

seek programmatic permits (versus 

standard permits), the regulations 

contain issuance criteria that give 

priority to those seeking renewal of 

programmatic permits. These criteria 

will provide programmatic permittees 

with some assurance (though never an 

absolute guarantee) that previously 

authorized levels of take from on-going 

operations will continue to be 

authorized in the future. Programmatic 

permit renewals will have third priority, 

after (1) safety emergencies, and (2) take 

necessary to meet Native American 

religious needs, but before (4) nonemergency public health and safety. 

A programmatic permit is optional. 

Entities that engage in programmatic 

take and who wish to obtain 

authorization for the take can choose 

whether to apply for the programmatic 

take permit or apply for standard 

permits for individual takes. One 

advantage of opting for the 

programmatic permit is it would remove 

liability comprehensively. It also lessens 

concern about whether additional take 

can be authorized under take thresholds 

in the future. The disadvantage is that 

the process of working with the Service 

to develop the permit conditions is 

likely to be time-consuming and more 

expensive than seeking a standard 

permit. Also, implementation of the 

ACPs will in most cases require 

substantial resources. In the long term, 

however, depending on the scale of an 

applicant’s operations, programmatic 

permits should be the most economical 

approach for authorizing long-term or 

wide-ranging take of eagles. 

A programmatic permit is not 

available where the only long-term take 

is due to indirect effects from an initial 

action. Programmatic take is the direct 

result of ongoing operations. The 

following are examples of programmatic 

take: 

1. A railroad that routinely strikes 

eagles feeding on carcasses on the 

tracks. 

2. Utilities that kill eagles through 

collisions and electrocutions from 

contact with power lines. 

3. Ongoing disturbance at a port due 

to vessel traffic and/or other port 

operations. 

4. Construction and maintenance of 

highways throughout a State or other 

jurisdiction that routinely disturbs 

eagles. 

5. Airports that periodically (but 

immediately upon discovery) need to 

remove eagle nests to protect human 

and eagle safety. 

Below are examples of what is not 

programmatic take: 

1. Construction of a boat ramp, with 

or without long-term indirect effects 

that take eagles (boat traffic). 

2. Construction of a port when eagles 

are disturbed by pile driving and other 

construction activities. 

3. Construction of a single highway, 

or multiple highways, where eagle take 

can be projected to occur at particular 

locations and during specific project 

phases. 

Although we define ‘‘programmatic 

take’’ as take that results from an 

activity and not from the activity’s 

indirect effects, many activities that 

result in programmatic take will also 

have adverse indirect effects on eagles. 

Therefore, most programmatic permits 

will authorize other take in addition to 

the programmatic take, to cover the 

indirect effects. The Service will 

consider indirect effects of activities 

under both types of permits, first when 

deciding whether to issue the permit, 

and again when establishing 

conservation measures. Because 

programmatic permits are designed to 

reduce take to the level where it is 

unavoidable, if there are ACPs that will 

reduce take caused by indirect effects, 

those ACPS will be required conditions 

of the programmatic permit. 

As further illustration of the 

differences between programmatic and 

standard permits, and the need to 

consider indirect effects under both, the 

following are two distinct activities that 

each directly take eagles and also have 

indirect effects that continue to take 

eagles; however, only one 

programmatically takes eagles and can 

be covered with a programmatic take 

permit. 

First, a large housing development 

provides buffers around each nest on 

the property as recommended by the 

Service to avoid disturbing eagles. 

However, due to various constraints, the 

developer is unable to avoid impacts to 

the eagles’ prey base, resulting in take 

of eagles in the form of lost productivity 

or abandonment of nesting territories. In 

this case, the construction of the 

development is not ongoing. What 

continues are the indirect effects of 

depriving eagles of their prey base. 

Therefore, the take caused by the 

housing development is not 

programmatic take, and to be 

authorized, would have to be covered 

under a standard permit. 

Our second example is a company 

interested in siting a wind-power 

facility. We are currently unaware of 

any measures that would eliminate 

eagle mortalities when turbines are sited 

in golden eagle habitat (including 

migration corridors). If ACPs can be 

developed to significantly reduce the 

take, the operator may qualify for a 

programmatic take permit, since the 

ongoing mortalities are the direct result 

of the operation of the turbines. In 

addition to measures designed to reduce 

take directly, ACPs should also include 

measures to reduce indirect effects that 

contribute to the level of take, such as 

ensuring the project site does not 


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Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations 46843 

provide enhanced habitat for small 

mammals that eagles feed on, which 

would attract eagles to the area and 

increase the likelihood of collision with 

turbines. 

Permit application process. Permits 

are available to Federal, State, 

municipal, or tribal governments; 

corporations and businesses; 

associations; and private individuals, all 

of which are subject to the prohibitions 

of the Eagle Act. Persons and 

organizations that obtain licenses, 

permits, grants, or other such services 

from government agencies are 

responsible for their own compliance 

with the Eagle Act and should 

individually seek permits for their 

actions that may take eagles. 

Government agencies must obtain 

permits for take that would result from 

agency actions that are implemented by 

the agency itself (including staff and 

contractors responsible for carrying out 

those actions on behalf of the agency). 

The final regulations do not specify 

what information an applicant must 

submit to apply for an eagle take permit 

or to file an annual report, other than 

that he or she must submit a complete 

application form, including any 

required attachments to apply for a 

permit, and for annual reporting, the 

permittee must submit all the 

information required on the report form. 

By avoiding codification of application 

and reporting requirements, we can 

revise application and reporting 

requirements without undergoing the 

time-consuming rulemaking process. 

However, the public will have the 

opportunity to provide input on the 

content of these forms. All forms must 

be approved by the President’s Office of 

Management and Budget (OMB) every 

three years, and as part of that process, 

all new forms and all changes to forms 

are subject to public review via a series 

of notices in the Federal Register. The 

forms we will use when this rule takes 

effect were subject to the OMB and 

public review process while this rule 

was being developed. 

The new Service permit application 

Form 3-200-71 requires the following 

information from the applicant as part 

of the application process (in addition 

to the requirements of § 13.12(a) of this 

subchapter, which apply to all types of 

permits issued by the Service): 

1. A detailed description of the 

activity that will cause the disturbance 

or other take of eagles; 

2. The species and number of eagles 

that will be taken and the likely form of 

that take; 

3. Maps and digital photographs that 

depict the locations of the proposed 

activity, including the area where eagles 

are likely to be taken; 

4. For activities that are likely to 

disturb eagles (versus other take), 

a. Maps and digital photographs of the 

eagle nests, foraging areas, and 

concentration sites where eagles are 

likely to be disturbed by the proposed 

activity (including the geographic 

coordinates of the activity area and 

important eagle-use area(s) and the 

distance(s) between those areas); 

b. Whether or not the important eagleuse area(s) is visible from the activity 

area, or if screening vegetation or 

topography blocks the view; and 

c. The nature and extent of existing 

activities in the vicinity that are similar 

to the proposed activity, and the 

distance between those activities and 

the important eagle-use area(s); 

5. The date the activity will start and 

is projected to end; 

6. An explanation of what interests(s) 

in a particular locality will be protected 

by the take, including any anticipated 

benefits to the applicant or to the 

public; 

7. An explanation of why avoiding the 

take is not practicable, including at a 

minimum, a description of why take 

cannot be avoided after taking into 

consideration, relative to the magnitude 

of the impacts to eagles, (1) the cost of 

the remedy comparative with proponent 

resources; (2) existing technology; and 

(3) logistics in light of overall project 

purposes; or 

8. For programmatic take, why take is 

unavoidable; and 

9. A description of measures proposed 

to offset the detrimental impact of the 

proposed activity on the regional eagle 

population. 

The Service’s Ecological Services 

Field Offices may provide technical 

assistance prior to development of 

permit applications. In many cases, the 

Service may be able to recommend 

measures to reduce the likelihood of 

take, negating the need for a permit. The 

technical assistance that we provide 

from the field will reduce the number of 

applications to our permit offices for 

activities that (1) are unlikely to take 

eagles, or (2) can practicably be 

modified to avoid the take. The Service 

may elect to conduct an on-site 

assessment to determine whether the 

proposed activity is likely to take eagles 

and whether reasonable modifications 

to the project will alleviate the 

probability of take. In addition, State 

and tribal natural resources agencies 

may also be able to provide information 

pertaining to the number and location of 

eagles, eagle nests and other important 

eagle-use areas within the area 

potentially affected by the activity. 

Application Evaluation Process. An 

initial consideration is whether take is 

likely to occur. Ideally, most potential 

applicants whose activities will not 

likely result in take will be dissuaded 

from applying for a permit after 

voluntary technical consultation with a 

Service field biologist. If, after an 

application is submitted, the Service 

determines that take is not likely to 

occur, we may issue the permit (if 

permit issuance criteria are met); 

however, if we do not consider take 

likely to occur, we will not subtract the 

authorized take from Regional take 

thresholds—unless follow-up 

monitoring reveals that it did actually 

occur. 

Our primary consideration when 

issuing permits under this regulation is 

whether the take would be compatible 

with the preservation of the bald eagle 

and the golden eagle, including 

consideration of the cumulative effects 

of other permitted take and additional 

factors affecting eagle populations. 

When evaluating the take that may 

result from an activity for which a 

permit is sought (e.g., residential 

development), we will consider the 

effects of the preliminary activity 

(construction) as well as the effects of 

the foreseeable ongoing future uses 

(activities associated with human 

habitation). The impacts and threshold 

distances that we will consider will not 

be limited to the footprint of the initial 

activity if it is reasonably foreseeable 

that the activity will lead to adverse 

indirect effects on eagles. For example, 

when evaluating the effects of 

expanding a campground, in addition to 

considering the distance of the 

expansion from important eagle-use 

areas, we would consider the effects of 

increased pedestrian and motor traffic to 

and from the expanded campground. In 

many cases, the potential for take could 

be greater as a result of the activities 

that follow the initial project. For 

example, the installation of a boat ramp 

500 feet from an important eagle 

foraging area may not disturb eagles 

during the construction phase, but the 

ensuing high levels of boat traffic 

through the area during peak feeding 

times may cause disturbance. Trail 

construction 400 feet from a nest is 

generally unlikely to take eagles, but if 

the trail will be open to off-road vehicle 

use during the nesting season, we would 

need to consider the impacts of the 

vehicular activity as part of the impacts 

of the trail construction. 

If demand will exceed regional take 

thresholds (see above discussion under 

Population Assessment and Take 

Thresholds), the permit office will need 

to evaluate how the proposed activity 


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should be prioritized in accordance 

with the Regional structured allocation 

process established to ensure the 

Service adheres to the prioritization 

issuance criteria set forth in § 22.26(e) 

and § 22.27(d)(5) of the regulations. 

We must then consider whether the 

take is associated with the permanent 

abandonment or loss of a nest site, 

territory, or other important eagle-use 

area. In reality, this evaluation would be 

tied to our primary consideration of 

whether the take would be compatible 

with the preservation of the bald eagle 

or the golden eagle because take 

associated with the loss of an important 

eagle-use area will generally have larger 

population impacts than a single, onetime disturbance. Depending on the 

magnitude of the impacts, the potential 

take could exceed the thresholds we 

establish as necessary to safeguard eagle 

populations. If so, we must deny the 

permit unless the applicant commits to 

compensatory mitigation measures that 

would offset the take to the level where 

it is compatible with the preservation of 

eagles. 

Additional evaluation criteria include 

whether: (1) the take is necessary to 

protect a legitimate interest in a 

particular locality; (2) the take is 

associated with, but is not the purpose 

of the activity; (3) the take cannot 

practicably be avoided (or for 

programmatic authorizations, the take is 

unavoidable); and (4) the applicant has 

minimized impacts to eagles to the 

extent practicable, and for programmatic 

authorizations, the taking will occur 

despite application of Advanced 

Conservation Practices developed in 

coordination with the Service. 

Before issuing a permit, we will 

consult with federally-recognized tribes 

if issuance of the permit might affect 

traditional tribal activities, practices, or 

beliefs. The Service’s obligation to 

consult on a government-to-government 

basis with Native American tribes is set 

forth in Executive Order 13175, 

Consultation with Indian Tribal 

Governments (Nov. 6, 2000) and the 

Service’s own ‘‘Native American 

Policy’’ (http://www.fws.gov/ 

nativeamerican/Graphics/ 

Native_Amer_Policy.pdf). The areas 

where eagles would be taken have the 

potential of being regarded as areas of 

traditional religious and cultural 

importance to Indian tribes, commonly 

referred to as Traditional Cultural 

Properties (TCP). Eagles are highly 

significant species for Native American 

culture and religion, and as such they 

might be viewed as contributing 

elements to a TCP. Take of one or more 

eagles from a TCP area could potentially 

be considered an adverse effect to the 

TCP. Eagles also have cultural 

significance to the wider American 

public, with the result that the Service 

will need to consider the concerns of 

any party with cultural interest in 

eagles, eagle nests, and eagle habitat 

under Section 106 of the National 

Historic Preservation Act (NHPA) (16 

U.S.C. 470). (For more discussion on the 

NHPA, see our discussion in the 

Required Determinations section below 

under National Historic Preservation 

Act.) 

Permit Conditions. Under the Service 

Mitigation Policy (46 Fed. Reg. 7644- 

7663, January 23, 1981) and the 

President’s Council on Environmental 

Quality regulations (40 CFR Part 

1508.20 (a-e)), mitigation includes: 

avoidance, minimization, rectification, 

reduction over time, and compensation 

for negative impacts, in this case to bald 

eagles and golden eagles. Under these 

regulations, all permittees will be 

required to avoid and minimize the 

potential for take to the degree 

practicable, and for programmatic 

permits, to the point where take is 

unavoidable. 

Depending on the scale of the take, 

and the particular circumstances, the 

Service may require rectification (taking 

corrective action) and/or reduction over 

time from some permittees. However 

additional compensatory mitigation will 

be required only (1) for programmatic 

take and other multiple take 

authorizations; (2) for disturbance 

associated with the permanent loss of a 

breeding territory or important 

traditional communal roost site; or (3) as 

necessary to offset impacts to the local 

area population. Because our take 

permit thresholds are population-based, 

we have already determined before 

issuing each individual take permit that 

the population can withstand that level 

of take. Therefore, compensatory 

mitigation for one-time, individual take 

permits will not typically be necessary 

for the preservation of eagles. This 

approach is based on our analysis of 

regional population thresholds, and 

does not preclude a State or tribe from 

requiring additional mitigation for 

impacts authorized by a State or tribal 

permit or authorization within its 

jurisdiction. However, we intend to 

work with States and tribes to ensure 

that the total mitigation required of 

applicants by the Service and the State 

and/or tribe does not exceed what is 

appropriate to offset impacts to eagles 

from the proposed activity. 

These regulations contain general 

conditions that will apply to all permits 

we issue under this section. If the 

permit expires or is suspended or 

revoked before the required measures 

are completed, the permittee will 

remain obligated to carry out those 

measures necessary to mitigate for take 

that has occurred up to that point. 

Permittees must allow Service 

personnel, or other qualified persons 

designated by the Service, access to the 

areas where take is anticipated, within 

reasonable hours and with reasonable 

notice from the Service, for purposes of 

monitoring eagles at the site(s). 

Although we do not anticipate the 

necessity for ongoing monitoring by the 

Service at the majority of permit 

locations, we will use the data collected 

from limited site visits to reevaluate, as 

appropriate, the recommendations we 

provide in the guidelines as well as 

through case-by-case technical 

assistance to ensure that eagles are 

adequately protected without 

unnecessarily hindering human activity. 

If a permit is revoked or expires, the 

permittee must submit a report of 

activities conducted under the permit to 

the Service’s Regional Migratory Bird 

Permit Office within 60 days of the 

revocation or expiration. The permit 

provides take authorization only for the 

activities set forth in the permit 

conditions. If the permittee 

subsequently contemplates different or 

additional activities that may take 

eagles, he or she must contact the 

Service to determine if a permit 

amendment is required to retain the 

level of take authority desired. 

Additionally, the validity of all permits 

issued under these regulations is 

conditioned on the permittee’s 

compliance with all applicable Federal, 

tribal, State, and local laws and 

regulations governing the activity. Thus, 

if conduct of the activity violates State, 

tribal, or other laws, the Federal 

authorization granted by this permit is 

invalid. 

We are defining one term in § 22.26 

that will apply only to the regulations 

in that section and not to eagle permits, 

generally. ‘‘Eagle’’ under § 22.26 means 

‘‘a live bald eagle (Haliaeetus 

leucocephalus), live golden eagle 

(Aquila chrysaetos), a bald eagle egg, or 

a golden eagle egg.’’ Eagle take under 

§ 22.26 is limited to live birds and eggs, 

and excludes non-living specimens, 

feathers, parts, and nests. 

We are in the process of developing 

implementation guidance to address 

procedural aspects of the permitting 

process. The guidance will cover time 

frames for permit issuance; 

identification of project impacts; 

appropriate mitigation measures; 

monitoring; coordination with States, 

tribes, and other Federal agencies; 

compliance with environmental 

reviews; and other specifics of the 


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permit process, in order to ensure 

consistency in implementation 

throughout the Service. We will work 

with interested States and tribes in 

developing the implementation 

guidance, and the general public will 

also have the opportunity to provide 

input once we make a draft available 

through a notice in the Federal Register. 

Eagle Nest Take Under 50 CFR 22.27 

Some eagles nest on or near electrical 

transmission towers, communication 

towers, airport runways, or other 

locations where they endanger 

themselves or create a hazard to 

humans. Regulations under this section, 

§ 22.27, authorize removal and/or 

relocation of active and inactive eagle 

nests in what we expect to be the rare 

cases where genuine safety concerns 

necessitate the take. Examples include: 

(1) a nest tree that appears likely to 

topple onto a residence; (2) at airports 

to avoid collisions between eagles and 

aircraft; and (3) to relocate a nest built 

within a reservoir that will be flooded. 

Compensatory mitigation will 

sometimes but not always be required 

when nests must be removed for safety 

emergency purposes. 

This permit will also be available to 

take inactive nests only, in three 

additional types of situations. First, we 

may issue a permit to remove an 

inactive eagle nest where, although the 

presence of the nest does not create an 

immediate safety emergency, the take is 

necessary to ensure public health and 

safety. For purposes of this regulation, 

‘‘necessary to ensure public health and 

safety’’ means ‘‘required to maintain 

society’s well-being in matters of health 

and safety.’’ For example, if the take 

would be compatible with the 

preservation of the eagle, and there is no 

practicable alternative to nest removal, 

a permit could be issued under this 

section to remove an inactive eagle nest 

located in the only feasible site for a 

hospital that is needed in a particular 

locality. 

Second, a permit may be issued to 

take an inactive nest that is built on a 

human-engineered structure and creates 

a functional hazard that renders the 

structure inoperable for its intended 

use. For example, recently in Alaska, a 

pair of bald eagles nested on a crane that 

was temporarily not being used by the 

crane operator. Under these regulations, 

after waiting out the eagles’ breeding 

cycle, the crane operator could be 

issued a permit to remove the inactive 

nest and reclaim the use of his crane. 

Finally, the nest could be removed for 

an activity that will provide a net 

benefit to eagles, or for any purpose if 

the permittee conducts or secures 

mitigation measures that more than 

offset the impacts of removing the nest, 

creating a net benefit to eagles. For 

example, we may issue a permit to take 

a nest where necessary to carry out a 

habitat restoration project that will 

enhance habitat for eagles. Also, a 

homeowner could potentially obtain a 

permit to remove one of multiple nests 

in a territory, one which has not been 

used for several years, if compensatory 

mitigation measures will produce a net 

benefit to eagles (e.g., the landowner 

donates a permanent conservation 

easement to protect the riparian area 

where the nesting pair and wintering 

eagles traditionally forage). The scale of 

mitigation will depend on the degree of 

biological impact. To remove a nest 

from what is apparently the only viable 

nest site in a territory would have a 

greater biological impact than in the 

example just provided, and more 

mitigation might be necessary in order 

to realize a net benefit to eagles. 

Where the nest would be taken for 

purposes other than to alleviate an 

immediate threat to safety, two 

additional criteria must be met before 

we may issue the permit. First, we may 

not issue the permit unless alternative 

suitable nesting and foraging habitat is 

available. Second, compensatory 

mitigation is required in every case. 

Except for applications associated 

with safety emergencies, prior to 

authorizing nest removal, we will 

review the availability of potential 

alternative suitable habitat (nest 

substrate, foraging areas, etc.) and the 

distance to those areas, in order to 

reasonably assess the likelihood of total 

loss of the territory. When known, we 

will consider such factors as the number 

of nests in a particular breeding pair’s 

nesting territory and the last known date 

when the nest under consideration for 

take was used, in order to try to assess 

the relative value of the nest to the 

breeding pair. We will also consider the 

density of surrounding territories and 

the nests within those territories to 

evaluate the ability of the area to 

support a displaced pair and assess 

whether the loss of a particular nest may 

have negative local population impacts. 

For overall permit management, we will 

consider local-area population effects 

within the species-specific natal 

dispersal distances (43 miles for bald 

eagles, 140 miles for golden eagles). 

However, we believe it would be too 

burdensome to ask the proponent to 

provide data on that large a scale. We 

have found, in implementing the 

resource-recovery permit for take of 

inactive golden eagle nests (50 CFR 

22.25), that data within a 10-mile radius 

of the nest provides us with adequate 

information to evaluate many of the 

factors noted above. 

Where practicable, nests should be 

relocated, or a substitute nest provided, 

in a suitable location within the same 

territory from which they were removed 

to provide a viable nesting site for 

breeding purposes of eagles within that 

territory, unless such relocation would 

create a similar threat to safety. Permits 

may also be issued to remove nests 

when it is determined by the Service 

that the nests cannot be relocated. 

We may issue programmatic nest take 

permits under this section if the 

permittee commits to comprehensive 

measures (ACPs) to reduce the need for 

take. For example, programmatic 

authorization could be an appropriate 

means of authorizing take at airports 

that, despite scientifically-based 

measures developed in coordination 

with the Service to reduce take, cannot 

completely avoid some take in the form 

of disturbance and emergency nest 

removal (when nests are discovered 

despite diligent efforts to prevent eagles 

from occupying the area). Authorizing 

programmatic nest take, where such 

comprehensive measures are being 

taken by airports to reduce take, will 

help to minimize ‘‘last minute’’ nest 

removal emergencies, thus providing 

better protection from liability for the 

airports and enhanced protection of 

eagles. 

We envision that there will be a need 

for permits that combine the two types 

of authorizations we are creating 

through this regulation (§ 22.26 and 

§ 22.27), and perhaps additional 

authorizations as well. In such cases, we 

will usually issue one permit with dual 

(or multiple) authorizations. For 

example, to ensure safety at airfields, we 

would evaluate the airfield’s wildlife 

hazard management plan to determine if 

it uses a progressive approach that starts 

with measures to reduce the presence of 

features attractive to eagles and ends 

with nest removal as a final option. If 

the management-plan components are 

adequate for protection of eagles, they 

would then become part of the permit 

conditions. The programmatic permit 

will not require re-application each 

year, but may be valid for up to 5 years, 

at which time the applicant could 

submit a request for renewal. There are 

annual reporting requirements and an 

option for the Service to re-evaluate the 

permit conditions if more take is 

occurring than anticipated. A permit 

such as described would be issued 

under the multiple authorities of 

existing § 22.23 (as revised by this 

rulemaking to extend permit tenure), 

new § 22.26, and new § 22.27. 


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As with other eagle take permits, nest 

take permits issued under § 22.27 will 

be subject to the take thresholds 

discussed earlier and more fully in the 

final environmental assessment of this 

action. 

Similar to our approach to § 22.26 

and some other recent Service 

regulations, we have not codified the 

application requirements within the 

regulation so we can more easily modify 

them based on new information and 

public input gathered through the 

triennial OMB information collection 

process (see above discussion under § 

22.26, Permit Application Process). The 

current application form we will use for 

this regulation requires applicants to 

submit the following information: 

(1) The number of nests proposed to 

be taken, whether the nest(s) is a bald 

eagle or golden eagle nest, and whether 

the nest(s) is active or inactive; and if 

known, whether it has been active in the 

5 preceding breeding seasons. 

(2) Why the removal of the nest(s) is 

necessary, including the interest to be 

served in a particular locality; 

(3) A description of the property, 

including maps and digital photographs 

that show the location of the nest in 

relation to buildings, infrastructure, and 

human activities; 

(4) The location of the property, 

including latitude and longitude; 

(5) The length of time for which the 

permit is requested, including beginning 

and ending dates; 

(6) A statement indicating the 

intended disposition of the nest(s), and 

if active, the nestlings or eggs; 

(7) A calculation of the bald eagle or 

golden eagle area nesting population, 

including an appropriately-scaled map 

or plat showing the location of each 

eagle nest used to calculate the area 

nesting population unless the Service 

has sufficient data to independently 

calculate the area nesting population. 

(Not applicable for immediate safety 

emergencies.) 

(8) A description of the avoidance, 

minimization, and mitigation measures 

the applicant proposes to reduce take 

and offset the detrimental impact of the 

permitted activity. (Not applicable for 

immediate safety emergencies.) 

Even though the application form 

does not require applicants to describe 

proposed mitigation measures in cases 

of safety emergencies, we may require 

compensatory mitigation as a permit 

condition if appropriate to offset the 

detrimental impacts to eagles. 

New and Modified Definitions Under 50 

CFR 22.3 

These regulations revise three 

definitions and codify 13 new terms in 

§ 22.3, the section of eagle permit 

regulations that defines terms and is 

applicable to all eagle permit 

regulations in part 22. We amend the 

regulatory definition of ‘‘take,’’ to add 

the term ‘‘destroy,’’ to apply to bald 

eagle nests, to ensure consistency with 

the Eagle Act’s intention to prohibit 

unpermitted eagle nest destruction. We 

define ‘‘eagle nest’’ as a ‘‘readily 

identifiable structure built, maintained, 

or used by bald eagles or golden eagles 

for breeding purposes.’’ This definition 

is based on, and replaces, the existing 

‘‘golden eagle nest’’ definition, in order 

to apply with respect to both species. 

We are removing the existing definition 

of ‘‘golden eagle nest’’ from the list of 

definitions. 

Similarly, this rule replaces the old 

definition ‘‘inactive nest’’ with a new 

definition that differs primarily insofar 

as it includes bald eagles as well as 

golden eagles. The new definition reads: 

‘‘a bald eagle or golden eagle nest that 

is not currently being used by eagles as 

determined by the continuing absence 

of any adult, egg, or dependent young at 

the nest for at least 10 consecutive days 

immediately prior to, and including, at 

present. An inactive nest may become 

active again and remains protected 

under the Eagle Act.’’ All nests are 

protected by the Eagle Act, whether 

active or inactive, and the take of any 

nest requires a permit. The reason for 

distinguishing between active nests and 

inactive nests and for defining the term 

‘‘inactive nest’’ is because the new nesttake-permit regulation, as well as 

existing regulations for take of golden 

eagle nests for resource development 

and recovery operations (50 CFR 22.25), 

regulate nests differently depending on 

whether they are currently active or 

inactive. Under existing § 22.25, a 

permit may be issued only for inactive 

nests. Under the regulations being 

finalized by this rulemaking, a permit 

can be issued for an active nest only if 

the location of the nest poses an 

immediate threat to safety. This 

definition is intended to be applied only 

to questions of whether or not a nest 

may be taken with reduced risk of 

associated take of birds. It is not 

intended to convey any other biological 

status, nor will it be the only criterion 

for permit evaluation. 

We are codifying the term ‘‘important 

eagle-use area’’ in these permit 

regulations under § 22.26 to refer to 

nests, biologically important foraging 

areas, and communal roosts where 

eagles are potentially likely to be taken 

as the result of interference with 

breeding, feeding, or sheltering 

behaviors. We define ‘‘important eagleuse area’’ as ‘‘an eagle nest, foraging 

area, or communal roost site that eagles 

rely on for breeding, sheltering, or 

feeding, and the landscape features 

surrounding such nest, foraging area, or 

roost site that are essential for the 

continued viability of the site for 

breeding, feeding, or sheltering eagles.’’ 

This term refers to the particular areas, 

within a broader area where human 

activity occurs, where eagles are more 

likely to be taken (e.g., disturbed) by the 

activity because of the higher 

probability of interference with 

breeding, feeding, or sheltering 

behaviors at those areas. 

To clarify terms used within the 

definition of ‘‘important eagle-use area,’’ 

we define ‘‘foraging area’’ to mean ‘‘an 

area where eagles regularly feed during 

one or more seasons.’’ We define 

‘‘communal roost site’’ as ‘‘an area 

where eagles gather repeatedly in the 

course of a season and shelter overnight 

and sometimes during the day in the 

event of inclement weather.’’ Not all 

foraging areas and communal roost sites 

are important enough such that 

interfering with eagles at the site will 

cause disturbance (resulting in injury or 

nest abandonment). Whether eagles rely 

on a particular foraging area or 

communal roost site to that degree will 

depend on a variety of circumstances— 

most obviously, the availability of 

alternate, suitable sites for feeding or 

sheltering. 

‘‘Territory’’ is defined as ‘‘a defended 

area that contains, or historically 

contained, one or more nests within the 

home range of a mated pair of eagles.’’ 

‘‘Cumulative effects’’ means ‘‘the 

incremental environmental impact or 

effect of the proposed action, together 

with impacts of past, present, and 

reasonably foreseeable future actions.’’ 

We define ‘‘indirect effects’’ as ‘‘effects 

for which a proposed action is a cause, 

and which may occur later in time and/ 

or be physically manifested beyond the 

initial impacts of the action, but are still 

reasonably likely to occur.’’ 

The regulations include the 

requirement that an applicant have 

avoided and minimized impacts to 

eagles to the maximum extent 

practicable. ‘‘Practicable’’ is defined as 

‘‘capable of being done after taking into 

consideration, relative to the magnitude 

of the impacts to eagles (1) the cost of 

remedy comparative with proponent 

resources; (2) existing technology; and 

(3) logistics in light of overall project 

purposes.’’ For programmatic permits, 

the comparable standard is ‘‘maximum 

degree achievable,’’ defined as ‘‘the 

standard at which any take that occurs 

is unavoidable despite implementation 

of Advanced Conservation Practices.’’ 


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2The notable exception is the permit-applicationprocessing fee for take of golden eagle nests for 

resource recovery and development operations 

under 50 CFR 22.25, which is currently set at $100. 

We intend to propose a regulation in the near future 

to raise the processing fee to a level commensurate 

with the processing fees for the new § 22.27 nest 

take permit. 

‘‘Necessary to ensure public health 

and safety’’ is one criterion for obtaining 

a nest removal permit, and it is a 

criterion for prioritization in the 

regulations for both new permit types if 

demand exceeds take thresholds. We 

define it as ‘‘required to maintain 

society’s well-being in matters of health 

and safety.’’ ‘‘Safety emergency’’ means 

‘‘a situation that necessitates immediate 

action to alleviate a threat of bodily 

harm to humans or eagles.’’ Safety 

emergencies take precedence over take 

that is merely necessary to ensure 

public health and safety (as does take 

necessary for Native American religious 

use and renewal of programmatic 

permits). We may issue a permit to 

remove an active eagle nest in a safety 

emergency, but not for any other 

purpose. 

We are defining ‘‘programmatic take’’ 

as ‘‘take that (1) is recurring, but not 

caused by indirect effects (2) occurs 

over the long term and/or in a location 

or locations that cannot be specifically 

identified.’’ We define ‘‘programmatic 

permit’’ as ‘‘a permit that authorizes 

programmatic take.’’ A programmatic 

permit can cover other take in addition 

to programmatic take. We can issue 

programmatic permits for disturbance 

and as well as take resulting in 

mortalities, based on implementation of 

‘‘advanced conservation practices’’ 

developed in coordination with the 

Service. ‘‘Advanced Conservation 

Practices’’ means ‘‘scientificallysupportable measures that are approved 

by the Service and represent the bestavailable techniques to reduce eagle 

disturbance and ongoing mortalities to a 

level where remaining take is 

unavoidable.’’ 

Since § 22.26 does not apply to nests 

or non-living eagle parts, with regard to 

that section, we define ‘‘eagle’’ to mean 

only live eagles or eggs. This definition 

does not apply within any regulations 

other than § 22.26. 

Revisions to Permit Regulations at 50 

CFR 22.28 

On May 20, 2008, the Service 

published regulations creating a new 

permit category at 50 CFR § 22.28 to 

provide expedited Eagle Act permits to 

entities authorized to take bald eagles 

through ESA section 7 incidental take 

statements (73 FR 29075, May 20, 2008). 

That new permit category applies to 

past section 7 take statements as well as 

any that may have been issued after the 

rule took effect. (e.g., for take of Sonoran 

Desert nesting bald eagles, or if bald 

eagles or golden eagles were ESA-listed 

in any other portion of their respective 

ranges). Now that a permit is available 

to authorize eagle take not associated 

with an ESA take authorization, for 

purposes of accountability and 

consistency, the same process and 

procedures should be used to authorize 

take under the Eagle Act regardless of 

whether it was also exempted under 

ESA section 7. Accordingly, as part of 

the regulations we are promulgating 

today, we are amending the regulations 

at § 22.28 to restrict their application to 

section 7 incidental take statements 

issued prior to the date today’s rule 

becomes effective. For any incidental 

take exempted under ESA section 7 that 

is authorized after the date specified in 

DATES and that also constitutes take 

under the Eagle Act, the only permit 

that is available to provide Eagle Act 

take authorization is the § 22.26 permit 

being finalized herein. Therefore, except 

for take authorized through ESA section 

10 permits (which confer authority to 

take under both the ESA and the Eagle 

Act under the new provision at 50 CFR 

§ 22.11), any take we authorize that is 

associated with, but not the purpose of 

an activity, would be provided under 

the single regulatory authority we are 

finalizing today, 50 CFR § 22.26, rather 

than 50 CFR § 22.28. 

Revisions to Information Collection 

Requirements at 50 CFR 22.4 

This section describes the 

requirement that Federal information 

collections, such as permit applications 

and report forms related to Federal 

permits, be reviewed and approved by 

the OMB. It also provides the approval 

number(s) (OMB Control Numbers) for 

the forms used to collect information 

related to eagle permits. We are 

removing the language describing the 

average reporting burden for all the 

collections related to eagle permits 

because that figure varies as new forms 

are added or removed and we are no 

longer required to provide this estimate. 

Revisions to General Permit Conditions 

at 50 CFR 13 

As part of establishing the new permit 

authorizations under 50 CFR 22.26 and 

22.27, we amend 50 CFR 13.12 to add 

the new permit types to be issued under 

50 CFR 22.26 and 22.27. We also amend 

50 CFR 13.11(d), the nonstandard fee 

schedule, to establish applicationprocessing fees (user fees) for the 

permits. The general statutory authority 

to charge fees for processing 

applications for permits and certificates 

is found in 31 U.S.C. 9701, which states 

that services provided by Federal 

agencies are to be ‘‘self-sustaining to the 

extent possible.’’ Federal user-fee 

policy, as stated in OMB Circular No. A25, requires Federal agencies to recoup 

the costs of ‘‘special services’’ that 

provide benefits to identifiable 

recipients. Permits are special services 

authorizing identifiable recipients to 

engage in activities not otherwise 

authorized for the general public. 

For the standard § 22.26 take permit 

and the § 22.27 nest take permit, we 

will assess a $500 permit application fee 

and a $150 permit amendment fee. For 

programmatic permits under either 

permit type, the application fee is 

$1,000 and the amendment fee is $500. 

While higher than many other Service 

permit application processing fees, 

these fees are comparable to those 

assessed for other migratory bird 

permits relative to the level of review 

necessary to process and evaluate an 

application for a permit to take eagles or 

to remove eagle nests under the 

authorities of the Eagle Act. 2

Furthermore, we expect these fees to 

make up less than half the permitprocessing costs to the Service. 

The typical permit-application 

process will be less burdensome for the 

applicant than the permit process under 

the ESA, since an HCP is not required. 

Preparing an HCP can be timeconsuming and is usually delegated to 

a professional consultant. HCPs often 

cover large geographic areas—some 

larger than a million acres—and set 

forth terms and mitigation measures 

designed to protect species for up to 100 

years. In contrast, the information 

required to apply for an individual 

Eagle Act permit does not include an 

extensive habitat analysis, is easier to 

compile, and will require less 

information, since permits will be valid 

for no more than five years. 

Service biologists at GS-11 to 13 grade 

levels on the Office of Personnel 

Management General Pay Schedule, 

with support of GS-7 staff, would be 

responsible for pre-application technical 

assistance; reviewing and determining 

the adequacy of the information 

provided by an applicant; conducting 

any internal research necessary to verify 

information in the application or 

evaluate the biological impact of the 

proposed activity; assessing the 

biological impact of the proposed 

activity on the bald or golden eagle; 

evaluating whether the proposed 

activity meets the issuance criteria; 

preparing or reviewing NEPA 

documentation; determining 

consistency with other laws such as the 


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

section 106 of the NHPA; coordination 

and consultation with States and tribes; 

and preparing either a permit or a denial 

letter for the applicant. To evaluate the 

impact of the proposed activity, Service 

biologists may also need to visit the 

location to examine site-specific 

conditions. 

Programmatic permits will take 

considerably longer to craft and process. 

We expect most industry-wide or 

agency-wide standard practices for 

programmatic permits would be 

developed with the respective entities 

and Service staff who work on policy 

development in the Washington Office, 

in coordination with Service Regions. 

We anticipate that some programmatic 

permits, particularly early ones will 

require the Service to convene and lead 

meetings of workgroups representing 

the entities seeking permits. The 

workgroups would develop metrics for 

establishing/quantifying baseline effects 

through estimates or a sampling scheme; 

identify the best-available techniques 

and mutually-approved standard 

practices for minimizing the likelihood 

of take of eagles; and develop standards 

for system or program risk analyses, 

guidance for determining reasonable 

timeframes for completion of any 

required retro-fitting, standards and 

guidelines for effective monitoring 

programs and reports of eagle take to the 

Service, and measurable criteria for 

evaluating the implementation and 

efficacy of practices. Over the long term, 

we estimate it will take about 100 

Service staff hours to process the 

average programmatic take permit. The 

programmatic permits we develop 

initially will likely take longer, as will 

large-scale and more complex 

programmatic permits. Those may take 

up to 400 Service staff hours to prepare. 

We estimate it will cost the Service 

approximately $1,750 to process the 

average § 22.26 permit application, 

including $940 for pre-application 

technical assistance from Field Office 

biologists, and $810 for the Regional 

Migratory Bird Permit Office once it 

receives the application. For § 22.27 

permits, we estimate the cost to the 

Service to be $1,950. We estimate it will 

cost the Service about $650 to amend 

the average permit. The average 

programmatic permit application under 

either § 22.26 or § 22.27 is likely to cost 

the Service $5,000. We estimate the 

average cost to the Service for 

substantive amendments to 

programmatic permits to be $1,500. 

These estimates include technical 

assistance provided by the Field Office, 

as do the hourly estimates below. 

On average, we estimate that it will 

take Service employees approximately 

42 hours to process each individual § 

22.26 permit application, approximately 

46 hours for each § 22.27 permit 

application for take of an eagle nest, and 

approximately 120 hours for a 

programmatic permit under either 

permit type. Therefore, an application 

fee of $500 will offset only about 28% 

of the cost to the Government of 

responding to a request for a § 22.26 and 

about 25% of the cost of processing a § 

22.27 nest-take-permit application. The 

$150 standard amendment fee will make 

up about 27% of the Service’s costs. The 

$1,000 programmatic permit application 

fee will recoup about 20% of the permit 

processing cost to the Service. The $500 

programmatic-permit amendment fee 

will recoup about 33% of the cost to the 

Service. Although these fees are not 

high enough to allow the Service to 

recoup even half the cost of issuing 

them, they are significantly higher than 

other permit application processing fees 

we assess. The fees associated with 

these regulations must be manageable to 

small business owners, home owners, 

and other members of the public who 

may find a higher fee prohibitive. 

Economic Analysis 

A brief assessment to clarify the costs 

and benefits associated with this rule 

follows: 

Change. This rule will provide for the 

authorization of activities that take bald 

eagles and golden eagles under the Bald 

and Golden Eagle Protection Act (Eagle 

Act). Under the rule, the public will 

have the opportunity to apply for 

permits to authorize the take of bald 

eagles and golden eagles under the Eagle 

Act. Some incidental take of eagles was 

previously authorized under the 

Endangered Species Act, primarily bald 

eagles covered by an incidental take 

statement issued pursuant to ESA 

section 7. Some bald eagle take was 

authorized under ESA section 10 

incidental-take permits. Twelve ESA 

section 10 permits authorized take of 

golden eagles as covered listed species. 

However, ESA take authorization for 

eagles has not been issued in Alaska, 

where neither species of eagles was ever 

listed under the ESA. Thus, any 

authorization for take in Alaska would 

be newly available. Authorizations for 

take of bald eagles and golden eagles are 

expected to increase from what was 

authorized under the ESA. 

Baseline. The costs and benefits will 

result from (1) the authorization of take 

of bald eagles and golden eagles 

throughout the United States under 

§ 22.26, and (2) the number of permits 

for take of bald eagle and golden eagle 

nests throughout the United States 

under § 22.27. 

Costs Incurred. In general, the costs 

incurred due to the rule would relate to 

the costs of assembling the necessary 

information for the permit application, 

permit fees, and the costs of monitoring 

and reporting requirements associated 

with the permit. As explained below, it 

is difficult to predict the number of 

applications the Service should 

anticipate under these regulations. 

However, due to various factors, we 

expect that demand for eagle-take 

permits will increase, from about 54 

authorizations per year under the ESA 

to approximately 910 permits per year 

under the two new Eagle Act permit 

regulations. Therefore, using the current 

number of authorizations issued under 

the ESA as a baseline, approximately 

856 permit authorizations would be 

new. 

Some of these entities (those that are 

non-governmental) would bear the 

higher permit application fees under the 

Eagle Act as compared to the current fee 

for an ESA incidental-take permit (to 

capture a more equitable share of the 

costs to the Service that would 

otherwise be borne by taxpayers), 

although many applicants will be State, 

local, tribal, or Federal agencies, which 

are exempt from application processing 

fees for Service permits. Costs for other 

aspects of the permit-application 

process will generally be lower than 

costs associated with the ESA section 10 

permit application process (e.g., less 

information needs to be compiled and 

provided to the Service as part of this 

permit application versus the 

requirement to create a Habitat 

Conservation Plan (HCP) under the 

ESA). 

We are establishing a $500 permit 

application processing fee for the 

standard § 22.26 take permit and 

standard § 22.27 nest-take permit. Each 

of these permit categories will require a 

$150 fee for permit amendments. 

Programmatic permits under both 

regulations require a $1,000 processing 

fee and a $500 amendment fee. We 

anticipate receiving about 1,120 take 

permit applications under § 22.26 

nationwide annually, and 20 

applications for programmatic permits 

under § 22.26. We estimate receiving 70 

nest-take-permit applications under 

§ 22.27 and 20 applications for 

programmatic nest-take permits. (We 

anticipate that we will issue permits in 

response to the majority of these 

applications, particularly the 

programmatic permit applications, 

because applicants will already have 

coordinated with the Service before 

applying for a permit, and many project 

proponents will have either adjusted 

their projects so as not to need a permit 


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or concluded that a permit will not be 

issued for the take associated with the 

proposed project. The remaining 

potential applicants are those who are 

likely to need and qualify for a permit.) 

Approximately 60 standard permits and 

16 programmatic permits may need 

amendment annually. 

We expect about half of the applicants 

for both types of permits to be Federal, 

State, local, or tribal governments, none 

of which are required to pay a permitapplication processing fee or 

amendment-processing fee. Therefore, 

we estimate that annual application fees 

and amendments will total 

approximately $320,000 (560 permit 

applications under § 22.26 x $500 fee, 

+ 35 nest-take-permit applications 

under § 22.27 x $500 fee, + 20 

programmatic permit applications x 

$1,000 fee, + 30 standard amendments 

x $150 amendment fee, + 8 amendments 

to programmatic permits x $500 

amendment fee). There is no fee for 

processing annual reports. 

These permit fees would be new costs 

related to this rule. There may be 

additional costs associated with the 

permit process, which may include 

mitigation costs and, if the applicant 

engages a consultant or attorney, 

consultant and legal fees. The 

information required to apply for an 

individual Eagle Act permit is less 

extensive and easier to compile than 

permits under the ESA. Information 

such as latitude and longitude are 

publicly available (e.g., Google Earth). 

The majority of people will be able to 

submit this information to the Service 

without the need to hire a consultant, 

especially with the help of local and 

State government staff who may be 

willing to provide assistance with 

location and distance information 

between the project and the eagle nest 

or use area. The Service will direct 

applicants to available, free or 

inexpensive tools and services for 

obtaining the necessary information. 

Larger project proponents may prefer 

to hire consultants. Consultant fees 

could range from $300 to many 

thousands of dollars, depending on the 

scale of the project, but presumably still 

would be cost-effective, as compared to 

avoiding the take, since the choice is the 

applicant’s to make. In many cases, for 

larger projects, project proponents will 

have hired consultants to address a 

multitude of other factors unrelated to 

impacts to eagles, so additional costs 

related to Eagle Act authorizations 

would be minimal. 

We anticipate that there will be many 

instances where project proponents 

approach the Service, and based on 

preliminary coordination with us, adjust 

project plans to reduce the likelihood of 

take to the point where no permit is 

needed, and none is therefore issued. 

Some costs will be associated with this 

process. However, these costs are not 

the result of this permit regulation, but 

stem from the statutory prohibitions 

against taking eagles. 

Costs may have been incurred related 

to current projects that are in process 

and are delayed and potential projects 

that were not initiated due to the lack 

of availability of ESA permits during the 

period after the bald eagle was delisted 

in most parts of the lower 48 States and 

prior to Eagle Act take permits 

becoming available under this rule. 

These costs would be attributed to the 

determination to delist the bald eagle. 

Therefore, this analysis does not 

quantify these costs. 

In addition to costs to the public, the 

Service will incur administrative costs 

due to this rulemaking. We do not have 

a firm basis on which to confidently 

predict how much demand there will be 

for permits under these regulations. We 

estimate that the number of eagle-take 

permits will increase under the rule 

from an average of 54 authorizations 

previously issued under the ESA, to 830 

Eagle Act § 22.26 take permits, 40 nesttake permits issued under § 22.27, and 

40 programmatic permits issued under 

both regulations, annually. We expect 

an increase because: (1) many smaller 

projects will no longer be able to get 

under the ESA section 7 ‘‘umbrella’’ of 

a Federal project when seeking 

authorization to take bald eagles; (2) 

following delisting, it is now more 

acceptable and less burdensome to get a 

permit to take eagles; (3) most bald eagle 

populations are increasing; (4) permits 

will be available for golden eagle take, 

and (5) ESA take permits were not 

issued in Alaska, but Eagle Act permits 

may be issued there under these permit 

regulations. 

The cost of issuing most permits will 

decrease, but many authorizations 

similar to those we previously granted 

under section 7 of the ESA (where the 

consultation covered numerous species 

in addition to bald eagles) would now 

require the issuance of an Eagle Act 

permit in addition to a biological 

opinion. On average, we estimate it will 

cost the Service approximately $1,750 to 

process the average § 22.26 permit 

application (including pre-application 

technical assistance). Assuming 

approximately 1,120 permit 

applications under § 22.26, 70 nest-takepermit applications under § 22.27, 40 

programmatic permit applications, 60 

standard permit amendments, and 16 

programmatic amendments, per year, 

the annual costs associated with 

processing permit applications to the 

Service would total approximately 

$2,348,500 (1,120 x $1,750 for § 22.26 

permit applications, + 70 x $1,950 for § 

22.27 nest-take-permit applications, + 

40 x $5,000 for programmatic-permit 

applications, plus 60 x $600 for 

standard amendments, plus 16 x 1,000 

for programmatic amendments). 

The Service will also incur the cost of 

providing technical assistance, even 

where no permit is issued. The 

workload associated with each such 

consultation will generally be less than 

for situations where a permit is issued, 

but it will often be substantial. We 

estimate the average technical 

consultation will require 20 hours of 

staff time, and we anticipate the number 

of such consultations not resulting in 

permits will be about 800 per year, 

resulting in $628,000 in increased costs 

to the Service from technical 

consultations. All estimated costs for 

staff time include salary and benefits. 

Overall, we estimate that new 

administrative costs for the Service to 

implement this rule will be over $3 

million per year, including the costs to 

Regional and Field Offices for actual 

implementation of the permit program, 

plus costs associated with the 

development and maintenance of the 

program (e.g., training, developing 

implementing policies, responding to 

Freedom of Information Act requests, 

budget formulation, etc.), which will be 

borne by the Service’s Migratory Bird 

and Ecological Services program offices. 

Benefits Accrued. Under the rule, 

benefits to the public will accrue from 

issuance of permits to take bald eagles 

and golden eagles throughout the 

United States. In general, benefits will 

include increased value in land that can 

now be developed or harvested for 

timber, as well as the elimination of the 

risk and future costs associated with the 

potential unpermitted take of eagles that 

could occur from the development 

activities. Benefits will depend on the 

level of potential future growth 

associated with the authorized permit 

activity. 

Only minimal take of golden eagles 

(as covered non-listed species in HCPs) 

has been authorized under the ESA 

prior to proposing this rule. However, 

because population data indicate that 

take of golden eagles should be 

extremely limited, we anticipate issuing 

only a minimal number of new take 

authorizations for golden eagles under 

these new regulations. Some take of 

golden eagles throughout the United 

States that may be authorized by these 

regulations may result in new 

development and activities that could 

not have proceeded legally without this 


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rule. We expect that economic benefits 

may accrue as a result of the 

implementation of this rule for oil and 

gas development operations, farming 

and ranching operations, mining 

companies, utilities, the transportation 

sector, and private land owners. 

Overall, we anticipate issuing 

approximately 910 take permits per 

year, under both regulations. We have 

completed a final environmental 

assessment (FEA) of the effects of this 

rulemaking, which is available on our 

website at http://www.fws.gov/ 

migratorybirds/baldeagle.htm). Under 

the FEA, we developed take thresholds 

that will guide permit issuance to 

ensure that take is compatible with the 

preservation of the bald eagle and the 

golden eagle. As a result, we anticipate 

that the amount of take that will be 

requested and authorized under this 

permit regulation will not significantly 

affect bald or golden eagle populations. 

Response to Public Comments 

Unless otherwise noted, each subject 

heading includes all substantive 

comments we received on both the June 

5, 2007, proposed rule and the proposed 

revisions to the rule noted in our August 

14, 2008, notice re-opening of the 

comment period on the rule and 

announcing the availability of the DEA. 

We are responding to the comments 

concerning the environmental analysis, 

population modeling, take thresholds, 

and other aspects of the DEA in the 

FEA. Copies of the FEA are available at 

http://www.fws.gov/migratorybirds/ 

baldeagle.htm.) 

Populations and Take Thresholds. 

(The comments addressed under this 

heading were all made on the June 5, 

2007, proposed rule. Comments 

addressing populations and take 

thresholds that we received after release 

of the draft environmental assessment 

are addressed in the FEA.) 

Comment: The use of the Partners in 

Flight (PIF) threshold for rate of 

population decline beyond which 

permits would not be issued is 

inappropriate. The PIF threshold is 

unacceptable because it amounts to a 

15% loss over 30 years. 

Service response: The final regulation 

caps the number of permits we can issue 

with thresholds designed to ensure 

increasing or stable breeding 

populations. Our reasoning is based on 

the fact that steady declines, even as 

small as 0.54% annually, the rate we 

proposed in the June 5, 2007, proposed 

rule (72 FR 31141), will cumulatively 

result in an unacceptably large decrease 

in population over time. Accordingly, 

we are establishing take thresholds 

consistent with the goal of stable or 

increasing breeding populations. 

Therefore, for purposes of this 

regulation, ‘‘compatible with the 

preservation of the bald eagle and the 

golden eagle’’ means ‘‘consistent with 

the goal of stable or increasing breeding 

populations.’’ Although take thresholds 

are based on regional populations, the 

regulation requires the Service to 

consider additional factors, such as 

cultural significance, that may warrant 

protection of smaller and/or isolated 

populations within a region. 

We anticipate no more than modest 

increases in bald eagle populations in 

the future. We have no evidence at this 

time that leads us to expect any increase 

in golden eagle populations. Golden 

eagles appear more likely to experience 

declines, due to loss of prey base, 

disturbance, and loss of habitat due to 

resource extraction activities, and other 

factors. For more discussion on 

population thresholds, see our FEA of 

this action. 

Comment: The appropriate 

population threshold on which to base 

the number of permits that can be 

issued (to be compatible with the 

preservation of the bald eagle and the 

golden eagle) should be ‘‘no negative 

impact on the eagle’s population growth 

rate.’’ 

Service response: We disagree with 

this comment. Even if considered a 

desirable goal, maintaining the same 

growth rate indefinitely is unrealistic. 

How large a population is ideal for 

either species of eagle depends on a 

range of factors, but as with any other 

species, there are ecological limits that 

weigh against and ultimately prevent 

continuous growth. Although we do not 

predict either species of eagle will 

become overabundant in the foreseeable 

future, some regional populations of 

bald eagles will likely level out after 

reaching an ecologically-sustainable 

size. To prohibit human activity within 

those areas because the growth rate of 

eagles has slowed would overly burden 

people without any benefit to eagles. 

Comment: The Service should clarify 

the relationship between the permit 

regulation and the draft bald eagle postdelisting monitoring plan (PDMP). The 

PDMP data will not be adequate for 

purposes of detecting the rate of decline 

the Service will use for permitting 

purposes, and neither will the other 

monitoring sources referenced in the 

rule. The Service should instead apply 

a harvest model that takes into 

consideration current population trend 

and assumes that permits issued will 

result in take. 

Service response: We acknowledge 

that our description in the June 5, 2007, 

proposed rule of how we intended to 

analyze appropriate levels of take was 

not as clear as it could have been (72 FR 

31141). Our intent was always to use 

modeling, similar to harvest modeling 

we conduct for other migratory bird 

species. 

The PDMP is a national-level 

monitoring plan designed to detect 

declines that would merit 

reconsideration of the bald eagle as 

threatened or endangered under the 

ESA, whereas the population trends on 

which we would base take thresholds 

under this take permit regulation will be 

smaller in scale and at levels that are 

below the detectability of the PDMP. 

To establish take thresholds for this 

permit regulation, we will rely on the 

best data we can obtain, including the 

sources noted in the proposed rule. We 

will use models to ascertain how much 

take could be permitted before causing 

impacts to eagle populations that would 

not be compatible with the preservation 

of the species. If we have inadequate 

data to run the models and no other 

means of assessing the status of the 

population where the take will occur, 

we may not be able to determine that 

the take is compatible with the 

preservation of the species. If we are 

unable to make that determination, we 

cannot authorize take under the Eagle 

Act. 

Comment: Take thresholds should be 

assessed based on the national 

population as a whole. (The commenter 

did not provide a basis for this 

recommendation.) 

Service response: Under the ESA, 

listing and delisting decisions must be 

made purely on the basis of the ‘‘best 

scientific and commercial data 

available.’’ Effects on the economy are 

excluded from the analysis, as are other 

human social or cultural values beyond 

those furthered by the ESA. Because the 

Eagle Act is not delimited by such 

statutory constraints, and because 

protecting regional and local 

populations of bald eagles and golden 

eagles is culturally important to the 

American people, this regulation 

interprets compatibility with the 

preservation of the species to include 

maintaining regional and locallyimportant populations. Take thresholds 

would be based on modeling of regional 

population data, but within a regional 

population, as part of our evaluation of 

take applications, we will take into 

consideration factors that may warrant 

protection of more localized 

populations, including the cultural 

significance of a local population. 

Comment: In addition to the nine bald 

eagle management populations 

mentioned in the proposed rule, the 


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Service needs to assess eagle 

populations by State and NABCI bird 

conservation area, or local areas. 

Otherwise some regional and local 

populations would be threatened. Local 

populations can be of unique 

importance, including to the public. 

Service response: We are using the 

NABCI bird conservation regions (BCRs) 

to manage golden eagle populations, 

further broken down by portion of BCR 

within each Service Region. For bald 

eagles, we are not using nine 

management populations as we referred 

to in the proposed rule. Instead, to 

establish management populations for 

bald eagles, we used natal populations 

to look at distribution across the 

landscape, allowing us to determine 

rough natural ‘‘boundaries’’ between 

regional eagle populations. Because the 

management populations delineated by 

this approach roughly correspond to the 

Service’s organizational structure made 

up of 8 Service Regional Offices, we will 

manage bald eagles using populations 

within Service Regions, with some 

adjustments, explained in more detail in 

the FEA. 

Regarding the concern that local 

populations will not be adequately 

protected, as part of our evaluation of 

take applications, we will take into 

consideration biological and humaninduced pressures on, and cultural 

significance of, more localized 

populations. In evaluating whether the 

take is compatible with the preservation 

of the eagle, we must consider 

cumulative effects, which will help 

ensure adverse impacts are not 

concentrated in one locality. 

Comment: The regulations should 

explicitly state that permits will be 

denied if the population declines to the 

threshold level. 

Service response: The regulations 

explicitly state that before issuing a 

permit, the Service must determine that 

the take is compatible with the 

preservation of the bald eagle or the 

golden eagle, which is the statutory 

mandate. If data indicate populations at 

either national or regional scales are 

declining, depending on the source and 

severity of the decline, the Service may 

establish lower take permit thresholds 

where appropriate or suspend 

permitting until data confirm the 

population can support take. 

Comment: The Service provides no 

assurances that bald eagles in Arizona 

will be protected. Arizona bald eagles 

must be considered separately. 

Service response: As explained in 

greater detail within our FEA, we will 

not issue permits that would result in 

declines in the Sonoran Desert bald 

eagle population. Permit thresholds for 

all regions of the U.S. will be consistent 

with the goal of stable or increasing 

breeding populations. 

Comment: The proposed rule stated 

that, if populations decline to the 

threshold level, the Service will refrain 

from issuing permits ‘‘until such time 

that the take would be compatible with 

the preservation of the bald or golden 

eagle.’’ That statement should be 

amended to add ‘‘unless human life may 

be impacted.’’ 

Service response: Depending on what 

factors are responsible for the decline 

and whether the decline is likely to be 

short-term (part of a recurring 

population cycle) or long-term, the 

Service may not need to suspend permit 

issuance, and may merely reduce the 

number of permits issued. However, if 

the breeding population is reduced to 

the degree that issuance of a permit 

would be incompatible with the 

preservation of the bald eagle or the 

golden eagle, we cannot issue that 

permit and remain in compliance with 

the Eagle Act, which authorizes the 

Secretary of the Interior to issue take 

permits only if he finds that the take 

would be compatible with the 

preservation of the bald eagle or golden 

eagle (16 U.S.C. 668a). Fortunately, in 

the majority of cases, emergency take 

will meet that standard, since many 

threats to human life that could be 

caused by eagles may also threaten the 

eagles themselves. For example, if for 

human safety purposes, a utility needed 

to remove a nest to prevent an electrical 

fire or an airport needed to haze eagles 

to prevent them from nesting near 

runways, the authorized take would 

prevent both eagle and human 

mortalities. Because issuing a permit in 

these types of situations would prevent 

harm to the eagle, the action would be 

compatible with the preservation of the 

eagle. 

Nevertheless, to ensure that safety 

emergencies can be legally redressed, 

we are adding issuance criteria to the 

regulations to ensure that take 

associated with safety emergencies is 

given priority over take for any other 

purpose. 

Comment: The statement that permits 

will be issued on a limited basis raises 

concerns that a predictable incidental 

take process will not be available. 

Service response: The Service has the 

responsibility to implement certain laws 

that protect wildlife, including eagles. 

The Eagle Act contains a mandate that 

take of eagles be compatible with the 

preservation of the species. Unlimited 

authorizations for take would be 

compatible with the preservation of the 

bald eagle and the golden eagle only if 

demand for permits remains below the 

level that would cause population 

declines. If demand is higher than that 

threshold, we must limit the number of 

permits we issue. Hence, the availability 

of permits will depend on the level of 

demand and the availability of reliable 

data reflecting healthy eagle 

populations. In addition, the process 

will be predictable in that the take 

thresholds for each year in each region 

will be known. 

Comment: Since the Service cannot 

issue permits unless the take will be 

compatible with the preservation of the 

species, meaning that permits cannot be 

issued without adequate data, the 

Service should consider either requiring 

permittees to contribute to monitoring 

efforts, or making the availability of 

permits expressly contingent on there 

being in place a monitoring program 

sufficiently rigorous to detect the 

threshold decline upon which permit 

issuance will be predicated. 

Service response: As discussed earlier 

in the preamble, and more fully in the 

FEA, we have reduced initial take 

thresholds for both species, capping 

permitted take for bald eagles at 5% of 

estimated annual productivity and for 

golden eagles at historically-authorized 

take levels. This more conservative 

approach will buffer the natural 

variability in vital rates affecting 

population trends and, perhaps more 

importantly, ensure against gaps in our 

data. 

‘‘Other interests in a particular locality’’ 

Comment: The Service states that the 

Eagle Act’s authority for granting the 

proposed permits stems from the Act’s 

provision that the Secretary of the 

Interior may issue permits ‘‘for the 

protection of wildlife or of agricultural 

or other interests in a particular 

locality.’’ The final rule must define 

‘‘other interests.’’ Without doing so, the 

rule is an overbroad interpretation of the 

Eagle Act because it ignores the fact that 

‘‘other interests’’ is associated with 

‘‘wildlife’’ and ‘‘agricultural’’ interests, 

and does not comport with the 

remainder of the statute’s provisions 

restricting the purposes for which take 

can be authorized. 

The proposal is not consistent with 

the Eagle Act because it would 

authorize take for any purpose or 

activity, whereas the statute clearly 

intended to limit the purposes for which 

take could be authorized. Furthermore, 

the proposal fails to show what ‘‘other 

interests’’ have been jeopardized by the 

long-standing legal prohibition on 

taking eagles. At the very least, the 

Service needs to delineate what ‘‘other 

interests’’ will qualify for the permit. 

The proposal’s over-broad interpretation 


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of ‘‘other interests,’’ would allow 

permits for a vastly broader range of 

purposes than is currently authorized 

under the MBTA, which is nonsensical, 

since the Eagle Act clearly restricts take 

to certain purposes, whereas the MBTA 

can authorize take wherever it is 

consistent with the treaties. 

Service response: We read Congress’s 

inclusion of the phrase ‘‘or other 

interests in any particular locality’’ as 

intended to ensure that other interests 

besides wildlife and agricultural claims 

would be able to seek remedy through 

a permit issued pursuant to regulations. 

In drafting the statute as it did, Congress 

gave the Secretary broad discretion to 

determine what types of other interests 

might be jeopardized by the broad 

protections afforded to eagles. When the 

statutory language was developed, the 

perception that eagles were a significant 

threat to livestock was widespread. 

Today, the American economy is 

comprised of numerous additional 

‘‘interests’’ that have largely supplanted 

ranching in many areas of the country. 

These ‘‘other interests’’ provide jobs and 

support our infrastructure and quality of 

life, and by so doing merit similar 

protection as agriculture and livestock. 

Therefore these regulations provide a 

means to authorize eagle take to protect 

‘‘other’’ interests such as transportation 

needs, electric utility maintenance, 

residential and commercial 

development, forestry, resource 

development and recovery, and other 

public and private interests. 

Comment: In contrast to the restrictive 

process for authorizations for Native 

American religious use, the Service here 

proposes a sweeping process for 

allowing a broad spectrum of public and 

private interests to take eagles where 

their locations stand in the way of 

development and utility interests. The 

disparate treatment between these 

approaches must be reconciled. 

Service response: The process by 

which we issue permits to Native 

Americans for take of eagles from the 

wild and permits for possession of eagle 

parts and feathers from the National 

Eagle Repository are the least restrictive 

means of doing so while protecting 

other compelling interests. Unlike under 

the permit regulations we are finalizing 

through this rulemaking, we do not 

require any mitigation or other 

conservation measures to offset the 

impacts of Native American religious 

take permits. 

Furthermore, the effect of issuing 

permits under this proposed regulation 

will not impinge on Native Americans’ 

access to eagles for religious/ceremonial 

use. This regulation includes provisions 

to ensure that, if overall demand for 

authorizations to take eagles approaches 

what would be compatible with the 

preservation of the bald eagle or the 

golden eagle, requests related to Native 

American religious/ceremonial use will 

be authorized before other requests for 

take. 

Scope and Criteria of § 22.26 

Comment: The proposed rule states 

that a permit may be issued when 

several criteria are met including where 

‘‘the take cannot practicably be 

avoided.’’ The use of a ‘‘practicable 

avoidance’’ standard is inconsistent 

with the Eagle Act because it elevates 

cost and overall project concerns over 

protecting bald eagles. The Eagle Act 

provides that take should be authorized 

only where it is necessary to protect a 

legitimate interest, not merely a 

facilitating factor. The applicant should 

have to affirmatively demonstrate that, 

in the absence of the permit, the 

legitimate interest cannot be met, and 

the applicant must not be allowed to 

define the goals in an overly narrow 

manner. 

Service response: We agree with the 

commenter that the goal for which the 

take is necessary must not be defined 

too narrowly by the applicant. For 

example, if a municipality is installing 

a bike trail with the goal to create a trail 

with an unbroken view of the river, it 

may be more difficult to avoid 

disturbing eagles along the river, than 

were the goal less narrowly defined—for 

example, to create a bike path that 

loosely parallels the river. Where 

possible, interests should be defined 

broadly enough to allow plans to be 

reasonably modified if necessary to 

protect bald eagles or golden eagles. 

We do not agree that the practicable 

avoidance standard elevates the interest 

of the project proponent over eagles 

because whether the impact can 

practicably be avoided is only one of the 

factors we will weigh before issuing a 

permit, and it is secondary to whether 

the take will be compatible with the 

preservation of the bald eagle or the 

golden eagle. Nevertheless, to address 

this concern, when we re-opened the 

comment period on the regulation in 

August 2008, we modified the proposed 

definition of ‘‘practicable’’ to 

incorporate the need to consider the 

feasibility of the action relative to the 

scope of the impact on eagles. The final 

definition of ‘‘practicable’’ reads: 

‘‘capable of being done after taking into 

consideration, relative to the magnitude 

of the impacts to eagles (1) the cost of 

remedy comparative with proponent 

resources; (2) existing technology; and 

(3) logistics in light of overall project 

purposes.’’ 

Comment: The applicant should not 

have to show that the take cannot 

practicably be avoided or that he has 

minimized impacts to the extent 

practicable. The language is similar to 

that used under the Clean Water Act 

section 404 wetlands permit program, 

which raises the concern that the 

Service will require applicants to 

conduct a detailed alternatives analysis 

test, including consideration of project 

purpose and alternative project sites. 

The Service should identify the 

authority under the Eagle Act for 

requiring that impacts be minimized to 

the extent practicable. 

Service response: The Eagle Act 

stipulates that permits may be issued 

where the take is necessary to protect ... 

other interests in any particular locality 

(italics added for emphasis). Some 

could argue that, to be necessary, a thing 

is absolutely required and cannot be 

omitted or avoided. We believe a less 

strict interpretation is reasonable and 

justified to ensure that human activity is 

not overly restricted, and so interpret 

‘‘necessary’’ as something that cannot 

practicably be avoided. In short, we 

view the practicability standard as less 

burdensome than other reasonable 

interpretations of the statute’s purpose 

and intent, and therefore appropriate to 

adopt for purposes of this rulemaking. 

Comment: Take authorized by these 

permits should be limited to activities 

that benefit the public welfare. 

Service response: The Eagle Act does 

not limit take to activities that benefit 

the public as opposed to private 

interests. The statute specifically 

provides that take can be authorized to 

protect agriculture, which in this case 

primarily meant privately-owned 

livestock. 

Comment: The Service should model 

the regulation on the U.S. Army Corps 

of Engineers’ requirements for 

avoidance, minimization, and 

mitigation of unavoidable impacts, and 

these should be clearly set forth in the 

regulation. 

Service response: While it was not our 

goal to model this proposed rule on 

Corps’ regulations, the Service’s official 

mitigation policy as set forth in the U.S. 

Fish and Wildlife Service Manual (501 

FW 2) and reflected in this rule, is based 

on a similar tiered approach to reducing 

the overall impact of activities, 

beginning with avoidance and 

minimization, and requiring 

compensatory mitigation for large-scale 

activities with greater impacts. 

Comment: Permits for take that results 

in mortality should be issued only for 

human health and safety. 

Service response: Our goal and 

responsibility under the Eagle Act is to 


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preserve bald eagles and golden eagles, 

which we interpret and define as 

consistent with the goal of stable or 

increasing breeding populations of both 

species, but not protecting each and 

every eagle. Take that results in a loss 

of productivity and take that results in 

mortality must be assessed primarily in 

terms of affects to the regional and local 

area populations. Depending on the age 

and breeding status of an individual 

eagle, some take that results in mortality 

will have less impact than some 

disturbance take. Therefore, we believe 

there is no rationale to enact a 

prohibition on take that results in 

mortality—versus take in the form of 

disturbance—for commercial purposes. 

Comment: There is a big difference 

between lethal vs. non-lethal take in 

terms of the significance of the eagle as 

a sacred being for Native Americans. 

Native Americans will not support 

lethal take for commercial purposes. 

Service response: First, see our 

preceding response. We will, however, 

when appropriate, undertake 

consultation with tribes that may be 

affected by the lethal take of an eagle on 

a case-by-case basis, and will consider 

the cultural and spiritual significance of 

eagles and how take that results in 

mortality could adversely affect tribal 

cultural values at that time. 

Comment: Where take resulting in 

mortality is authorized for an industry 

or other non-tribal entity, tribal 

members should be given the 

opportunity to physically take the 

eagles. 

Service response: If feasible and 

appropriate, we may encourage a tribe 

that applies to take eagles to take ones 

that would otherwise be taken under the 

regulations herein. However, as a 

generality, we think it will be difficult 

to meet the purposes of both permits 

with a single take. Tribes that qualify for 

a take permit must certify that the take 

itself is an integral aspect of the 

religious ceremony in order to justify 

why an eagle from another source will 

not meet the tribe’s needs. In other 

words, presenting the tribe with an 

eagle carcass will not suffice. Most eagle 

mortalities authorized under the permit 

regulations at § 22.26 are ‘‘noncontrollable,’’ that is, the timing and 

location of each take is not precisely 

known before it occurs. When 

discovered, the carcasses of eagles killed 

under these permits will be sent to the 

National Eagle Repository to meet the 

religious needs of tribal members where 

the take itself is not necessary to carry 

out the religious ceremony for which 

eagle parts and feathers are sought. This 

provision provides an equitable 

opportunity for members of all 

federally-recognized tribes to use 

feathers and parts from such eagles for 

religious purposes. 

Comment: The consideration of 

secondary impacts must be in the 

regulations, not just the preamble. 

Service response: We agree, and have 

added language addressing 

consideration of secondary impacts— 

now denoted as ‘‘indirect effects’’—to 

the regulations under § 22.26 at (e)(1), 

(e)(2) and (f)1, and under § 22.27 at 

(b)(7) and (e)(1). 

Comment: Secondary impacts will 

sometimes affect eagles that are known 

to breed, feed, or shelter on tribal land, 

and the tribes should be consulted 

before a permit is issued that would 

affect such eagles. 

Service response: Before issuing a 

permit under these regulations, the 

Service will consider whether proposed 

plans might affect tribal rights to trust 

resources. If the Service determines that 

such effects might occur, we will notify 

the affected tribe(s) and consult with 

them if requested. 

Comment: The use of ‘‘means test,’’ 

requiring the Service to consider ‘‘the 

cost of a remedy comparative with 

proponent resources’’ in determining 

whether a measure is practicable, is 

arbitrary and will result in more 

stringent requirements for project 

proponents with more financial means, 

rather than basing measure purely on 

what is practical. 

Service response: In fact, we do 

believe that more stringent measures are 

appropriate for project proponents with 

more financial means. The plainest 

meaning of ‘‘practicable’’ is ‘‘capable of 

being done.’’ Greater resources, 

financial and otherwise, enhance 

capability and increase options. For 

example, a large landowner will 

generally have more options when 

designing a project than a small 

landowner. Thus, a large land-holding 

company building on 500 acres should 

be able to site proposed buildings 

farther from a communal roost than 

would a private homeowner on a 2-acre 

lot. Similarly, if the potential remedies 

for avoiding the take entail more money 

as opposed to more land, a proposed, 

large commercial project that is likely to 

take eagles may be able to alter the 

project design in a manner that requires 

additional financial resources but 

avoids the take, and still make enough 

money to be profitable. 

Comment: Concentration areas need 

more protection than is proposed. The 

Service should designate areas like the 

Chesapeake Bay as critical to the 

continued recovery and maintenance of 

bald eagles, and establish higher 

standards for permitting take in those 

areas. 

Service response: The commenter’s 

suggestion is beyond the Service’s 

authority under the Eagle Act. However, 

to the degree that the Chesapeake Bay 

and other areas are critical to the 

preservation of bald eagles, take in those 

areas will be more highly scrutinized, 

since we must consider compatibility 

with the preservation of the eagle before 

issuing a take permit. Part of that 

assessment will be an analysis of 

cumulative impacts, which will help 

safeguard particular localities that are 

critical for bald eagles. 

Comment: The same consideration of 

whether alternative habitat is available 

that is proposed to be used for nest take 

should also be a criterion for 

disturbance permits when the 

disturbance is associated with the 

permanent loss of a nest, foraging area, 

or roost site. 

Service response: We agree with this 

comment and have added this 

consideration to § 22.26(e), Evaluation 

of applications. 

Prioritization Criteria 

Comment: There needs to be a system 

of prioritization. Otherwise, the demand 

will threaten to reverse population 

recovery. 

Service response: Recognizing the 

possibility that demand could exceed 

what would be compatible with the 

preservation of the bald or golden eagle 

in certain regions, we established 

regional take thresholds and will not 

issue permits in excess of those limits. 

We agree with the commenter that a 

system of prioritization is needed in 

case demand runs up against the 

thresholds, particularly in light of other 

types of eagle take permits we issue. 

Therefore, in the event demand exceeds 

take thresholds, the regulations include 

issuance criteria to ensure eagle take 

permits are issued according to 

following prioritization order: 

1. Safety emergencies (§ 22.23 and 

new §§ 22.26 and 22.27); 

2. Native American religious use for 

rites and ceremonies that require eagles 

be taken from the wild (§ 22.22); 

3. Renewal of programmatic permits 

(§§ 22.26 and 22.27, and possibly other 

sections); 

4. Non-emergency activities necessary 

to ensure public health and safety (§ 

22.23 and new §§ 22.26 and 22.27); 

5. (For golden eagle nests only) 

resource development and recovery 

operations (§ 22.25); 

6. Other interests (§§ 22.21, 22.22, 

22.23, and new § 22.26). 


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Comment: The Service should give 

priority to projects that are in the public 

interest. 

Service response: If demand exceeds 

take thresholds that would be 

compatible with the preservation of the 

bald eagle or the golden eagle, we will 

prioritize Native American religious and 

cultural use and activities that serve the 

public interest over those that would 

largely benefit private or commercial 

interests. 

Comment: Will the criteria giving 

Native Americans preference for eagle 

take mean that they will get depredating 

golden eagles instead of falconers? 

Service response: Yes; although this 

rulemaking is separate from the 

regulations governing take of 

depredating eagles, the same principals 

that underlie the prioritization criteria 

in this regulation would apply to take of 

depredating golden eagles. Thus, if both 

a tribe (for religious purposes) and 

falconer request possession of such an 

eagle, we will give priority to the tribe. 

Comment: The provisions giving first 

priority to tribes should require them to 

take from areas with the highest 

thresholds (if location not dictated by 

their religion). 

Service response: If demand is greater 

than take thresholds in a given region, 

and a tribe requesting take can 

practicably take an eagle in another 

region that has take thresholds that are 

higher than demand while meeting the 

religious needs of the tribe, we may 

require the tribe to take the eagle in that 

other region. 

Comment: The prioritization criteria 

and allocation process could affect the 

ability of the U.S. Department of 

Agriculture’s Wildlife Services’ program 

to manage depredating golden eagles. 

Service response: The prioritization 

criteria could affect Wildlife Services’ 

management of depredating golden 

eagles in rare cases. Where feasible and 

in accordance with tribal religious 

needs, if requests for take exceed take 

thresholds, we will direct tribes to take 

depredating eagles that would otherwise 

be taken by Wildlife Services or 

falconers. 

Relationship to the National Bald Eagle 

Management Guidelines 

Comment: The rule is unclear as to 

whether a permit is required for take 

that results from activities conducted in 

accordance with the Guidelines and 

other best management plans. The final 

rule should explicitly state that 

compliance with the Guidelines 

amounts to a de facto permit, or at least 

creates a presumption of compliance 

with the Eagle Act. The new bald eagle 

management scheme in Florida clearly 

states that no permit will be required for 

activities that conform to the 

Guidelines. The Service should do the 

same. 

Service response: The State of 

Florida’s new bald eagle management 

scheme is based on Florida law and 

does not require a permit to take bald 

eagles. Our regulations are authorized 

by the Eagle Act, which specifically 

requires a permit to take bald eagles. 

Therefore, we cannot do as Florida has 

done, that is: promulgate regulations 

that authorize some take without a 

permit. We believe take is generally 

unlikely to occur when our Guidelines 

are used to conduct of activities near 

eagles. Therefore, most activities that 

clearly conform to the recommendations 

provided by the Guidelines would not 

necessitate a permit. However, 

adherence to the Guidelines is not 

always as straightforward as simply 

keeping the project footprint 330 or 660 

feet from an eagle nest, based on a 

category of activities. The Guidelines 

are guidance, and do not dictate what 

effects will actually happen to eagles 

from any particular activity. Many 

activities entail a variety of impacts, 

sometimes to eagles in more than one 

location, sometimes as the result of 

subsequent, foreseeable effects. 

Accordingly, to avoid take of eagles, 

more than the immediate project 

footprint should be considered. Also, 

some activities will not fit neatly into 

the categories provided in the 

Guidelines, and sometimes special 

circumstances may be present that make 

take more or less likely to occur. 

Examples of such circumstances include 

unusually open topography, acoustic 

anomalies, scarcity of alternative 

resources in a particular vicinity, and so 

forth. In summary, ‘‘adherence to the 

Guidelines,’’ is not a simple formula 

that will uniformly predict whether take 

will occur. 

Comment: The Service should 

consider ways to allow for minor 

exceptions to the Guidelines without 

requiring a permit. 

Service response: See our response to 

the preceding comment. We do not 

prohibit or authorize exceptions to the 

Guidelines. All we can prohibit or 

authorize are certain impacts to eagles. 

Anyone may choose to ignore the 

Guidelines, and that choice requires no 

authorization from us. However, if an 

eagle is disturbed or otherwise taken 

without a permit, it will be a violation 

of the Eagle Act. 

Comment: The Service should make 

permits available for activities that 

conform to the Guidelines. At the very 

least, the Service should issue ‘‘Notake’’ letters to give landowners written 

protection from take liability for 

activities consistent with the 

Guidelines. 

Service response: Due to the limited 

staff and resources of our agency, we 

want to discourage applications for 

permits to cover take of eagles that is in 

fact unlikely to occur. We believe our 

conservation mission is better served by 

helping the public reduce the likelihood 

of take by providing permits in 

appropriate circumstances where take is 

likely (and cannot practicably be 

avoided). If, after an application is 

submitted, the Service determines that 

take is not likely to occur, we may issue 

the permit (if permit issuance criteria 

are met); however, if we do not consider 

take likely to occur, we will not subtract 

the authorized take from Regional take 

thresholds—unless follow-up 

monitoring reveals that it did actually 

occur. 

Comment: The Service should use the 

various guidelines that have been 

developed for specific States or regions 

when evaluating take. 

Service response: The guidelines 

developed by different States and 

regions largely predate the Federal 

regulatory definition of ‘‘disturb.’’ To 

the degree that ‘‘disturb’’ has been 

interpreted relatively consistently by the 

different State and Federal agencies that 

developed the various guidance, those 

documents were useful to us when we 

developed our National Bald Eagle 

Management Guidelines. Because the 

Guidelines are designed to prevent an 

impact (disturbance) that is a Federal 

prohibition, we believe that a single set 

of recommendations for avoiding a 

violation of that prohibition should be 

applied throughout the United States. 

This in no way precludes States from 

enforcing their own statutory and 

regulatory protections for eagles, and 

applying their own guidance for 

minimizing State-prohibited impacts to 

eagles. 

Mitigation 

Comment: The proposed rule was 

unclear as to whether mitigation will be 

required for every permit issued, and 

also as to the range and types of 

mitigation that will be used. 

Service response: Mitigation includes: 

avoidance, minimization, rectification, 

reduction over time, and compensation 

for negative impacts. Under these 

regulations, all permittees are required 

to avoid and minimize the potential for 

take to the degree practicable, and for 

programmatic permits, to the point 

where take is unavoidable. 

Depending on the scale of the take, 

and the particular circumstances, the 

Service may require rectification and/or 


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reduction over time from some 

permittees. Additional compensatory 

mitigation will usually be required only 

for (1) programmatic take, and other 

multiple take authorizations; (2) 

disturbance associated with the 

permanent loss of a breeding territory or 

important traditional communal roost 

site; or (3) as necessary to offset impacts 

to local area populations. The take 

thresholds associated with this 

permitting process will ensure that each 

authorized take, along with cumulative 

take, is compatible with the 

preservation of bald eagles and golden 

eagles. Permit issuance is based on our 

making a finding that the population 

can withstand the take that will be 

authorized without experiencing a 

decline. Therefore, compensatory 

mitigation for one-time, individual take 

permits will not typically be necessary 

for the preservation of eagles. For 

projects with long-term impacts and/or 

impacts of a greater magnitude, 

compensatory mitigation will generally 

be required to reasonably offset the 

magnitude of the impacts. 

We are developing implementation 

guidance to ensure consistency in how 

these permits are administered. 

Mitigation will be addressed in more 

detail in that document, which will be 

made available for public notice and 

comment before being finalized. Some 

compensatory mitigation options we are 

considering at this point include: 

purchase and preservation of habitat or 

potential habitat; use of conservation 

easements to protect important eagleuse areas or potential nest sites; and 

contributions to a fund established to 

benefit eagles. 

Comment: Requiring compensatory 

mitigation for every permit will create a 

disincentive for landowners who would 

seek a permit in lieu of following the 

Guidelines. 

Service response: Permit issuance is 

predicated on the requirement that the 

take cannot practicably be avoided and 

that the applicant has proposed 

avoidance and minimization measures 

to the extent practicable. Under those 

circumstances, if the applicant can 

practicably avoid the take, he must. 

Requiring additional compensatory 

mitigation should have no effect on 

whether the applicant can follow the 

Guidelines. 

Comment: The final rule itself (and 

not just the preamble) must be explicit 

that secondary, foreseeable impacts will 

be assessed for purposes of determining 

what mitigation will be required. 

Service response: The rule provides 

that we must consider reasonably 

foreseeable secondary impacts when 

assessing the overall level of take. Also, 

we added language to the permit 

conditions at § 22.26(c)(1) that requires 

the Service to consider indirect effects 

for purposes of determining whether 

compensatory mitigation is appropriate. 

Comment: Mitigation must be geared 

to preservation of the local/regional 

population. 

Service response: Avoidance and 

minimization are inextricably tied to the 

local population. Generally, rectification 

and reduction over time also benefit the 

local population. Ideally, as provided in 

our Service Mitigation Policy, the 

benefits of compensatory mitigation 

would accrue to the area where the take 

will occur and second priority would be 

in proximity to that area. However, if 

compensatory mitigation within or in 

proximity to the planning area is not 

practicable or a significantly larger 

benefit could be realized in another 

locality or region, the permit may 

include mitigation measures that benefit 

eagles in a different locality. 

Comment: Any funding from 

mitigation should be used to protect 

eagle habitat. 

Service response: We agree that 

protecting eagle habitat should be a high 

priority. However, there may be other 

beneficial uses for mitigation funds—for 

example to support surveys and 

population monitoring. 

Comment: The Service must 

affirmatively describe the required 

minimization measures within the terms 

and conditions of the permit. As 

written, the rule allows the applicant to 

propose his or her own measures. 

Service response: The project 

proponent must provide as part of his or 

her application a description of the 

measures to which he or she is prepared 

to commit. Without that information, we 

cannot evaluate the overall impact of 

the project. If the proposed measures are 

not adequate, we will not issue the 

permit as proposed. The regulations 

preclude us from issuing a permit if the 

applicant has not proposed measures to 

minimize impacts to the degree 

practicable. In such a case, we will work 

with the applicant to develop stronger 

minimization measures or we must 

deny the permit. In reality, we will often 

work with the applicant during the 

application process, so the terms and 

conditions proposed by the applicant 

have already been evaluated by us when 

we receive the completed application. 

The final terms and conditions will be 

explicitly spelled out on the permit. 

Comment: Mitigation funding should 

be required and should go to States to 

compensate for their monitoring costs. 

Service response: As explained above, 

we will not always require 

compensatory mitigation for take that 

we think is likely to amount to a onetime loss of productivity. Also, 

compensatory mitigation may not be in 

the form of payment. For example, it 

might be fulfilled by donation of an 

easement. If compensatory mitigation is 

required in the form of payment to a 

fund established to offset the impacts of 

take, the disposition of those funds will 

depend on various factors, such as 

whether the funds could be used to 

benefit local eagle populations and 

whether the Service has entered into 

agreements with the State or tribe to 

apply such funding. If States or tribes 

conduct surveys and monitoring of bald 

or golden eagles, mitigation funds could 

be directed to help offset the costs. 

Comment: The rule should allow 

compensatory mitigation only in 

extraordinary circumstances. 

Service response: We interpret this 

comment to mean that the Service 

should always require avoidance and 

minimization, and not allow 

compensatory mitigation to take the 

place of such measures. We agree, and 

the regulations require that applicants 

for both types of permits must take all 

practicable steps to avoid and minimize 

take. If this condition is not met, the 

regulations do not allow us to issue a 

permit. 

Comment: The Service needs to 

clarify which Service program office 

(Ecological Services or the Migratory 

Bird Program), will be responsible for 

determining impacts and how much 

take will occur. It is important that the 

Service adopt a consistent methodology 

across regions. 

Service response: Evaluation of 

impacts will be consistent across 

Service Regions and between Service 

programs, which will all be using 

national implementation guidance (to be 

developed) addressing this and other 

aspects of permit issuance. 

Comment: Compensatory mitigation 

should not exceed the level of 

measurable impacts. 

Service response: We agree with this 

comment, but note that compensatory 

mitigation will rarely precisely 

counteract impacts to eagles. In reality, 

for the largest impacts, compensatory 

mitigation is more likely to fall short of, 

rather than exceed impacts, since it is 

difficult to replace the loss of territory 

or communal roost site with creation of 

new ones. 

Comment: If an applicant conducts 

avoidance and minimization to the 

point where take will likely be avoided, 

he will probably want a permit to justify 

his efforts, resulting in a bigger 

workload than the Service appears to be 

anticipating. 


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Service response: We now anticipate 

a larger workload than when we 

proposed the June 2007 rule, partially 

because of the demand from project 

proponents who re-design projects to 

avoid take. First, the process of 

providing them with the technical 

assistance needed to avoid the take may 

require significant staff resources from 

our Ecological Services biologists, and 

second because our Migratory Bird 

Permit Offices will still need to consider 

every permit application we receive and 

either deny or issue a permit. For this 

reason, we discourage permit 

applications from people who are not 

likely to take eagles. However, issuing 

permits to some of these applicants will 

provide a benefit: the permittees will be 

required to monitor the activity site and 

report how eagles react to the activity, 

providing us with valuable information 

on whether take that we believe is 

unlikely to occur does not in fact occur. 

Comment: Will compensatory 

mitigation be required for removal of 

nests that are of low biological value? 

Service response: We are unlikely to 

require compensatory mitigation for 

removal of nests that have very low 

biological value. 

Permit Conditions 

Comment: The public should be given 

the opportunity to comment on each 

permit after public notice. 

Service response: While bald eagles 

were listed under the ESA, the public 

was provided an opportunity to 

comment before the Service issued each 

section 10 incidental take permit that 

authorized take of eagles. That process 

is a statutory requirement of the ESA (16 

U.S.C. 1539(a)(2)(B)). The Eagle Act has 

no such requirement. While that does 

not preclude us from creating such a 

requirement under these regulations, we 

do not believe a public-comment period 

for each permit would provide an 

additional benefit to eagles that would 

justify the regulatory burden on the 

public and on our limited staff and 

resources. 

Comment: The permit must be 

specific as to how much take is 

authorized and how it will occur. 

Otherwise, the permit may 

inadvertently grant indemnity for all 

take, whether anticipated or not. 

Service response: Most permits will 

be specific as to how much take is 

authorized and how and roughly when 

it will occur. The exception will be 

programmatic permits, which will 

authorize take for large-scale and or 

long-term activities where take is 

anticipated but the exact amount, 

location, and timeframes are impossible 

to identify. Rather than ‘‘grant 

indemnity for all take,’’ programmatic 

permits will authorize only the take that 

occurs despite implementation of 

stringent ACPs designed to reduce take 

to the point where it is essentially 

unavoidable (yet anticipated). The 

overall effect of these types of permits 

will be a reduction in mortalities and 

other adverse impacts to eagles. 

Comment: Permits should not specify 

exact numbers of authorized take. 

Rather, levels of take should be 

identified regionally. 

Service response: Levels of take will 

be identified regionally in order to 

establish population thresholds up to 

which take can be authorized. However, 

each permit (except programmatic 

permits designed to reduce ongoing 

take) will authorize a specific amount of 

take to ensure that the cumulative take 

authorized under all the permits in a 

region does not exceed the regional 

population threshold. 

Comment: The time period for a 

permit should be identified. Permits 

should not exceed one year. 

Service Response: Each permit will 

have a limited tenure specified on the 

face of the permit. These final 

regulations limit the tenure for all 

permits to five years or less. Many 

projects are multi-year projects, and a 1– 

year tenure would introduce 

unnecessary uncertainty for a project 

proponent that cannot identify exactly 

when the take will occur. Receiving 

applications for the same take in 

consecutive years would also create 

more work for our permit offices 

without providing any benefit to eagles. 

That said, the rule limits permit tenure 

to five years or less because factors may 

change over a longer period of time such 

that a take authorized much earlier 

would later be incompatible with the 

preservation of the bald eagle or the 

golden eagle. Accordingly, we believe 

that five years is a long enough period 

within which a project proponent can 

identify when the proposed activity will 

result in take. 

Comment: The rule should provide 

for inspections at any hour with no 

notice from the Service. 

Service Response: The rule provides 

that the Service, or a designated agent, 

may inspect the area ‘‘where eagles are 

likely to be affected, at any reasonable 

hour, and with reasonable notice from 

the Service, for purposes of monitoring 

eagles at the site(s).’’ The purpose of the 

inspection is to determine whether 

eagles are using the site, not to surprise 

and scrutinize the permittee’s activities. 

Comment: The final rule should 

contain provisions for review, denial, 

modification, and revocation. Of 

particular concern is the potential 

situation where populations decline 

unexpectedly, or new information 

reveals the take would not be 

compatible with the preservation of the 

bald or golden eagle. 

Service response: Provisions for 

review, denial, modification, and 

revocation, and other general processes 

and procedures that apply to all the 

types of permits the Service issues are 

found in 50 CFR part 13. For that 

reason, we do not reiterate those 

provisions within each section of 

regulations that govern individual 

permit types. Regarding the scenario 

raised by this commenter, 50 CFR 

13.28(a)(5) provides that a permit may 

be revoked if ‘‘the populations of the 

wildlife or plant that is the subject of 

the permit declines to the extent that 

continuation of the permitted activity 

would be detrimental to maintenance or 

recovery of the affected population.’’ 

Comment: The rule should address 

unanticipated take by specifying that 

the permittee must contact the Service 

immediately and apply for a new 

permit. 

Service response: We have added 

language to the rule requiring the 

permittee to contact the Service if 

unanticipated take occurs. As to 

whether a new permit would be 

required, that will depend on the 

circumstances. Some situations may be 

more appropriately addressed by 

amending the existing permit or taking 

some other action. 

Monitoring 

Comment: Monitoring should not be 

required of the permittee. It is the 

responsibility of the Service. A threeyear monitoring period is overly 

burdensome and would not result in 

useful information. Public reporting is 

not accurate or timely. The Service 

should develop a research project to 

monitor eagles to obtain accurate 

information. 

Service response: The monitoring that 

will be required of the permittee is 

relatively minimal yet will serve several 

important purposes. The monitoring 

simply entails observing periodically, 

during the season(s) when eagles would 

normally be present, the area where the 

take is likely to occur and noting 

whether eagles continue to nest, roost, 

or forage there. Even this minimal 

monitoring will be important, however, 

because it will provide the Service with 

the best information available as to how 

human activities impact eagles. If we 

find that take does not occur as 

frequently as we anticipated, we can 

adjust the recommendations we provide 

in management guidelines and technical 

assistance. Also, if demand for take is 


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high enough to approach take 

thresholds, ascertaining that it did not 

occur under some permits could enable 

us to issue other permits where we 

otherwise would not. We know that 

reporting will not always be accurate, 

but even so, it is our best available 

option for garnering this data, since we 

do not have the staff and resources to 

monitor every site ourselves. 

Comment: The Service needs to 

provide methodology for monitoring. 

The Service should be more specific as 

to what information is required by 

‘‘information on eagle use of important 

eagle-use areas potentially affected.’’ 

Service Response: The monitoring 

requirements are relatively simple and 

require little in the way of methodology. 

The annual report form requires the 

permittee to submit the dates, times and 

numbers of eagle sightings at the 

important use areas where eagles are 

likely to be affected. Also, the report 

requires monitoring the site(s) 

periodically during the season that 

eagles normally breed, feed, or shelter in 

the area, at a time of day when eagles 

are most likely to be in the vicinity, if 

applicable (e.g., for communal roosts in 

the evening; for foraging areas, in the 

morning or afternoon). 

Comment: The rule should require 

that monitoring be conducted by 

professional raptor biologists. 

Permittees will not be able to ascertain 

whether eagles adopt alternative nest 

sites or how the permitted activity may 

have affected the dynamics of a 

communal roost or feeding area. 

Service response: We agree that more 

extensive monitoring would be very 

useful for purposes of understanding 

how eagles are affected by human 

activities. However, we expect that 

many permittees will not have the 

resources to hire professional biologists 

to perform that service. Our agency also 

does not have the resources to monitor 

all project sites. Therefore, the rule 

requires very minimal monitoring that 

the average person can easily perform. 

However, the rule also provides that the 

permittee must allow the Service or a 

designated representative to visit the 

area for purposes of monitoring eagle 

use. During those visits, we should be 

able to collect more extensive 

information regarding the dynamics of 

eagle behavior at the site. Although we 

do not have the capacity to carry out 

that function at the majority of permit 

sites, we can use the data we collect 

from the limited site visits to extrapolate 

eagle responses to permitted actions 

over a larger geographic scale. 

Comment: The post-delisting 

monitoring plan should be adequate for 

purposes of monitoring bald eagles. 

Service response: The PDMP is a 

national-level plan designed for an 

entirely different purpose than the 

monitoring that would be required 

under this permit regulation. The 

purpose of the PDMP is to detect 

declines in bald eagle populations that 

could trigger relisting. The purpose of 

the permittee’s monitoring requirements 

in this rule is to ascertain whether 

permitted take actually occurs. 

Comment: Is a permittee (such as an 

electric utility) only required to 

implement post-activity monitoring for 

three years after the initial construction 

of the site or for ongoing unavoidable 

take? Will its monitoring plan need 

Service approval, and will the results 

need to be furnished to the Service? 

Service response: Monitoring is 

related to the activity that is likely to 

take eagles. If a project is likely to take 

eagles during an initial construction 

phase, but take is unlikely to occur 

during the subsequent, ongoing use of 

the facility, then monitoring may be 

required for up to three years after the 

construction is completed. If the 

ongoing activity is likely to take eagles, 

then the monitoring may be required for 

up to three years after cessation of the 

activity. For programmatic permits, the 

permitted industry may develop, in 

coordination with the Service, a 

specific, more extensive monitoring 

protocol, adherence to which would be 

a condition of the permit. Otherwise, as 

discussed above, monitoring for most 

permits is relatively straightforward and 

will not require any plan that needs 

approval from the Service. Monitoring 

results will need to be reported on an 

annual basis to the Service, for as long 

as monitoring is required. 

Comment: Monitoring and report data 

should be provided to the State, 

particularly when activities could affect 

nesting results during State surveys. 

Service response: We will make 

monitoring and report data available to 

States and tribes whenever requested (to 

the degree allowable by laws such as the 

Privacy Act). As with other data we 

collect, as well as data collected by the 

States and tribes, we support the sharing 

of information that pertains to joint 

interests between our governments. 

Comment: The proposal’s reliance on 

permittee self-monitoring is misplaced 

and threatens the long-term preservation 

of eagles. A detailed plan for achieving 

compliance, consistency, and 

confidentiality is needed. The rule 

should require monitoring to be 

conducted by a disaffected third party 

approved by the Service. Permittees 

should pay into a fund for experienced, 

independent organizations to provide or 

verify data. 

Service response: We may include a 

requirement that monitoring be 

conducted by a third party as a permit 

condition for some larger projects and 

programmatic permits. However, 

although it might sometimes improve 

accuracy, we do not think it would be 

reasonable to require all permittees to 

enlist a third party to conduct the 

required monitoring. Also, we are not 

confident that enough disaffected thirdparty entities would be available to 

permittees in every location. We believe 

most permittees will try to provide 

accurate information. To increase the 

chances of that, we added language to 

the annual report form emphasizing that 

(1) filing an accurate report is a 

condition of the permit and (2) reporting 

the absence of eagles from the 

monitoring site will not, by itself, affect 

the continued validity of the permit. 

Application and Issuance Process 

Comment: The proposed rule requires 

the permit applicant to provide a 

certification that the proposed activity is 

in compliance with local, State, and 

Federal laws. What is meant by 

‘‘certification’’? Who is responsible for 

this evaluation? 

Service response: We meant that the 

application form would require the 

applicant to sign a statement that the 

proposed activity is in compliance with 

other applicable laws. However, we 

have revised the draft application form. 

It no longer requires that certification, 

but instead asks the applicant to state 

whether he or she has obtained the State 

or tribal authorizations necessary to 

conduct the activity. All of our 

migratory bird and eagle-related permits 

contain the standard condition that the 

Federal authorization is not valid unless 

the activity complies with all other 

applicable laws, including State and 

local laws. Permits issued under this 

regulation will include that condition 

and clarify that the activity must also be 

in accordance with any applicable tribal 

laws. 

Comment: Can a landowner apply for 

a permit for multiple takes in an entire 

area of ownership that is not 

contiguous? 

Service response: A landowner can 

apply for as many takes as he or she 

wants in different locations. However, 

each take we authorize will have to 

meet the permit-issuance criteria (e.g., it 

must be compatible with the 

preservation of the eagle, cannot be 

practicably avoided, etc.). Depending on 

the particular circumstances and in 

order to ensure that issuance criteria are 

met, we may authorize only a portion of 

the requested take (or all or none). 


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Comment: The Service should be 

required to coordinate with State 

wildlife agencies when issuing permits. 

The Service should work with the States 

to develop implementation guidance to 

avoid incompatibilities. 

Service response: We intend to work 

with States to establish protocols for 

coordination between the Service and 

States during the permit process. 

Comment: The rule should contain 

timelines for how long the Service can 

take to issue permits. Projects are often 

subject to very specific construction and 

financing constraints. 

Service response: Timelines for 

permit issuance do not belong in a 

regulation, but rather in internal 

implementation guidance. We plan to 

include target processing times in the 

implementation guidance associated 

with this permit program. 

Comment: The Service should 

establish the expectation for and a 

process of pre-application consultation 

to direct potential applicants, establish 

the need for a permit, and protect the 

eagle resource. It is essential that the 

Service make technical assistance 

readily available to advise project 

proponents regarding how to avoid 

impacts and to help in preparation of 

permit applications. However, it 

appears that neither the Service nor the 

States have the resources for technical 

assistance and consultation with 

applicants. Who will be providing this 

service (and how) needs to be 

addressed. 

Service response: We agree that 

technical assistance is a vital customer 

service. It enables us to provide our best 

advice as to whether take will occur and 

how to avoid or minimize any take, and 

at the same time reduces uncertainty for 

the public. It will also reduce 

unnecessary permitting workload and 

better protect eagles. For these reasons, 

we are committed to providing technical 

assistance early in the process to the 

extent our limited staffing and resources 

will allow. 

Comment: The requirement that the 

applicant be responsible for field 

surveys and providing data on the 

location of nests and important-use 

areas is overly onerous and would make 

it difficult to apply for a permit. 

Service response: We removed this 

language from the regulation because 

many projects will not require field 

surveys and we felt that language might 

intimidate people whose activities were 

relatively straightforward. Nevertheless, 

it is the applicant’s responsibility to 

provide us with a complete application 

before we can process it. We will assist 

those in need to the degree our staffing 

and resources allow. 

Comment: Provisions should be 

added for expedited permit issuance for 

emergency situations. Under the ESA, 

there are provisions for emergency take 

that the Service should adopt for eagles, 

wherein the take can be documented 

through emergency consultation done 

after the emergency response has been 

completed. 

Service response: The Eagle Act does 

not allow the Service to authorize bald 

eagle take without issuing a permit (16 

U.S.C. 668a). We will make every effort 

to expedite issuance of a permit in 

situations where take is unavoidable 

due to an emergency. If circumstances 

are such that a permit cannot be issued 

prior to the take in cases of genuine 

emergencies despite the best efforts of 

the parties involved, we are unlikely to 

refer such take for prosecution under 

the MBTA or the Eagle Act. Procedures 

for addressing emergency take will be 

addressed in implementation guidance. 

Comment: Any eagle take permit must 

be reviewed under section 106 of the 

National Historic Preservation Act 

(NHPA) because any such take has the 

potential to affect historic properties 

and culturally significant sites. Eagle 

nests and other sites where eagles are 

present may be considered culturally 

significant to Native Americans as well 

as other American citizens, requiring 

the Service to conduct a culturalresource assessment prior to issuing 

these permits. 

Service response: We appreciate this 

comment, and will comply with Section 

106 on a case-by-case basis when 

issuing permits that have the potential 

to result in effects on historic properties. 

We also plan to consult with 

appropriate stakeholders, including 

tribes, to develop State or regional 

agreement to govern how the Service 

will comply with the NHPA when 

issuing permits to take eagles in specific 

States or regions. 

Comment: Even if not on tribal land, 

eagles, eagle nests, and other sites have 

cultural significance to many Native 

American tribes and tribal members. For 

that reason, tribes should be consulted 

before any eagle take permit is issued. 

Service response: Before issuing a 

permit, we will consult with federallyrecognized tribes if issuance of the 

permit may adversely affect their 

traditional tribal activities, practices, or 

beliefs; or if issuance of the permit may 

adversely affect the tribe’s ability to 

regulate, protect, provide services to, or 

otherwise govern their tribal 

membership, lands and resources. We 

plan to work with tribes to develop 

guidance for us to use when processing 

permits to manage and resolve tribal 

concerns. 

Comment: The proposal implies that 

permits will never be denied because 

the number of anticipated applications 

(300) is the same as the number of 

permits the Service anticipates issuing 

(300) (see discussion under Regulatory 

Planning and Review at 72 FR 31148). 

Will the Service not deny any permit 

applications? 

Service response: Our intent is to use 

technical assistance at the Field Office 

level to minimize potential take from 

proposed activities. Service Field Office 

biologists will assist project proponents 

by assessing whether take is likely to 

occur and how it can be avoided or 

minimized. The Field Office should also 

inform applicants if permits will not be 

available to them because they do not 

meet the issuance criteria or because 

take thresholds for the species preclude 

further issuance of permits. If this 

process works successfully, most people 

who actually submit applications for 

permits will qualify for a permit. Thus, 

the pre-application process will reduce 

take and the need for permits, and serve 

as a filter through which qualifying 

applicants will pass before submitting a 

completed application. For that reason, 

we anticipate issuing permits for the 

majority of the complete applications 

we receive. 

We have increased our estimates of 

permit applications received and 

permits issued to 1,168 applications 

received and 910 permits issued, 

annually, under both new permit 

regulations. 

Comment: The Service should 

consider ways to allow its Ecological 

Services Field Office staff to handle bald 

eagle and golden eagle permitting on 

behalf of the Migratory Birds Division. 

Field Office biologists have experience 

and established relationships with 

project proponents such as State 

departments of transportation. Also, 

having to work with multiple offices 

will place a burden on applicants. 

Permitting should be done in 

conjunction with any ESA consultation 

that needs to be done as part of the 

proposed project. 

Service response: We agree that 

technical assistance should be 

streamlined where feasible to address 

the requirements necessary to comply 

with more than one regulatory program. 

In accordance with Service Mitigation 

Policy (501 FW 2), we will provide 

assistance to project proponents in 

crafting conservation measures early in 

the planning phases of projects so that 

all conservation mandates are integrated 

into the project rather than introduced 

later in the planning process. In many 

cases, other trust resources such as 

wetlands or endangered and threatened 


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species may be affected in addition to 

eagles. Many requests for eagle-take 

authorization will be associated with 

projects that have a Federal nexus, 

including energy, transportation, water, 

and restoration projects, and thus could 

be assessed in conjunction with the 

section 7 consultation process. The 

Service’s Ecological Services Field 

Office staff provide conservation 

planning assistance that uses a 

streamlined approach to incorporate the 

requirements of multiple environmental 

reviews into a single integrated process. 

For example, as provided in our 

Habitat Conservation Planning 

Handbook, we recommend ‘‘integration 

of the National Environmental Policy 

Act (NEPA) analysis with the other 

planning and environmental review 

requirements’’ so that ‘‘all procedures 

run concurrently rather than 

consecutively.’’ Thus, for projects that 

involve other planning and review 

requirements in addition to under the 

Eagle Act, the Field Offices would 

integrate the assessment of the impacts 

of the eagle take authorization into the 

NEPA process. 

After projects are designed with the 

technical assistance provided by our 

Field Offices, the project proponent will 

submit his or her completed application 

to the Regional Migratory Bird Permit 

Office for processing. 

Comment: Permits should be 

expedited for recipients of technical 

assistance letters. Recipients of 

technical assistance letters that 

authorized activities inconsistent with 

the National Bald Eagle Management 

Guidelines may be subject to Eagle Act 

prosecution. 

Service response: Technical assistance 

letters did not provide any authorization 

to take eagles. The only means available 

to gain authorization to take eagles 

under the ESA was by means of the 

permit issued under section 10 or an 

incidental take statement issued under 

section 7. The role of technical 

assistance letters was to inform the 

landowner or project proponent that the 

Service did not consider take likely to 

occur. Generally we issued these letters 

after providing technical assistance to 

the project proponent that included 

recommended modifications to the 

planned activity to minimize the 

possibility of take, and after the project 

proponent agreed to incorporate the 

measures. Technical assistance letters 

do not authorize take should it occur 

despite the recommended measures; 

only a permit or incidental take 

statement could absolve a person of 

liability for take of eagles. In situations 

where these letters were issued and the 

activity proceeds, there is no Eagle Act 

violation unless an eagle is disturbed or 

otherwise taken, regardless of whether 

the activity was consistent with the 

National Bald Eagle Management 

Guidelines. 

If take does occur, the Service is 

unlikely to prioritize enforcement 

actions against a party that followed the 

Service’s written advice (in the form of 

the technical assistance letter) as to 

what steps were necessary to avoid 

taking eagles. Furthermore, although 

take of bald eagles under the Eagle Act 

can be authorized only by permit, it is 

not our goal to encourage applications 

for permits to cover take of eagles that 

is in fact very unlikely to occur. We 

believe our conservation mission is 

better served by helping the public 

reduce the likelihood of take, and to 

provide permits in appropriate 

circumstances where take is likely (and 

cannot practicably be avoided). 

Comment: The approval process 

should give ‘‘substantial weight’’ to 

findings of consistency with a State 

management plan where such plans are 

consistent with the Eagle Act’s goal of 

preservation of the eagle (examples: FL 

and MD Chesapeake Bay Critical Area 

Program). 

Service response: We encourage 

consistency with State management 

plans. However, the need for Eagle Act 

authorization is not based on State landuse planning or habitat protection. 

Though we recognize the vital 

importance of those tools in protecting 

eagles, the Eagle Act directly protects 

eagles, eggs, and nests, rather than 

habitat. State management plans such as 

the ones cited by the commenter are 

designed to help guide development 

away from areas that may be more 

important to eagles or other wildlife or 

natural resources. To the degree that a 

take that is consistent with a State 

management plan may be more 

compatible with the preservation of the 

bald eagle or the golden eagle, we are 

more likely to authorize it. However, we 

will evaluate it under the statutory 

mandate of the Eagle Act rather than a 

State management plan. At the same 

time, we plan to establish protocols for 

coordination with States and tribes 

during the permit review process. Some 

will desire a greater degree of 

coordination than others, but we will 

involve the States and tribes in 

developing processes for coordination 

between agencies. 

Comment: The Service needs to 

address how it will ensure compliance 

with State regulations, particularly in 

light of the need to protect local 

populations. Because most States do not 

have a regulatory process to address 

much of this take, the Service should 

clearly state that its Regional Offices 

will coordinate closely with and receive 

approval (if requested) from any State 

where take would be authorized. Also, 

States need to be kept apprised of the 

level of take currently authorized in 

each management population. A 

nationwide database accessible to the 

States or regular (e.g., bi-weekly) reports 

to the States may be needed. 

Service response: As discussed above, 

we will coordinate with States and 

tribes as appropriate. The level of 

coordination may differ from State to 

State (and tribe) depending to some 

degree on how closely each wants to be 

involved. However, we do not currently 

envision seeking approval from the 

State or tribe for each permit we issue. 

The permit is a Federal authorization for 

an impact to eagles that would 

otherwise be prohibited under Federal 

law. If the State or tribal law also 

prohibits the action, the Federal permit 

does not insulate the permittee from 

liability under such State and tribal 

laws. In addition to our direct 

communications with States and tribes, 

we will try to ensure that permit 

applicants understand the need to 

comply with State and tribal laws and 

regulations. 

We like the idea of a database we 

could make available to States and 

tribes, and may pursue that option if we 

have the resources to do so. Biweekly 

reports are probably not a realistic 

option due to limited staffing and busy 

schedules, but are not out of the 

question. At a minimum, we anticipate 

working with the Flyway Nongame 

Technical Committees to keep them 

apprised of applications that are likely 

to be of high interest, as well as pending 

and issued permits in their States. We 

hope to establish a process comparable 

to the Flyway structure, but comprised 

of representatives from tribal wildlife 

agencies to allow us to share 

information with tribes in a coordinated 

manner. 

Comment: To ensure that State 

programs for eagle management are 

considered before permits are issued, 

the Service should develop a 

comprehensive compilation of State 

regulations for both species, including 

how take is defined and regulated in 

each State, and it should be published 

in the final EA. 

Service response: We agree that a 

compilation of State and tribal 

regulations could be useful and have 

included a simplified version of such in 

Appendix B of the FEA. However, to do 

full justice to the complexity and 

nuances of the different approaches 

taken by States and tribes in protecting 

eagles would require considerably more 


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time, effort and resources than we have 

been able to supply for such an effort at 

this time. There is enormous variation 

in how States and tribes manage eagles. 

Some have no regulations that pertain to 

eagles specifically, some are habitat 

management plans, some are permit 

programs, but the prohibitions are not 

the same as Federal prohibitions, while 

others have similar or even stricter 

prohibitions but completely different 

issuance criteria for permitting. This 

high degree of variability may be 

difficult to capture in a single, userfriendly compilation. More effective, at 

least for the short term, will be for each 

Service Regional Migratory Bird Office 

to familiarize themselves with the laws 

and regulations of States and tribes 

within their respective regions that 

apply to eagle management. We already 

operate in this manner when issuing 

other types of permits. For example, we 

will not issue a permit to possess a redtailed hawk in Hawaii, because Hawaii 

regulations do not allow raptors within 

the State. 

Comment: The government should 

give the tribes notice of all pending and 

future applications for permits, 

particularly where eagles may be 

affected on or near tribal lands. 

Service response: As with States, 

some tribes will want closer 

coordination with us than others. We 

plan to work with each tribe that is 

interested to establish implementation 

protocols regarding the level of 

coordination desired by the tribe. 

Comment: The regulation needs to 

include stronger, more explicit language 

regarding the need to be compliant with 

tribal law. 

Service response: The requirement to 

be in compliance with other laws and 

regulations is a standard condition of all 

Service Migratory Bird permits and it is 

spelled out on the face of each permit. 

However, to ensure this condition is 

given sufficient weight, we have added 

the following new regulatory language 

to the permit conditions in both § 22.26 

and § 22.27: ‘‘The authorization granted 

by permits issued under this section is 

not valid unless you are in compliance 

with all applicable Federal, tribal, State, 

and local laws and regulations 

applicable to take of eagles.’’ 

Comment: The Service should issue 

programmatic permits to the Corps, 

other Federal agencies, and State 

agencies, allowing them to provide take 

authority subject to their own programs 

where they are consistent with the Eagle 

Act’s requirements. 

Service response: Our ability to 

delegate permit authority to outside 

agencies is limited because the Eagle 

Act does not allow take of bald eagles 

unless a permit is procured from the 

Secretary of the Interior. However, 

within our statutory authority and to the 

degree that is compatible with the 

preservation of eagles, we intend to 

explore ways of streamlining the permitissuance process, which might include 

issuing a ‘‘Master permit’’ to other 

agencies, allowing them to allocate take 

authorization where needed. One of 

many complicating factors is that 

requests for permits may exceed what 

would be compatible with eagle 

preservation in some areas, in which 

case the issuance criteria governing 

prioritization to certain interests (safety 

emergencies, Native American religious 

needs, and so forth) will come into play. 

If permits are ‘‘re-distributed’’ by a third 

party, the coordination needed to ensure 

the prioritization issuance criteria are 

met could be rather challenging. 

Programmatic Permits 

Comment: The June 2007 proposed 

rule suggested that permits for lethal 

take would only be available if the take 

was unavoidable and best management 

practices (BMPs) are being 

implemented. The proposed definition 

of ‘‘unavoidable’’ is flawed because it 

relies on industry-accepted measures for 

avoiding take, but in most 

circumstances, industry-accepted 

measures will not be all that can be 

done to avoid take. Are the BMPs 

limited to those developed specifically 

for the purpose of reducing eagle 

mortality? What would happen if 

different BMPs proscribe conflicting 

actions? Clarification is needed as to 

what constitutes lethal take; disturbance 

can sometimes result in eagle 

mortalities. 

Service response: Our reference to 

BMPs caused understandable confusion 

because it was interpreted to mean any 

type of industry-accepted BMPs for the 

conduct of the activity, regardless of 

whether the BMPs were designed to 

reduce eagle mortalities or serve some 

entirely unrelated function (such as 

human safety and hygiene). Our intent 

was that the BMPs would have to be 

designed to reduce eagle mortalities and 

other take of eagles. We have revised 

this part of the rule. Rather than 

referencing BMPs, we are clarifying that 

we will work with industries to develop 

what we are calling ‘‘Advanced 

Conservation Practices’’ (ACPs), 

designed specifically to reduce take of 

eagles (and sometimes other migratory 

birds). Implementation of ACPs will 

qualify some entities for programmatic 

take permits, and can be used to 

authorize ongoing unavoidable 

disturbance as well as unavoidable 

mortalities. The ACPs will be developed 

by the applicant in coordination with 

the Service and will be scientificallysupportable measures representing the 

best-available techniques designed to 

reduce disturbance and ongoing 

mortalities to a level where remaining 

take is unavoidable. 

Comment: Will lethal take permits be 

issued for industries that have no such 

measures? 

Service response: These regulations 

allow us to authorize take that results in 

mortality as long as the issuance criteria 

for a standard permit under this section 

are met, but would not allow us to issue 

a permit for programmatic take without 

development and implementation of 

ACPs. 

Comment: Programmatic permits will 

increase mortalities by giving the 

perpetrators a ‘‘free pass.’’ 

Service response: The design and 

intent of programmatic permits is 

exactly the opposite of what the 

commenter suggests. Programmatic 

permits will be issued and valid only 

where the applicant/permittee 

implements rigorous conservation 

measures to reduce take to the point 

where it is unavoidable. 

Comment: The regulation should be 

clear that development of programmatic 

permits will entail coordination with 

States where the activity will occur. 

Service response: We envision close 

coordination with States and tribes 

when developing programmatic permits. 

We will address such in forthcoming 

implementation guidance, which we 

intend to develop in coordination with 

States and tribes, as well as the general 

public, via a public comment period. 

Comment: The Service should codify 

programmatic permit conditions 

through the Federal Register process. 

Service response: Programmatic 

permits are designed to reduce 

mortalities and other take. In our view, 

a public comment period for each 

programmatic permit would not provide 

an additional benefit to eagles sufficient 

to justify the delay, regulatory burden, 

and the substantial additional resources 

from our agency needed to navigate the 

Federal Register process. 

Comment: Programmatic permits are 

not acceptable unless the Service retains 

the authority to decide what constitutes 

advanced conservation practices, 

required mitigation, and how much take 

is unavoidable. 

Service response: Although we will 

develop ACPs in coordination with 

applicant industries and other entities, 

the Service will make the final decision 

as to what measures constitute the ACPs 

that will serve as required conditions of 

programmatic permits. 


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Comment: Current best management 

practices such as those developed by the 

Avian Power Line Interaction 

Committee (APLIC) should be the 

baseline, and more should not be 

required to get a permit. 

Service response: The voluntary 

recommendations for avoiding avian 

mortality developed by APLIC are much 

more comprehensive than any we are 

aware of for other industries. However, 

most utilities that have adopted them 

have done so in a relatively piecemeal 

manner, using some recommendations 

in some areas, applying others in 

different places, and very rarely 

implementing all the measures that 

could be used to reduce eagle 

mortalities. Furthermore, there are 

practices over and above what APLIC 

recommends that could further reduce 

take in some situations. Programmatic 

permits are premised on the permittee 

implementing all achievable measures 

to reduce take to the point where it is 

unavoidable. 

Comment: Programmatic permits 

must include provisions to safeguard 

local populations (geographic limits) 

and mechanisms to restrict permits 

when and where populations decline. 

Programmatic permits should contain 

provisions subjecting them to revocation 

if eagle take resulting from the activity 

is greater than anticipated. 

Service response: We have added the 

following language to both permit 

regulations: ‘‘The Service may amend, 

suspend, or revoke programmatic 

permits if new information indicates 

that revised conditions, suspension, or 

revocation is necessary to safeguard 

local or regional eagle populations.’’ 

Comment: Programmatic permits 

should be issued for multi-year periods 

to provide certainty. 

Service response: Most programmatic 

permits will be issued for the full five 

years that a permit can be valid under 

these regulations. Furthermore, renewal 

of programmatic permits will have 

priority over other permits for eagle take 

except to address safety emergencies 

and meet the religious needs of tribes. 

Comment: There should be no time 

limit for programmatic permits because 

they are based on the premise that there 

is nothing more the permittee can do to 

minimize take. 

Service response: We expect that 

circumstances will often change such 

that the original ACPs may no longer be 

considered the most effective measures 

that could be adopted. There are likely 

to be technological advances in some 

industries that would warrant adoption 

of new, more effective conservation 

measures. Also, new information 

regarding eagle biology, behavior, and 

responses to the permitted activity may 

warrant re-examination of the effects of 

the permitted activity and re-evaluation 

of the permit conditions. 

Comment: Programmatic permittees 

should not be subject to enhanced 

monitoring and reporting requirements; 

so long as the ACPs are being carried 

out, no further information should be 

necessary for the Service to know as far 

as population impacts are concerned. 

Service response: See our response to 

the comment above. Also, the 

monitoring we will require for 

programmatic permits will not be largescale population monitoring (such as 

the bald eagle post-delisting monitoring 

plan). Rather, the monitoring required of 

programmatic permittees will be 

focused on assessing how effective the 

ACPs actually are, how much take is 

actually occurring, and overall eagle 

presence and use of the project area. 

This type of information will be critical 

for evaluating the impact of the permit 

program on eagles, as well as for crafting 

future guidance for minimizing human 

impacts outside the permitting program 

as necessary to maintain healthy eagle 

populations. 

Comment: The final rule must provide 

for the situation where there are no 

practicable ACPs that can mitigate 

ongoing, unavoidable take. 

Service response: There are probably 

very few situations where nothing can 

be done to reduce impacts to eagles. All 

sorts of factors will be in play, such as 

timing and siting of the activity; timing 

and siting of surrounding activities 

being conducted by different entities 

that can come to the table; technological 

advances; additional staff; and other 

factors. Creativity may be required in 

some cases to find effective, achievable 

measures. However, in the rare situation 

where all parties agree that nothing can 

be done to decrease the take from an 

activity that is a legitimate interest in a 

particular locality, compensatory 

mitigation can be used, and the 

measures required for compensatory 

mitigation would need to result in a 

reduction of take at a different location 

and/or from a separate activity. Those 

measures would be the ACPs for the 

permit. 

Comment: The final EA and 

regulation should make clear that the 

permitted entity may implement 

measures that do not fully avoid or 

minimize take where doing so is not 

within the authority of the entity. 

Service response: Generally, if 

measures to reduce take are outside the 

authority of the entity, then liability for 

the take rests elsewhere too. Usually, 

whoever has the authority to affect the 

level of take will be the entity 

responsible for the take. There will be 

some situations where one industry 

takes eagles in part because of the 

actions of another entity. Even then, 

however, the liability would usually be 

shared. An example would be a railroad 

company with trains that sometimes 

strike bald eagles that are attracted to an 

artificially baited site nearby. The 

person feeding the eagles may be in 

violation of the Eagle Act because of its 

prohibition on disturbance, since the 

feeding interferes with normal feeding 

behaviors and results in injury of eagles, 

which meets the definition. However, 

the railroad company is also in 

violation, since its trains are actually 

killing eagles. In a situation this 

straightforward, enforcing against the 

feeder would be appropriate, and would 

reduce eagle mortality to a point where 

the only remaining, effective measures 

to further reduce take would be the 

railroad company’s responsibility. If one 

entity’s actions are not themselves a 

violation but do contribute to a violation 

on the part of another entity, we 

envision that a dialogue would be 

necessary between the two actors to 

arrive at joint measure to reduce take. 

We may aid in the process of dialogue 

if we have the resources, but the 

responsibility to comply with the Eagle 

Act preceded the existence of this 

permit program, and remains with the 

actors regardless of the availability of 

these permits. 

Comment: The process for developing 

industry metrics should be set forth in 

the rule. 

Service response: At this time, we 

have not established a process for 

developing industry metrics. We plan to 

do so as part of crafting implementation 

guidance. There will be an opportunity 

for public notice and comment before 

any such process is formalized. 

Comment: The final rule should make 

clear that industry standards can be 

developed over time as various entities 

from different locations (with different 

conditions) apply for permits, and it is 

not necessary for the entire industry to 

be regulated with a national standard. 

Service response: Yes, our intent 

mirrors what the commenter suggests: 

we anticipate that ‘‘an industry’’ will 

often be a single large utility, or one 

major railroad line, or one 

transportation agency. Circumstances 

for that single entity may be quite 

different than for a comparable entity in 

another part of the U.S., warranting 

ACPs that might be ineffective or 

counterproductive if applied elsewhere. 

‘‘An industry’’ could also be an 

association of participating smaller 

entities who will be permitted under the 

standards developed by the association. 


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We agree that industry standards will 

evolve over time. After several 

programmatic permits are in place for 

one type industry, we may, in 

developing ACPs for another entity 

within the same industry, arrive at 

superior measures that can be achieved. 

If appropriate, those can be applied to 

the earlier programmatic permits when 

those permittees apply for renewal. 

Comment: Programmatic permits 

should not include an estimate of 

mortality because: (1) it is too difficult 

to estimate; (2) even if the ACPs are 

effective, increasing eagle populations 

can still result in increased mortality, 

and (3) by definition, the ongoing 

operations will improve mortality rates. 

Service response: We think estimates 

of mortality are possible. The Eagle Act 

requires that we determine that take is 

compatible with eagle preservation prior 

to issuing a permit. Therefore, if data on 

effects of an activity on eagles are so 

spotty that no estimate is possible, a 

permit may not be appropriate. The only 

activities that will qualify for 

programmatic permits are those that 

have been studied fairly rigorously in 

order to develop comprehensive ACPs 

to reduce take to the maximum level 

achievable. This level of research 

should typically yield data sufficient to 

develop reasonable estimates of eagle 

mortality before and after 

implementation of the ACPs. 

Comment: Programmatic permits 

should not be issued for unlimited take; 

otherwise there will be no incentive to 

pursue additional methods to minimize 

take. 

Service response: Programmatic 

permits will all include estimates of 

take. To ensure that take does not 

continue to be authorized if it exceeds 

the estimate and is incompatible with 

the eagle preservation, we added a 

condition to each regulation that we can 

amend, suspend, or revoke a 

programmatic permit if ‘‘new 

information indicates that revised 

conditions, suspension, or revocation is 

necessary to safeguard local or regional 

eagle populations’’ (§ 22.26(c)(7) and § 

22.27(b)(8)). 

Comment: It should be possible to 

meet the requirement that an applicant 

demonstrate reduced mortality before 

getting the permit via scientificallybased predictions, rather than requiring 

field data; many operations will not 

have good historical baseline with 

which to compare data. 

Service response: If an applicant for a 

programmatic permit cannot establish a 

historical baseline, we may use 

estimates of take based on predictions 

generated by sound scientific research. 

This applies to development of ACPs, as 

well. It may not be feasible for an 

industry to demonstrate the 

effectiveness of the ACPs or to fully 

implement them prior to obtaining the 

permit. We envision that in many cases, 

programmatic permits will be issued 

before all ACPs are completely 

implemented; however, the validity of 

the permit is conditioned on 

implementation of ACPs where the take 

occurs. In other words, if ACPs are 

phased into a project, any take that 

occurs outside of the area where the 

required ACPs have not been 

implemented, is not authorized by the 

permit. 

Comment: Programmatically 

authorizing eagle mortalities under the 

Eagle Act is of limited value to the 

power industry because utilities will 

still be liable under the Migratory Bird 

Treaty Act for incidental take of other 

birds, since no permit is available for 

incidental take under the MBTA. 

Service response: No permit is 

currently available to authorize 

incidental take under the MBTA. 

However, many of the ACPs that would 

minimize eagle take will also reduce 

other avian mortalities with the result 

that utilities that implement the ACPs 

under these Eagle Act regulations will 

minimize take of other migratory birds 

in addition to eagles, decreasing their 

liability under the MBTA. The Service 

focuses its enforcement resources on 

investigating and prosecuting 

individuals and companies that take 

migratory birds without regard for the 

consequences of their actions and the 

law, especially when available 

conservation measures have not been 

implemented. 

Comment: It would be impossible to 

demonstrate that all avoidable eagle 

mortality has been eliminated. 

Recommended practices cannot 

completely eliminate the risk of 

mortality. Programmatic permits should 

not be based on a standard of 

‘‘unavoidable’’; rather, they should be 

based on the practicability standard 

applied to individual permits. 

Service response: We agree it would 

be impossible to demonstrate that all 

avoidable eagle mortality has been 

eliminated. What we expect instead is 

that the permittee fully implement the 

ACPs agreed to by the Service as 

conditions of the permit, which are 

measures designed to reduce take to the 

maximum degree achievable. The 

standard for programmatic permits is 

higher than the practicability standard 

applied to ‘‘individual’’ permits because 

programmatic permits authorize more 

take on a larger scale than individual 

permits. Where an individual 

permittee’s required conservation 

measures will factor in the ‘‘cost of 

remedy comparative with proponent 

resources,’’ a programmatic take permit 

will be available only if the applicant 

can implement all available, 

technically-achievable measures to 

reduce take. We believe this higher 

standard is necessary to protect eagles 

from large-scale and cumulatively 

significant take. 

Comment: Will the development of 

programmatic permits be subject to 

NEPA? A full environmental analysis 

must be done on a case-by-case basis for 

programmatic permits. 

Service response: Programmatic 

permits will each be subject to NEPA. 

Comment: The regulations should 

include the requirement that industry 

standards required for programmatic 

permits must specifically include 

facility-siting criteria. 

Service response: The location of 

facilities often can have significant 

impacts to eagles (e.g., wind farms), and 

some industries may be able to reduce 

take substantially by selecting particular 

sites over others. However, for other 

industries or entities seeking 

programmatic permits, location of 

facilities may not be a primary factor in 

reducing eagle take, and for that reason 

we have not included language in the 

regulations to require facility siting 

criteria as conditions of the permit. 

However, we intend to ensure that siting 

criteria are emphasized in the 

implementation guidance that we will 

develop for programmatic permits and 

adopted where applicable. 

Definitions 

Comment: Adding ‘‘destroy’’ to the 

‘‘take’’ definition enlarges the statutory 

definition of ‘‘take,’’ but the Service has 

no authority to do so. The Service 

should say what the intended effect is 

of adding ‘‘destroy’’ to the definition of 

‘‘take.’’ 

Service response: We have the 

authority to define ‘‘take’’ in a way that 

includes more than just the specific 

examples Congress included in the 

statutory definition. The Eagle Act, 

expressly states ‘‘take includes also 

pursue, shoot, shoot at, poison, wound, 

kill, capture, trap, collect, molest or 

disturb.’’ 16 U.S.C. 668c (emphasis 

added). If Congress had intended to 

restrict the definition to the terms 

included in the Act, it would have 

stated what take means, not what it also 

includes. The intended effect of adding 

‘‘destroy’’ is to clarify the meaning of 

‘‘take’’ in a way consistent with 

Congressional intent. Legislative history 

demonstrates that the Eagle Act was 

intended to protect nests from 

destruction, and we have previously 


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interpreted ‘‘take’’ to include 

‘‘destruction.’’ However, as written, the 

statutory definition of ‘‘take’’ does not 

include any term that explicitly applies 

to nest destruction. Therefore, we are 

adding ‘‘destroy’’ to the regulatory 

definition to codify our long-standing 

informal interpretation and to ensure 

that the public has adequate notice of 

this interpretation. 

Comment: By defining ‘‘important 

eagle-use area,’’ the Service has gone 

beyond its statutory authority. The 

definition ‘‘appears to cast a wide 

regulatory net over areas that may be 

used by eagles’’ by implying that eagle 

take permits will be required for 

activities within these areas. Also, who 

will determine what is ‘‘essential’’ to the 

viability of the eagle? What if the 

important eagle-use area is on someone 

else’s property? 

Service response: Defining a ‘‘term of 

art’’ is not the same as regulating it. 

Sometimes, as in this case, a definition 

can be used in order to refer to multiple 

objects by applying a single name to 

them as a group, eliminating the need to 

reiterate each component of the group 

whenever they are referenced. 

In this case, because eagles can only 

be disturbed if their breeding, feeding, 

or sheltering behaviors are substantially 

interfered with, disturbance is likely to 

occur near important breeding, feeding, 

and roosting areas. Therefore, in 

assessing whether disturbance is likely 

to occur, it is logical to evaluate the 

relationship between the potentially 

disturbing activity and the important 

breeding, feeding, and sheltering areas. 

To more succinctly address this 

concept, we will use the term 

‘‘important eagle use-area’’ to refer to 

one or more of the areas where eagles 

will potentially be disturbed by an 

activity. Naming this term in no way 

extends our regulatory reach over these 

areas, but rather provides a logical 

means to evaluate potential take. It does 

not matter on whose property the 

important eagle-use area is located; the 

important eagle-use area is not being 

regulated. What is regulated are certain 

impacts of an activity on eagles. 

Finally, what is ‘‘essential’’ to the 

viability of the site for breeding, feeding, 

and sheltering eagles will depend on the 

various factors that affect the degree to 

which eagles depend on the site. Those 

best able to evaluate what is ‘‘essential’’ 

are likely to be State and Federal 

biologists or other eagle experts. Many 

important eagle-use areas are welldocumented, and even where not 

specifically documented, bald eagles are 

relatively well-surveyed, and much is 

known about behaviors of eagles in 

particular localities. 

Comment: Additionally, the terms 

within the phrase ‘‘important eagle-use 

area’’ need to be defined (e.g., ‘‘foraging 

area,’’ ‘‘communal roost site’’). 

‘‘Foraging area’’ should be defined 

narrowly to mean only those areas used 

during migration and wintering periods 

at traditionally-used sites, perhaps as 

those ‘‘containing traditionally-used 

concentrations of preferred prey.’’ 

Service response: We agree that 

defining ‘‘foraging area’’ and 

‘‘communal roost site’’ would be helpful 

and we have done so, as follows: 

‘‘foraging area’’ means ‘‘an area where 

eagles regularly feed during one or more 

seasons’’; ‘‘communal roost site’’ means 

‘‘an area where eagles gather repeatedly 

in the course of a season and shelter 

overnight and sometimes during the day 

in the event of inclement weather.’’ Not 

all foraging areas and communal roost 

sites are important enough such that 

interfering with eagles at the site will 

cause disturbance (resulting in injury or 

nest abandonment). Whether eagles rely 

on a particular foraging area or 

communal roost site to that degree will 

depend on a variety of circumstances— 

most obviously, the availability of 

alternate sites for feeding or sheltering. 

Comment: ‘‘Important eagle-use 

areas’’ should include migration 

corridors. 

Service response: We agree that take 

of eagles within migratory corridors is a 

significant concern with regard to 

certain activities, particularly windpower facilities. However, we think the 

majority of applicants for individual 

permits will not be engaging in 

activities that are likely to take eagles in 

migration corridors, so have left them 

out of the definition of ‘‘important 

eagle-use areas.’’ 

Comment: ‘‘Nest’’ should be defined 

more narrowly than was proposed, to 

account for whether the structure was 

ever used, has been abandoned, or is 

occupied by great-horned owls, etc. The 

proposed definition is inconsistent with 

the five-year period specified in the 

Guidelines after which a nest can be 

considered abandoned for purposes of 

maintaining the buffers recommended 

in the Guidelines. The definition should 

limit nests to those that are maintained 

or used within twelve months. 

Service response: The Guidelines do 

not define a nest as ‘‘abandoned’’ after 

five years. The Guidelines suggest that 

buffers may no longer be warranted after 

five years of disuse because the 

likelihood of disturbing eagles is 

decreased by that point. However, under 

the Guidelines, the term ‘‘nest 

abandonment’’ has no relation to that 

five-year period. The definition of ‘‘nest 

abandonment’’ in the Guidelines does 

not necessarily entail permanent 

rejection of the nest. In fact, the 

Guidelines specifically state that ‘‘nest 

abandonment occurs when adult eagles 

desert or stop attending a nest and do 

not subsequently return and 

successfully raise young in that nest for 

the duration of a breeding season.’’ 

NBEMG, p. 17 (emphasis added). 

We based the definition of ‘‘eagle 

nest’’ on the existing regulatory 

definition of ‘‘golden eagle nest’’ (50 

CFR 22.3), which has no expiration 

date. As we note in the Guidelines, the 

probability of disturbance occurring at a 

nest decreases the longer the nest goes 

unused. However, it would be arbitrary 

to state a time limit after which an eagle 

nest no longer meets the definition of a 

nest, given that suitable nest sites are 

limited in many areas of the country 

and are often re-occupied by eagles after 

many years of disuse. The definition 

provided by this rule is consistent with 

the long-standing definition of golden 

eagles nests and better satisfies the 

statute’s intent to protect eagles by 

protecting nests: until the structure is no 

longer ‘‘readily identifiable as a 

structure that is built, maintained, or 

used by eagles for purposes of 

reproduction,’’ it is protected as a nest 

by the Eagle Act. 

Comment: Clarification is requested 

as to whether the definition of ‘‘nest’’ 

includes alternate nests as well as the 

primary nest site. 

Service response: To clarify that the 

definition includes alternate nests, we 

revised it by changing ‘‘a’’ to ‘‘any.’’ The 

definition now reads: ‘‘any readily 

identifiable structure built, maintained, 

or used by bald eagles or golden eagles 

for the purpose of reproduction.’’ 

Comment: The rule should use the 

definition of ‘‘eagle nest’’ already in the 

Code of Federal Regulations. 

Service response: In addition to 

applying to bald eagle nests as well as 

golden eagle nests, the new definition 

differs from the old one in two ways. 

First, the new definition substitutes 

‘‘used’’ for ‘‘occupied’’ in order to avoid 

confusion with the term as used in 

scientific literature where it has very 

specific connotations. Second, the new 

definition replaces ‘‘for propagation 

purposes’’ with ‘‘for purposes of 

reproduction,’’ because ‘‘propagation’’ 

sometimes refers to human-induced 

breeding, whereas ‘‘reproduction’’ more 

plainly means what is intended. 

Comment: The definition of ‘‘inactive 

nest’’ is inconsistent with the National 

Bald Eagle Management Guidelines, 

which use the terms ‘‘active nest’’ and 

‘‘alternate nest.’’ 

Service response: The NBEMG use the 

following terminology: An ‘‘active nest’’ 


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is a nest that is attended (built, 

maintained or used) by a pair of bald 

eagles during a given breeding season, 

whether or not eggs are laid. An 

‘‘alternate nest’’ is a nest that is not used 

for breeding by eagles during a given 

breeding season (NBEMG, pg. 17). The 

definition of ‘‘inactive nest’’ in these 

regulations is not consistent with the 

terminology applied in the Guidelines 

because the definitions serve different 

purposes. The Guidelines distinguish 

between ‘‘active’’ and ‘‘alternate nests’’ 

in order to recommend different 

practices to avoid disturbing eagles. An 

‘‘alternate nest’’ as defined in the 

Guidelines is not the same concept as an 

‘‘inactive nest’’ in the regulations. As 

defined in the Guidelines, an ‘‘alternate 

nest’’ can also be an ‘‘active nest’’ if it 

was attended during the breeding 

season, but not used for breeding. This 

distinguishes it from a nest that is 

completely unattended during the 

course of a breeding season (which had 

it been defined, might have been called 

an ‘‘inactive nest,’’ although that 

definition should also include any nest 

outside the breeding season). The 

Guidelines recognize that disturbance 

can only occur if eagles at some point 

notice something that agitates them (in 

addition to other factors), and therefore 

an eagle could be disturbed at an 

attended nest during the breeding 

season, thereby causing the attended 

nest to become alternate. Therefore, 

recommendations for conducting 

activities during the nesting season near 

nests that might go either way (might 

become alternate nests or might be used 

for breeding purposes), when no nest 

has yet been definitively selected by 

eagles in the territory, are as strong as 

for nests that are selected for breeding 

purposes. 

In contrast, the regulations 

distinguish between nests that are not 

being used at present for breeding 

purposes (including the 10 days just 

prior to an egg being laid) to ensure 

there is no associated take of eggs or 

nestlings, and that eagles are not 

prevented from laying eggs in a nest 

they have selected to breed in that 

season. An ‘‘inactive nest’’ under the 

regulations would theoretically include 

some nests deemed ‘‘active’’ under the 

Guidelines if it was attended by eagles 

during that breeding season (at least 10 

days prior), but not used for breeding 

purposes. The aim is different: eagles at 

that nest could have been disturbed 

during the earlier period when they 

attended the nest—hence its designation 

as ‘‘active’’ under the Guidelines to 

minimize that possibility. But if eagles 

are not using it for breeding purposes as 

evidenced by lack of attendance for at 

least 10 days (whether within or outside 

of the nesting season) its removal would 

have significantly different impacts to 

eagles than removal of a nest that is 

occupied or attended during the past 10 

days for purposes of breeding, leading to 

the designation in the regulations of 

such nests as ‘‘inactive nests.’’ 

Comment: The definition of ‘‘inactive 

nest’’ is inconsistent with the existing 

definition. 

Service response: The new definition 

is consistent with the old definition, 

which, in any case, is being removed. 

The new definition differs primarily in 

that it includes bald eagle nests as well 

as golden eagle nests. The second 

difference is replacement of the phrase 

‘‘absence of any adult, egg, or dependent 

young at the nest for 10 days before the 

nest is taken’’ with ‘‘continuing absence 

of any adult, egg, or dependent young at 

the nest for 10 consecutive days 

immediately prior to, and including, at 

present.’’ The change serves dual 

purposes. First, it eliminates the 

inadvertent implication in the old 

definition that a nest cannot be inactive 

unless it has been taken. Second, it 

clarifies that the period of when the nest 

is not attended has to be current in 

order for the nest be considered 

inactive. The last difference is the 

addition of the following sentence: ‘‘An 

inactive nest may become active again 

and remains protected under the Eagle 

Act.’’ This sentence is included to 

clarify that nests that become inactive 

generally retain significant biological 

value to eagles, and are subject to the 

same prohibitions against take as active 

nests. None of these revisions are 

inconsistent with the old definition of 

‘‘inactive nest.’’ 

Comment: Because an inactive nest 

may become active again and remains 

protected under the Eagle Act, there 

should be no distinctions in the level of 

protection afforded to active and 

inactive nests. Designation of the nest as 

inactive for the purposes of this rule 

might allow for easier granting of 

permits, even though such a nest might 

be the only nest structure within a 

particular pair’s territory. 

Service response: The reason for 

distinguishing between active nests and 

inactive nests and for defining the term 

‘‘inactive nest’’ is because the new nesttake-permit regulation, as well as 

existing regulations for take of golden 

eagle nests for resource development 

and recovery operations (50 CFR 22.25), 

regulate nests differently depending on 

whether they are currently active or 

inactive. Under existing § 22.25, a 

permit may only be issued for inactive 

nests. Under the regulations being 

finalized by this rulemaking, a permit 

can be issued for an active nest only if 

the location of the nest poses an 

immediate threat to safety. This 

definition is intended to be applied only 

to questions of whether or not a nest 

may be taken with reduced risk of 

associated take of birds. It is not 

intended to convey any other biological 

status. 

We will consider whether the nest is 

the only one in the territory. If the take 

is not necessary to alleviate a safety 

emergency, before issuing a permit we 

must find that ‘‘suitable nesting and 

foraging habitat is available to the area 

nesting population of eagles to 

accommodate any eagles displaced by 

the nest removal’’ (§ 22.27(e)(6)). 

Comment: Is a nest considered 

‘‘abandoned’’ under the Guidelines still 

protected by the Eagle Act? The rule 

should clarify how the Eagle Act applies 

in this case. Does it prohibit only 

removal of the structure? 

Service response: A nest that has been 

abandoned is not necessarily 

permanently abandoned and remains 

protected under the Eagle Act. The 

NBEM Guidelines refer to nest 

abandonment as follows: ‘‘Nest 

abandonment occurs when adult eagles 

desert or stop attending a nest and do 

not subsequently return and 

successfully raise young in that nest for 

the duration of a breeding season .... 

[N]est abandonment can occur at any 

point between the time the eagles return 

to the nesting site for the breeding 

season and the time when all progeny 

from the breeding season have 

dispersed’’ (NBEMG, p. 17). 

By ‘‘a nest considered abandoned 

under the Guidelines,’’ the commenter 

may have been referring to the Service’s 

recommendations for nests that have not 

been active for five years, in which case 

the Guidelines suggest that the buffer 

distances the Service recommends 

around nests may not need to be 

maintained at that point, since, in 

general, the probability of disturbing 

eagles at nests that have not been 

attended for five years is decreased. 

However, as the Guidelines continue on 

to state, ‘‘[t]he nest itself remains 

protected by other provisions of the 

Eagle Act, however, and may not be 

destroyed’’ (NBEMG, pg. 11). 

Comment: ‘‘Territory’’ should be 

defined in the regulation. 

Service response: This comment was 

made on the June 5, 2007, proposed 

rule. The regulations governing nest 

removal (new § 22.27) use the term 

‘‘territory’’ to refer to the area where a 

nest could potentially be relocated. 

When we released the DEA and reopened the comment period on the rule, 


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we proposed to define ‘‘territory’’ as ‘‘a 

defended area that contains, or 

historically contained, one or more 

nests within the home range of a mated 

pair of eagles, and where no more than 

one pair breeds at a time.’’ 

Comment: The last 10 words in the 

proposed definition of ‘‘territory’’ 

(‘‘where no more than one pair breeds 

at a time’’) should be deleted, since this 

changes from year to year. 

Service response: We deleted those 

last 10 words from the final definition 

so that it reads: ‘‘[t]erritory means a 

defended area that contains, or 

historically contained, one or more 

nests within the home range of a mated 

pair of eagles. 

Comment: The definition of 

‘‘territory’’ should not include the word 

‘‘historically’’ because that would 

encompass areas that eagles have not 

occupied for many years. Perhaps it 

could be modified to read ‘‘recently 

contained’’ or ‘‘within 10 years.’’ 

Service response: We considered 

removing the word ‘‘historically’’ and 

adding some limit to the time frame in 

which a territory could be considered a 

territory, but rejected the suggestion 

because a time frame would be arbitrary, 

and the phrase ‘‘recently contained’’ 

does not have any biological basis. 

Primarily, we opted to leave 

‘‘historically’’ within the definition 

because the rule does not use the word 

‘‘territory’’ to restrict or authorize any 

action. The statute itself does not 

protect or even reference territory. Its 

only use within these regulations is to 

refer to the area that will be considered 

when a nest can feasibly be relocated 

‘‘within the same territory to provide a 

viable nesting option for eagles within 

that territory, unless such relocation 

would create a similar threat to safety’’ 

(§ 22.27(a)(2)). 

Comment: The definition of 

‘‘practicable’’ is of central importance 

and should be incorporated into the 

regulation. 

Service response: We agree and have 

defined ‘‘practicable’’ in the regulation 

as ‘‘capable of being done after taking 

into consideration, relative to the 

magnitude of the impacts to eagles: (1) 

the cost of remedy comparative with 

proponent resources; (2) existing 

technology; and (3) logistics in light of 

overall project purposes.’’ The phrase 

‘‘relative to the magnitude of the 

impacts to eagles’’ is important because 

whether something is practicable is 

relative to the risk of not doing it. If the 

adverse impact is small, it may be 

impracticable to undertake enormously 

costly measures to avoid it, but it if the 

impact will be extremely detrimental, 

increased measures may be deemed 

reasonable and practicable. For 

example, it may not be practicable to 

find a new site for a proposed largescale wind turbine project in order to 

avoid disturbing one nesting pair of 

eagles, whereas it may be considered 

practicable to find an alternative if the 

site originally proposed was within a 

major migration corridor for golden 

eagles and would likely result in 

significant eagle mortalities. 

Comment: The definition of 

‘‘practicable’’ must not include any 

consideration of the applicant’s 

financial resources. (Some commenters 

asserted such a consideration would 

result in too high a bar for large projects 

with resources, while others were 

concerned it would result in too low a 

bar because applicants will always 

claim not to have enough resources to 

avoid or minimize impacts.) 

Service response: We believe 

‘‘practicable’’ inherently encompasses 

consideration of what the proponent can 

muster and marshal towards achieving a 

goal, whether it be money, time, 

ingenuity, or other factors that 

contribute to the chances of being able 

to accomplish something. Our inclusion 

of the phrase ‘‘the cost of remedy 

comparative with proponent resources’’ 

was intended to confirm the integral 

role such a consideration plays in 

determining what is practicable. For 

more discussion on this issue, see our 

related responses to comments under 

the heading Scope and Criteria of 22.26. 

Comment: The rule should define 

‘‘public welfare’’ as ‘‘the well-being of a 

community, state, region, or nation in 

matters of health, safety, or order.’’ 

Service response: When we released 

the DEA and re-opened the comment 

period on the proposed rule, we 

proposed to base some aspects of the 

new permit programs on the concept of 

‘‘necessary for the public’s welfare,’’ 

which we proposed to define as 

‘‘needed to maintain society’s wellbeing in matters of health, safety, and 

order.’’ 

We would have used the concept 

when demand for take exceeds what is 

compatible with the preservation of the 

bald eagle or the golden eagle, to ensure 

that take that is necessary for the 

public’s welfare be prioritized over 

other take for other purposes except for 

Native American religious use and 

safety emergencies. The concept would 

also have been central to issuance of 

eagle nest take permits under new § 

22.27, expanding the reasons for which 

nests could be taken from safety 

emergencies only, to situations where 

the take is necessary to protect the 

public’s welfare. However, as a number 

of commenters observed, the definition 

was unacceptably broad and subjective, 

particularly when used as a qualifying 

factor for nest removal. For example, it 

could be argued to include any activity 

that increases a locality’s tax base, 

which could include any commercial 

activity, and this was not our intent 

because we do not believe it accords 

with Congressional intent underpinning 

the Eagle Act. Although the Eagle Act 

does incorporate protection of private 

interests (e.g., protection of livestock 

from depredating eagles), the language 

and legislative history of the statute 

convey a greater degree of protection for 

eagle nests than for individual eagles. 

For that reason, we replaced the overbroad term ‘‘the public’s welfare’’ with 

the narrower concept of ‘‘public health 

and safety.’’ This will encompass 

projects that are genuinely necessary to 

protect people, while excluding projects 

that may have only intangible benefits 

incommensurate with the negative 

impact to eagles from removing a nest. 

The rule also provides that a nest may 

be taken for any purpose as long as there 

is a net benefit to eagles provided either 

by the activity itself or mitigation for the 

activity. Had we more time to develop 

this rule, we might consider adopting a 

permitting system wherein nests with 

lesser biological value could be removed 

for a broader range of purposes without 

requiring the permittee or activity to 

provide a net benefit to eagles. However, 

due to the importance of finalizing this 

rulemaking expeditiously, the analysis 

of the merits, complexities, and 

potential drawbacks of such an 

approach, if undertaken, will have to be 

addressed in the implementation 

guidance for this regulation or in a 

future rulemaking. 

Comment: The definition of ‘‘public 

welfare’’ is too broad and vague and 

greatly exceeds the purposes for which 

golden eagle nest take now can be 

permitted. Clarification is needed as to 

what specific types of activities will fall 

under ‘‘public welfare.’’ 

Service response: We agree that ‘‘the 

public’s welfare’’ was too vague a 

concept and very difficult to define. As 

discussed in the preceding response, the 

final rule incorporates the narrower 

concept of ‘‘public health and safety.’’ 

Comment: ‘‘Public welfare’’ should 

not include transportation projects, 

which should be treated like any 

construction or development. 

Service response: We replaced the 

concept of ‘‘the public’s welfare with 

‘‘public health and safety,’’ to provide 

parameters on what can qualify under 

the term. However, we intend that the 

concept of ‘‘public health and safety’’ 

will sometimes, though not necessarily 

always, apply to transportation projects. 


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For example, where a highway 

department proposes to modify a 

highway interchange to reduce a 

disproportionately high incidence of 

traffic accidents, if the modifications 

needed to improve safety cannot 

practicably avoid an eagle nest, the 

project may qualify for a nest removal 

permit, depending on whether the 

remaining permit issuance criteria can 

be met. 

Comment: The rule should define 

‘‘cumulative impacts’’ as ‘‘the 

incremental environmental impact or 

effect of the proposed action, together 

with impacts of past, present, and 

reasonably foreseeable future actions. 

Cumulative effects can result from 

individually minor but collectively 

significant actions taking place over a 

period of time.’’ 

Service response: We largely agree 

with this comment and have adopted 

the first sentence suggested by the 

commenter as the definition of 

‘‘cumulative effects’’ within this rule. 

We omitted the second sentence 

because we believe it unnecessarily 

narrowed the definition by suggesting 

that cumulative impacts occur only over 

time, whereas cumulative impacts also 

can refer to multiple impacts from a 

variety of sources occurring 

concurrently with one another. 

Comment: The rule should define 

‘‘indirect effects’’ as ‘‘effects caused by 

the action and which are later in time 

or farther removed in distance, but are 

still reasonably foreseeable. Indirect 

effects may include growth-inducing 

effects and other effects related to 

induced changes in the pattern of land 

use, population density or growth rate, 

and related effects on air and water and 

other natural systems, including 

ecosystems. Indirect impacts include 

those impacts resulting from 

interrelated actions that are part of a 

larger action and depend on the larger 

action for their justification and from 

interdependent actions that have no 

independent utility apart from the 

proposed activity.’’ 

Service response: The definition 

suggested by the commenter is too broad 

for the context of this regulation. 

Beyond what is appropriate for us to 

consider as part of the NEPA analysis 

(where one is required), we do not 

intend to base permit decisions on how 

growth enabled by a proposed action 

would affect air, water, and other 

natural ecosystems. The permit 

authorizes eagle take and the issuance 

criteria will include consideration of 

reasonably foreseeable secondary effects 

on eagles to ensure that authorized take 

is compatible with the preservation of 

the bald eagle or the golden eagle. To 

the degree that these secondary or 

‘‘indirect effects’’ will foreseeably result 

in additional impacts to eagles, we will 

consider those impacts. However, 

impacts to air quality and water quality 

may require authorizations from other 

agencies, and the responsibility to 

authorize or prohibit such impacts is 

generally beyond our authority. 

We agree with the commenter that a 

definition of secondary or indirect 

effects may be beneficial. In the 

proposed rule, we used the term 

‘‘secondary impacts’’ to refer to impacts 

that result from an activity after an 

initial action (e.g. building a road has an 

impact, and the traffic that results is a 

secondary impact). We had considered 

using the term ‘‘indirect effects’’ but felt 

it was unsatisfactory because secondary 

impacts are often direct. They may 

occur somewhat later in time, but they 

are the direct result of the first action 

and may directly affect eagles (e.g., 

without the road having been built, 

there would be no vehicular traffic). 

However, the term ‘‘secondary impacts’’ 

has its own drawbacks; most notably it 

could be interpreted to omit any 

impacts that were tertiary or beyond. 

For that reason, and because ‘‘indirect 

effects’’ is used much more commonly, 

we are replacing the term ‘‘secondary 

impacts’’ with ‘‘indirect effects.’’ 

When we re-opened the comment 

period on the rule in August 2008, we 

proposed to define ‘‘indirect effects’’ as 

‘‘effects that are caused by an action and 

either occur later in time or are 

physically manifested beyond the 

immediate impacts of the action, but are 

still reasonably foreseeable.’’ We 

modified that proposed definition to 

clarify that the proposed action can be 

a contributing factor to the effect and 

does not have to be the sole cause. The 

final definition of ‘‘indirect effects’’ 

under this rule is: ‘‘effects for which a 

proposed action is a cause, and which 

may occur later in time and/or be 

physically manifested beyond the initial 

impacts of the action, but are still 

reasonably likely to occur.’’ 

Comment: ‘‘Indirect effects’’ must 

include the requirement of a reasonably 

close causal relationship between the 

environmental effect and the alleged 

cause. 

Service response: We agree with this 

comment, and will address this issue in 

more depth in the implementation 

guidance for these regulations. 

Comment: The rule should require the 

Director to consider both cumulative 

impacts and indirect effects before 

concluding compatibility with 

preservation of the eagle. 

Service response: The final rule 

requires the Service to consider indirect 

effects when assessing the scope of the 

impact, and it requires us to consider 

cumulative effects in determining 

whether the take will be compatible 

with the preservation of the bald eagle 

or the golden eagle. 

Comment: ‘‘Cumulative effects’’ 

should not be considered because each 

permit application will be assessed at 

the time it is processed. 

Service response: This comment 

appears to misunderstand the essential 

concept of cumulative effects, which no 

matter how defined, must include 

consideration of more than one effect at 

a time. The need to assess cumulative 

effects arises from the fact that 

combinations of effects can create 

impacts that would not result from a 

single effect, and which, in the case of 

eagles, could threaten their 

preservation. The assessment of 

cumulative effects will also be critical to 

protection of local eagle populations, 

since it will afford the Service a view of 

where a concentration of impacts may 

be occurring, a view that otherwise may 

not in every case be adequately 

examined during the permit-issuance 

process. 

Comment: The definition of 

‘‘cumulative effects’’ overreaches and is 

not supported by the Eagle Act. The 

regulations should adopt the approach 

the Service is imposing on itself in 

revisions to ESA interagency 

coordination regulations, that is: for the 

effect to be reasonably certain to occur, 

the Service must have clear and 

substantial information that the 

proposed action is an essential cause. It 

would put both statutes on the same 

definitional footing and eliminate 

confusion. 

Service response: The revisions to 

ESA interagency coordination 

regulations have been withdrawn. 

Regardless, they pertained to a different 

statute, the ESA, and are not appropriate 

under the Eagle Act, which has separate 

standards and a different mandate. Also, 

the commenter appears to be merging 

the (now withdrawn) ESA section 7 

definitions for ‘‘cumulative effects’’ and 

‘‘indirect effects.’’ Under both the 

retracted and the reinstated ESA 

regulations, ‘‘cumulative effects’’ are 

limited to effects that are ‘‘reasonably 

certain to occur.’’ Preservation of the 

bald eagle and the golden eagle may not 

be achieved if the Service must carry the 

burden of proving an effect will occur 

before it can be prevented, which would 

effectively be the case if the only 

cumulative effects we could consider 

were those that are reasonably certain to 

occur. The ESA regulatory definition of 

‘‘cumulative effects’’ is not related to the 

concept of an ‘‘essential cause,’’ as the 


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commenter mistakenly suggests. 

‘‘Essential cause’’ was used under the 

withdrawn ESA section 7 regulations to 

clarify the definition of ‘‘indirect 

effects.’’ For purposes of permitting 

under the Eagle Act, we define 

‘‘cumulative effects’’ as ‘‘the 

incremental environmental impact or 

effect of the proposed action, together 

with impacts of past, present, and 

reasonably foreseeable future actions.’’ 

Other 

Comment: ‘‘Absence of data’’ should 

not be used to deny take authorization 

for infrastructure projects that promote 

public safety and welfare; rather the 

‘‘best available science’’ should be used. 

Service response: We certainly believe 

that the best available science should be 

used. However, the Eagle Act requires 

the Secretary of the Interior to 

determine that take will be compatible 

with the preservation of eagles before he 

or she may authorize the take. To permit 

take without sufficient data to show that 

it will not result in a decline in the eagle 

population would violate the statutory 

mandate. 

Comment: Will any activities be 

exempt from the take provisions of the 

Eagle Act? 

Service response: What is prohibited 

is ‘‘take,’’ not the activities that result in 

take. In any case, we cannot exempt any 

take of bald eagles from the permit 

requirement imposed by the Eagle Act. 

Any such exemption would have to be 

provided by an amendment to the Act 

by Congress. 

Comment: In addressing the 

information-collection requirements of 

the Paperwork Reduction Act, the 

Service has probably underestimated 

the public reporting burden for 

completing an application. Forest 

Service staff estimate it will take 3-6 

person-days to complete the application 

process. 

Service Response: The reporting 

burden we provided was an estimate of 

the average hourly burden we 

anticipate. For large-scale activities such 

as the Forest Service management plans, 

the application process will be much 

longer than the average. Nevertheless, 

we have increased our estimate of the 

average hourly burden from 10 hours to 

16 hours and added an estimate of 40 

hours for a programmatic take permit. 

Some programmatic permits may take 

longer than that to develop; however, 

once ‘‘templates’’ have been developed 

for particular industries or activities, the 

process will be more streamlined for 

subsequent programmatic permits for 

similar activities. 

Comment: Far more than 300 permits 

per year will be needed, partially due to 

the ‘‘uncertainty caused by the 

definition of disturb and the fact that the 

guidelines are not possible to follow in 

general.’’ The Service should revise its 

estimates to reflect the higher demand. 

The lower estimate is arbitrary and 

capricious and results in a cost estimate 

that is too low. The Service should 

provide documentation, evidence, or 

rationale for the time estimates. 

Service response: We want to be clear 

about the fact that we do not have any 

reliable documentation or evidence to 

indicate how many people will seek 

permits under this regulation, and we 

received none from the public during 

the public comment period. These are 

new permit programs that will apply to 

a newly-delisted species (bald eagles) 

and a species for which no similar 

authorization was previously available 

(golden eagles). Having said that, we 

have increased our estimate to 1,168 

permit applications and 910 permits 

issued under both regulations. 

We do not agree that the number of 

permits is larger than it otherwise 

would be because of the ‘‘uncertainty 

caused by the definition of disturb.’’ In 

the past, disturb was not defined at all, 

and the new definition limits the pool 

of impacts that might otherwise have 

been considered disturbance in the 

absence of a definition by establishing a 

relatively high threshold that requires 

injury or nest abandonment. We also 

disagree that the National Bald Eagle 

Management Guidelines are not possible 

to follow in general. The Guidelines are 

more flexible than any guidance that 

proceeded bald eagle delisting and they 

recommend the smallest buffers that 

applied in any part of the country prior 

to delisting. In Alaska, parts of which 

have the highest density of bald eagles 

in the United States, no ESA permits to 

take eagles were ever available because 

the bald eagle was never listed under 

the ESA in Alaska. Since guidelines 

similar to our National Guidelines (but 

less flexible) have proven to be possible 

to follow in Alaska, we believe they can 

be workably applied in other parts of 

the U.S. where eagles are present in 

lower densities. 

Finally, as provided in these 

regulations, we will only issue permits 

where the take cannot practicably be 

avoided, which will help minimize the 

number of permits. 

Comment: The Service should avoid 

heightening regulatory burdens with 

regard to the golden eagle. Golden 

eagles cause damage to crops and 

livestock and the location of their nests 

can restrict agricultural activities on 

farms and ranches. They are only 

protected under the Eagle Act in order 

to better protect juvenile bald eagles, 

which they resemble. Golden eagles are 

plentiful and will tolerate a much 

higher level of take than bald eagles. 

Therefore the permit-application 

process and issuance criteria should be 

much less rigorous than for bald eagles. 

Service response: Rather than 

heightening regulatory restrictions, this 

regulation provides a mechanism for 

authorizing impacts that otherwise 

would be prohibited. The Eagle Act 

prohibits take of both bald eagles and 

golden eagles. Accordingly, this 

regulation provides a means to 

authorize take of golden eagles as well 

as bald eagles. 

The need to protect juvenile bald 

eagles was the third of three reasons 

Congress provided for extending Eagle 

Act protection to golden eagles. In a 

joint resolution amending the Act, 

Congress stated ‘‘Whereas the 

population of the golden eagle has 

declined at such an alarming rate that it 

is now threatened with extinction; and 

Whereas the golden eagle should be 

preserved because of its value to 

agriculture in the control of rodents; and 

Whereas protection for the golden eagle 

will afford greater protection for the 

bald eagle...’’ (Bald and Golden Eagle 

Protection Act Amendments of 1962, 

Pub. L. No. 87-884, 76 Stat. 1246 (1962). 

Contrary to the statements made by 

the commenter that golden eagles are 

plentiful and will tolerate a higher level 

of take, our data indicate the opposite. 

In contrast to bald eagles, golden eagle 

populations do not appear to be 

increasing, and may be declining in 

some parts of their range, possibly due 

to loss of habitat to support their prey 

base. Overall, our data for golden eagles 

are not as comprehensive as for bald 

eagles, and, under the Eagle Act, we 

cannot issue take permits for golden 

eagles unless we have enough data to 

make the determination that the take to 

be authorized will be compatible with 

the preservation of golden eagles. 

Golden eagles do sometimes prey on 

newborn livestock, and losses to 

individual producers can occasionally 

be significant. However, the economic 

benefit provided by golden eagles (as 

recognized by Congress) consuming 

rabbits, rodents and other prey that 

otherwise would damage crops likely far 

outweighs any economic losses to the 

agricultural industry. 

Finally, golden eagles have enormous 

cultural significance to many 

Americans, particularly many Native 

Americans. Even without consideration 

of the other reasons why golden eagles 

were protected by Congress, the cultural 

and spiritual value accorded to golden 

eagles justifies the level of protection 


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46868 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations 

they share with bald eagles under the 

Eagle Act. 

Comment: The economic analysis 

should not be limited to a pre- versus 

post-delisting assessment. Rather, the 

Service should consider the costs of the 

regulatory program in comparison to 

other recovered species. 

Service response: Comparing the costs 

of this permit program to the costs of 

making a similar permit available for 

other recovered species would yield 

little or no useful information because 

we have never before created a new 

permit regulation to authorize take of a 

recently-delisted species. Even had we 

done so, we doubt the comparison 

would be very useful because, unlike 

any other species, bald eagles and 

golden eagles are protected by the Eagle 

Act, and it is the unique protections of 

that statute that fundamentally shape 

this regulation. 

Comment: The Service, by stating that 

it only rarely expects to issue permits 

for take associated with activities that 

conform to the guidelines, appears to 

have foreclosed the option to seek and 

gain assurance against prosecution 

under the Eagle Act through issuance of 

a permit. 

Service response: While we will 

continue to discourage applications for 

take we believe is unlikely to occur, 

preferring to put our agency’s limited 

resources towards our mission of 

conserving wildlife, we anticipate 

issuing some of these permits. The 

monitoring and reporting that will be 

required of permittees will be of value, 

since it will provide documentation we 

rarely would otherwise obtain: whether 

the activities we thought would not 

disturb eagles do result in take. 

Normally, permittee monitoring will be 

for activities that are likely to take 

eagles. In addition, the Service may 

exercise enforcement discretion by not 

referring such take for prosecution 

under the MBTA or the Eagle Act if it 

occurs despite the low probability. 

Comment: Sensitive nest data 

maintained by States will be made 

public through the Freedom of 

Information Act (FOIA) process, 

jeopardizing the safety of the nest. 

Service response: Although we do not 

share this State commenter’s concern 

that eagle nests will be less protected if 

their location is known, we respect the 

State’s intentions, and to the degree we 

can under law, we will honor its wishes 

to safeguard State nest data. However, 

we cannot circumvent the requirements 

of the FOIA. 

Comment: The tenure of depredation 

permits for hazing eagles should not be 

increased because it could lead to abuse. 

Service response: In addition to 

amending the eagle-depredation-permit 

regulations under § 22.23 to extend 

potential permit tenure to up to five 

years, we included the following 

language: ‘‘We may amend, suspend, or 

revoke permits issued for a period of 

longer than 90 days if new information 

indicates that revised conditions, 

suspension, or revocation is necessary 

to safeguard local or regional eagle 

populations.’’ 

Comment: Penalties for violations 

should be dramatically increased and 

the compensation used to develop and 

implement management plans. 

Service response: The Service does 

not establish and cannot effect changes 

to penalties for violations of the Eagle 

Act and other statutes we enforce. 

Congress establishes the penalties. 

Comment: Due to the unique 

circumstances of Alaska, the Service 

should develop streamlined procedures 

for ensuring that infrastructure projects 

can comply with the Eagle Act. 

Service response: We intend to 

establish working groups with 

interested States and tribes to develop 

streamlined procedures to boost the 

efficacy of this permit program and 

enhance compliance with the Eagle Act. 

Fees 

Comment: The permit-processing fees 

must be higher to comply with the 

Service’s mandate that permit programs 

be ‘‘self-sustaining to the extent 

possible’’ as required by 31 U.S.C. 

9701(a). The program will drain money 

that should be used for important 

conservation needs. 

Service response: The commenter is 

correct that the permit application 

processing fees associated with the new 

permits are not high enough to allow the 

Service to recoup even half the cost of 

issuing them. However, the fees are 

significantly higher than other permit 

application processing fees we assess. 

The fees associated with these 

regulations must be manageable to small 

business owners, home owners, and 

other members of the public who may 

find a higher fee prohibitive. We are 

establishing a higher application fee for 

programmatic permits: $1,000, with a 

$500 amendment processing fee. 

Comment: The proposed fees are too 

high, especially when encouraging 

landowners in conservation efforts. The 

Service should consider a designation of 

‘‘low-effect’’ permits for which a lower 

permit-application-processing fee would 

be charged. Also, the Service should 

consider a lower fee for private 

landowners and small businesses. 

Service response: Permits are a 

‘‘service’’ provided to specific 

individuals and individual corporations 

within the public at large. Our agency 

is directed by Congress and OMB to 

recoup the costs of permit programs 

where feasible. The lower the permit 

processing fees, the larger are the 

percentage of costs that must be shifted 

to taxpayers or diverted from other 

Service responsibilities. Therefore, we 

do not believe the $500 permit 

processing fee is unreasonable for 

applications for individual permits. 

While we are not adopting the 

commenter’s suggestion that application 

fees be less for ‘‘low-effect’’ permits, we 

are establishing a higher fee for permits 

that will take longer to process; the 

application-processing-fee for 

programmatic permits is $1,000. While 

the typical programmatic permit will 

likely cost the Service more than twice 

as much as the typical individual-take 

permit, we believe the $1,000 

application fee, rather than a higher fee 

more in line with our processing costs, 

is justified because programmatic 

permittees will be required to undertake 

rigorous and potentially costly 

conservation measures. 

Regarding the suggestion that fees be 

lower than $500 for private landowners 

and small businesses, if we did that, we 

would recoup an unacceptably small 

percentage of the costs of the permit 

program. Federal, State, tribal and local 

government agencies will likely 

constitute a large portion of applicants, 

but they are exempt from permit 

application fees. It is inappropriate to 

require the American taxpayer to bear 

all the costs of administering permits 

that primarily benefit private 

individuals. We believe that the fees 

associated with this rulemaking are a 

fair compromise between recouping all 

of our costs and ensuring that no one is 

disqualified because he or she cannot 

afford the permit application-processing 

fee. 

Comment: The Service should not 

charge fees for tribal religious purposes. 

Service response: We do not charge 

permit application processing fees for 

permits for tribal religious purposes. 

This regulation has no effect on our 

policy regarding such fees. 

Permits for Take of Eagle Nests 

Comment: The final rule should 

clarify that a safety emergency means a 

threat to life, not a threat to property. 

Service response: The regulation 

includes the following definition of 

‘‘safety emergency’’: ‘‘a situation that 

necessitates immediate action to 

alleviate a threat of bodily harm to 

humans or eagles.’’ However, the rule 

now provides that permits may be 

issued to remove inactive nests where 


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necessary to ensure public health and 

safety, which includes situations 

beyond immediate safety emergencies. 

Comment: Nest removal permits 

should be available to avert severe 

financial impacts. 

Service response: The plain language 

and legislative history of the Eagle Act 

prevent us from making permits 

available to remove eagle nests to 

reduce financial impacts. Congress 

amended the Act in 1978 to provide the 

Secretary of the Interior the ability to 

authorize take of golden eagle nests that 

‘‘interfere with resource development or 

recovery operations.’’ Congress 

specifically did not include bald eagle 

nests in this narrowly-focused 

amendment, nor did it provide us with 

the ability to authorize golden eagle nest 

take for purposes as broad as financial 

impacts, even severe ones. Therefore, 

we interpret our authority to issue 

permits to take golden eagle nests as 

limited to purposes no broader than the 

1978 amendment, and for bald eagle 

nests, even narrower. Take that is 

necessary to benefit eagles and protect 

public health and safety is conservative 

and falls within the narrow range of 

purposes for which we may issue eagle 

nest take permits for both species. 

Comment: Relocation of nests is not 

always realistic. The final rule should 

not depend on that approach. 

Service response: The regulation does 

not require that nests be relocated. It 

provides that ‘‘[w]here practicable, the 

nest should be relocated, or a substitute 

nest provided, in a suitable site within 

the same territory to provide a viable 

nesting option for eagles within that 

territory, unless such relocation would 

create a similar threat to safety.’’ The 

rule also specifically provides that 

permits may be issued under the 

regulation when nests cannot be 

relocated. 

Comment: The rule should 

specifically state that the applicant must 

take all reasonable steps to minimize 

impacts to eagles before a nest is 

removed to ensure that all alternatives 

have been exhausted. Such alternatives 

would include take of nests outside of 

the breeding season. The applicant must 

be required to demonstrate that (1) the 

removal is in the public interest; (2) 

there is a clear threat to eagle or human 

safety; and (3) there is no alternative to 

removal that would alleviate the 

emergency. 

Service response: Nests that need to 

be removed because they pose a safety 

hazard should be removed outside the 

breeding season. However, removing 

nests outside of nesting season is not 

always possible. Thus, the rule provides 

that, in a genuine safety emergency, 

active nests can be removed if necessary 

to prevent imminent death or physical 

injury to people or eagles. We have 

added provisions to the rule for 

programmatic authorizations to remove 

nests for situations where the need for 

nest removal will be ongoing (e.g., at 

some airports or for utilities that 

maintain power lines). Programmatic 

nest-removal permits would be available 

only when the applicant has developed 

comprehensive measures to reduce take 

to the degree practicable. 

In response to the commenter’s 

specific suggestions, we consider (1) 

redundant with (2) because any time 

there is a clear threat to eagle or human 

safety, correcting the situation will be in 

the public interest. The proposed rule 

already incorporated the substance of 

(2). We have added the language 

suggested under (3) to the evaluation 

criteria of the rule at § 22.27(d). 

Comment: Nest-removal permits for 

airports should be guaranteed. Denial of 

such an application should not be an 

option. 

Service response: A permit is never 

‘‘guaranteed.’’ The statutory mandate 

that the take be compatible with the 

preservation of the bald eagle or the 

golden eagle must be met. Also, the 

permit will not be issued if there is an 

alternative to nest removal that would 

alleviate the threat to human and/or 

eagle safety or public welfare. 

Comment: Airports are a good 

example of how safety issues are 

invoked when they do not actually 

exist. Airports have done a poor job of 

assessing risks before resorting to lethal 

take and habitat destruction. 

Service response: Although airports 

are already subject to FAA regulations 

that require them to assess and mitigate 

for wildlife hazards (14 CFR 139.337(b) 

and (c)), this permit should improve the 

alternatives analysis that airports 

undertake because the programmatic 

nest-take permit will require permittees 

to undertake comprehensive measures 

to reduce take. 

Comment: Emergency nest take will 

need to be authorized more than five 

times a year, largely due to airport safety 

concerns. 

Service response: We based our 

estimate on the number of emergency 

situations that arose in the past few 

years. However, we have revised our 

estimate for the number of nest take 

permits we anticipate issuing from five 

permits a year to 48 permits per year. 

The higher estimate is based on the 

somewhat broader parameters 

established in the final rule for when 

nest take may be authorized, as well as 

our expectation that bald eagle 

populations will continue to grow in 

most regions. On the other hand, as 

airports develop comprehensive 

measures to reduce the need for take 

permits, we will issue them 

programmatic authorizations, lowering 

the total number of authorizations 

required. 

Comment: The one-year tenure is not 

long enough to address the hazing 

needed to prevent re-nesting at airports. 

Service response: Hazing requires a 

permit only if it is likely to result in 

disturbance as defined in regulation. 

Permits to haze eagles under those 

circumstances will not be authorized 

under either of the new permit 

categories, since § 22.26 applies only to 

take that is associated with, but not the 

purpose of the activity, whereas hazing 

is intentional; and § 22.27 authorizes 

nest take. Permits to haze eagles are 

already issued under existing 

regulations at § 22.23. However, those 

regulations until now did not allow us 

to issue permits for a period longer than 

90 days. This rulemaking amends 

§ 22.23 to allow an extended tenure of 

up to five years for hazing, only. 

Comment: What if action is needed 

before a nest-removal permit can be 

issued? The proposed rule preamble 

states that it may take 40 hours to 

process such a permit. The time needs 

to be shorter and needs to be codified 

in the rule, or else a statement is needed 

that if the Service does not respond 

quickly enough, the take is authorized. 

Service response: The rule estimates 

that it will take a total of 40 Service staff 

hours to process the nest-take permit, 

not 40 consecutive hours. More than 

one Service employee will need to 

participate in the process. We cannot 

authorize bald eagle take without 

issuing a permit. If a bona fide 

emergency response action must be 

taken before the permit can be issued, 

the Service may exercise enforcement 

discretion by not referring such take for 

prosecution under the MBTA or the 

Eagle Act. 

Comment: An on-site inspection by 

the Service should be required before 

issuing a nest-take permit, for oversight. 

Service response: We will not always 

be able to conduct an on-site inspection 

before issuing the permit. If the 

situation is an emergency, there may not 

be sufficient time for us to travel to the 

area. Second, some areas (e.g., parts of 

Alaska) may be remote, making travel 

expensive and time-consuming. Finally, 

due to limited staff resources, we will 

not necessarily have personnel available 

to conduct a site visit. 

Comment: The rule should require the 

permittee to pay for any care needed for 

eggs or nestlings. 


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Service response: Active nests may 

only be taken in cases of bona fide 

safety emergencies. Therefore, care of 

viable eggs or nestlings will only be 

necessary in some emergency situations. 

Because emergencies are intrinsically 

unplanned, we do not consider it 

justified to ask the permittee to pay for 

rehabilitative care that may be 

necessitated by circumstances outside 

the permittee’s control. 

Comment: The rule should require 

mitigation payments for nest removal. 

Otherwise, it creates a financial 

incentive to remove nests. 

Service response: Nest removal 

permits will be available only where: (1) 

necessary to alleviate a safety 

emergency; (2) necessary to ensure 

public health and safety; (3) the nest is 

built on, and obstructs the use of, a 

human-engineered structure; or (4) the 

project, or mitigation for project, will 

provide a long-term benefit to eagles. 

Under the first scenario, financial 

incentives are not germane. Under the 

second and third scenarios, some 

mitigation may be required, depending 

on the particular situation, including 

the availability of other nests in the 

territory, whether the applicant could 

have taken reasonable steps to prevent 

eagles from nesting on the structure, and 

other factors. Under (4), the permittee 

would be required to provide 

compensatory mitigation designed to 

provide a net benefit to eagles, that is, 

to more than compensate for the 

biological impacts of the nest removal. 

If, despite the cost of compensatory 

mitigation, the permittee profits from 

removing the nest, the profit should not 

be an issue, since the overall effect on 

eagles will be beneficial. 

Comment: The rule should clarify that 

lethal take of eagles is not an option 

under this permit. 

Service response: We added the 

following language to the final 

regulation: ‘‘This permit does not 

authorize intentional, lethal take of 

eagles.’’ 

Comment: The rule should provide 

that the permit ‘‘will’’ (rather than 

‘‘may’’) authorize take of eagles, eggs, or 

nestlings associated with the removed 

nest to protect the permittee from 

liability due to incidental take. 

Service response: The permit may or 

may not authorize take of eagles 

associated with nest removal, and where 

take is authorized, the method of take 

will be specified (e.g., collection and 

disposition of live nestlings, disturbance 

of adults, etc). For inactive nest take, 

authorization to take eagles in addition 

to the nest would usually not be 

necessary or appropriate. 

Comment: A programmatic permit is 

needed for operations that need to 

remove nests regularly. For example, 

locations of all eagle nests on 

transmission and distribution facilities 

may not be known, complicating the 

permit process. 

Service response: We agree with this 

comment and added provisions to the 

final regulation for programmatic nest 

removal ‘‘provided the permittee 

complies with comprehensive measures 

that are developed in coordination with 

the Service, designed to reduce take to 

the maximum degree practicable.’’ 

Comment: Will the new nest-take 

permit affect permits issued under 50 

CFR 22.25 for take of golden eagle nests 

for resource-development-and-recovery 

operations? 

Service response: The new permit for 

nest removal is unlikely to affect 

issuance of permits under § 22.25. 

Although, it includes permit issuance 

criteria that prioritize take for certain 

purposes over others, the interests that 

are prioritized above resourcedevelopment-and-recovery operations 

are compelling government interests: 

public health and safety, and upholding 

our trust responsibilities towards Native 

American tribes by ensuring that eagles 

continue to be available for religious 

ceremonies. Based on past history, we 

anticipate only a few requests to remove 

golden eagle nests for health and safety. 

Although regulations have existed for 

decades that would enable us to issue 

permits to tribes to take eagle nests for 

religious purposes, we have had only 

one such request to date. As such, we 

think the new nest take authorization 

under § 22.27 will not affect how we 

administer permits under § 22.25. 

Comment: The provision to allow take 

of golden eagle nests during resourcerecovery operations based on 10 days of 

nest inactivity is at odds with long-term 

occupancy of nests demonstrated by the 

species, and needs to be better 

evaluated. 

Service response: The provision the 

commenter objects to is codified in 

existing regulations that predate this 

rulemaking. Nevertheless, we did reexamine the language during this 

rulemaking process, which extended the 

definition of ‘‘inactive nest’’ to apply to 

bald eagle nests in addition to golden 

eagle nests. As we explain in our 

discussion above regarding the new 

definition of ‘‘inactive nest,’’ the 

distinction between active and inactive 

nests is for the purpose of evaluating 

whether or not a nest may be taken with 

reduced risk of associated take of birds. 

The nest is protected under the Eagle 

Act whether active or inactive and may 

not be taken without a permit. 

Comment: The rule should explicitly 

state that when evaluating whether 

suitable habitat is available, constructed 

nest platforms are not considered 

available suitable habitat. Otherwise, 

entire local populations could be 

displaced to nest platforms if a highway 

was to go through nesting habitat. 

Service response: Suitable habitat 

might include constructed nest 

platforms if they are located in areas 

with adequate foraging and perching 

sites, and other features necessary for 

them to be viable breeding sites. 

Comment: We strongly suggest 

including a narrower and more detailed 

definition of ‘‘public’s welfare,’’ and a 

prioritization scheme where the highest 

priority for nest removal permits is 

given to ‘‘projects that are determined to 

promote the greatest common societal 

and environmental good.’’ 

Service response: We replaced the 

term ‘‘the public’s welfare’’ with the 

narrower concept of ‘‘public health and 

safety.’’ For more discussion of this 

issue, see our response to a comment 

under Scope and Criteria of 22.2. 

Comment: The definition of ‘‘the 

public’s welfare’’ may be interpreted too 

narrowly for purposes of nest removal. 

The final rule should explicitly provide 

that infrastructure projects ‘‘to maintain 

or expand domestic energy production 

and delivery fall within the scope of 

projects necessary for public welfare.’’ 

Service response: Under this final 

rule, permits to remove eagle nests will 

be available only for safety emergencies, 

public health and safety, nests located 

on human-engineered structures where 

the nest interferes with the intended use 

of the structure, or for projects that 

provide a net benefit to eagles. Thus, we 

can issue a permit to remove a nest 

where necessary to protect any interest, 

including where necessary ‘‘to maintain 

or expand domestic energy production,’’ 

as long as the project proponent will 

implement conservation measures that 

provide an overall benefit to eagles 

greater than the adverse effect of nest 

removal (and the other permit issuance 

criteria are met). 

Comment: A permit to take a nest for 

‘‘the public’s welfare’’ should be 

available whether the nest is active or 

inactive. 

Service response: The Eagle Act 

requires the take to be necessary to 

protect an interest. Taking an active nest 

should only be necessary in a safety 

emergency; otherwise the take can be 

delayed until the nest is inactive so 

there is less risk of a loss of productivity 

and no risk of associated take of eggs or 

young. 


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Comment: Take of nests should not be 

allowed for anything other than a safety 

emergency. 

Service response: Limiting nest take to 

safety emergencies has the potential to 

create unacceptable gridlock across the 

United States. Many projects and 

activities that benefit society would be 

disqualified, resulting in untenable 

degradation of social services and 

infrastructure. 

Comment: The Service should not 

issue nest-take permits where the nest is 

the only structure in a territory or if its 

removal would interfere with future 

reproduction in that territory. 

Service response: Where the take is 

not necessary to alleviate a safety 

emergency, we will consider whether 

the nest is the only one in the territory. 

Unless a safety emergency necessitates 

the nest removal, before issuing a permit 

under § 22.27, we must find that 

‘‘suitable nesting and foraging habitat is 

available to the area nesting population 

of eagles to accommodate any eagles 

displaced by the nest removal.’’ 

Comment: The Service should not 

issue a programmatic nest permit to the 

Federal Aviation Administration for 

nationwide airport coverage because, 

with no biologists, it will err on the side 

of human safety and remove nests that 

pose little threat. 

Service response: We do not 

anticipate issuing a single, nationallyapplicable permit to the FAA. At this 

point, we envision issuing permits to 

individual airports and county or 

regional airport authorities. 

Comment: The Service’s estimate of 

only 30 programmatic nest take permits 

per year is too low. That many would 

probably be needed in Alaska alone. 

Service response: We have increased 

our estimate of how many programmatic 

permits we will issue – but only by 10, 

to 40 permits, annually. Programmatic 

permits will be issued only where ACPs 

are implemented to reduce take to a 

level that is unavoidable. The process of 

developing most programmatic permits 

will be more time-consuming than for 

most individual permits, at least until 

we have developed ‘‘templates’’ 

applicable to other permits for the same 

or similar activities. Thus, we think it 

unlikely we will be issuing more than 

40 such permits per year nationwide. 

The permits we are creating through this 

rulemaking are for take that is 

necessary, not take that is merely 

convenient or more profitable than 

avoiding the take. 

Comment: The rule should include a 

separate nest-take category for situations 

where eagles nest on a pre-existing manmade structure. 

Service response: We thought this 

idea had merit and added language to 

the final rule that provides for removal 

of nests that are built on humanengineered structures, creating ‘‘a 

functional hazard that renders the 

structure inoperable for its intended 

use.’’ 

Rulemaking Process 

Comment: Tribal consultation should 

have been sought prior to proposing this 

regulation. How can the government 

claim to have considered cultural values 

without proper government-togovernment consultation with the 

tribes? 

Service response: We sent each 

federally-recognized tribe a letter 

soliciting input on this action when the 

proposed rule was published in the 

Federal Register. Even though the 

comment period was open for 90 days, 

we received only three letters from 

tribes and no requests to extend the 

comment period. The Service sent a 

second letter to the tribes when the DEA 

was released, and several Service 

Regional offices have hosted or attended 

meetings in order to clarify the Service’s 

actions and hear tribal concerns. 

However, due to the need to promulgate 

permit regulations in an expeditious 

manner, there was not enough time to 

fully engage any tribes in formal 

government-to-government consultation 

during the rule-making period. We do 

intend to do so with interested tribes 

during the next phase: development of 

implementation guidance. 

As part of developing the 

implementation guidance, we intend to 

work with tribes to establish protocols 

regarding the types of permit 

applications and potential actions on 

which individual tribes would like the 

Service to consult with them. We will 

also consider cultural values, including 

Native American cultural values as part 

of the NHPA’s section 106 review. (See 

our discussion in the Required 

Determinations section below under 

National Historic Preservation Act.) 

Comment: The comment period was 

too short for the public to provide 

meaningful input. 

Service response: The initial comment 

period for the rule was 90 days, which 

is standard for a significant rule. We 

also re-opened the comment period on 

the rule for another 30 days when we 

released the DEA in August 2008. 

Therefore, the total length of time the 

rule was open for public comment (120 

days) was longer than for most rules. 

Comment: States should have been 

given a greater role in developing the 

regulation, particularly since it will 

require investment of significant State 

resources. The Service should delay 

completion of the regulations and form 

a work group with the State fish and 

wildlife agencies to develop more 

administratively- and economicallyfeasible regulations. 

Service response: We did not delay 

completion of the regulations because 

there is a genuine, substantial, and 

impending public need for these 

permits. Without them, many activities, 

including critical infrastructure projects, 

that might disturb or otherwise take 

eagles have no means of gaining 

authorization for the take, and are either 

on hold or compelled to violate the law. 

Due to the need to promulgate the 

regulations without further delay, we 

were unable to coordinate closely with 

States and tribes during the ruledevelopment phase. However, we plan 

to establish work groups with State and 

tribal representation to assist with 

development of implementation 

guidance for the regulations. The 

implementation guidance will address 

numerous important facets regarding 

administration of the permit program 

that have yet to be worked out, 

including how the Service will 

coordinate with States and tribes during 

the permit-application-and-processing 

phase. 

Comment: The Service should delay 

implementation until it gets an adequate 

monitoring program in place for both 

species throughout the U.S. If the 

Service will not delay completion or 

implementation of the regulations, they 

should be enacted on a short-term basis, 

allowing the Service to work 

cooperatively with the States to develop 

a more comprehensive, data-driven 

permitting system. 

Service response: If, after 

implementation, the regulations need 

revision, we can amend them. There is 

no need to finalize them with a built-in 

expiration clause. We agree that more 

data, monitoring, and surveys would be 

useful, and we plan to pursue 

possibilities for additional funding and 

partnerships to bolster the scientific 

data currently available for both eagle 

species. 

Comment: The Service should publish 

the proposed rule with the changes 

noted in the DEA. Without being able to 

review the explicit regulatory changes 

in context, the public cannot adequately 

evaluate the proposal. 

Service response: We believe the 

August 2008 Notice of Availability for 

the DEA and the DEA itself effectively 

described the changes that we were 

proposing from the rule we proposed in 

June 2007. Republishing a proposed rule 

incorporating the changes noted in the 

DEA would have triggered a number of 


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46872 Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations 

regulatory requirements that would 

have been onerous and—more 

important—time consuming. Due to the 

need to finalize the regulations 

expeditiously, we believe that the 

approach we took was in the best 

interests of the public. 

Endangered Species Act Consideration 

Consultation pursuant to section 

7(a)(2) of the Endangered Species Act is 

not required for these regulations. The 

regulations do not directly or indirectly 

authorize any activities that would 

result in adverse effects to listed 

species, so they will not affect any listed 

species or critical habitat. We will 

conduct section 7 consultations on the 

issuance of any future permits where 

the authorized activities may affect 

listed species or critical habitat. 

Required Determinations 

Energy Supply, Distribution or Use 

(E.O. 13211). On May 18, 2001, the 

President issued Executive Order 13211 

addressing regulations that affect energy 

supply, distribution, and use. E.O. 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This rule is 

not expected to significantly affect 

energy supplies, distribution, and use, 

except that it provides means to 

authorize otherwise-prohibited impacts 

to eagles that may be necessary in the 

course of supplying and distributing 

some energy in particular localities. 

This action is not a significant energy 

action, and no Statement of Energy 

Effects is required. 

Regulatory Planning and Review 

(Executive Order 12866). The Office of 

Management and Budget (OMB) has 

determined that this rule is significant 

and has reviewed this rule under 

Executive Order 12866 (E.O. 12866). 

OMB bases its determination upon the 

following four criteria: 

(a) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(b) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(c) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(d) Whether the rule raises novel legal 

or policy issues. 

Regulatory Flexibility Act. Under the 

Regulatory Flexibility Act (as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever a Federal agency 

publishes a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions) (5 U.S.C. 601 et seq.). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies that the rule would not 

have a significant economic impact on 

a substantial number of small entities. 

Thus, for a regulatory flexibility analysis 

to be required, impacts must exceed a 

threshold for ‘‘significant economic 

impact’’ and a threshold for a 

‘‘substantial number of small entities.’’ 

See 5 U.S.C. 605(b). SBREFA amended 

the Regulatory Flexibility Act to require 

Federal agencies to provide a statement 

of the factual basis for certifying that a 

rule would not have a significant 

economic impact on a substantial 

number of small entities. 

This rule may benefit a variety of 

small businesses including real estate 

developers and brokers (NAIC 531); 

construction companies (NAIC 23); 

forestry and logging (NAIC 113), farming 

(NAIC 111), and ranching operations 

(NAIC 112); tourism companies (NAIC 

713); utility companies (NAIC 221); and 

others. Across the United States, there 

are 255,871 small real estate companies; 

617,737 small construction companies; 

9,596 small forestry and logging 

companies; 46,730 small tourism 

companies; and 10,173 small utility 

companies. We anticipate receiving 

about 1,140 §22.26 take permit 

applications nationwide annually, and 

about 90 § 22.27 nest take applications 

(including 20 applications for 

programmatic permits under each of the 

two regulations). 

We anticipate issuing approximately 

830 standard § 22.26 take authorizations 

across the United States, 40 standard 

nest-take permits, and 40 programmatic 

permits, per year. Based on past permit 

authorizations under the ESA, we 

anticipate approximately one-third of 

new permit applicants would be small 

businesses. If 303 permittees are small 

businesses within 4–6 different 

industries across the United States, the 

demand would not represent a 

substantial number of small entities in 

individual industries. The economic 

impact to individual small businesses is 

dependent on the type of activity in 

which each business engages. As noted 

in the economic analysis in the 

preamble above, permit applicants will 

incur some costs assembling the 

necessary information for the permit 

application, permit fees, and the costs of 

monitoring and reporting associated 

with the permit. For example, 

applicants will have to pay $500 for 

processing a permit application under § 

22.26 and § 22.27, and $150 for permit 

amendments. In addition, particularly 

for larger projects, there may be 

consultant and/or attorney’s fees 

ranging from a few hundred to 

thousands of dollars. However, if the 

permit applicant is successful, the 

economic benefits to the small entity 

should outweigh the economic costs of 

obtaining the permit. For some 

individual businesses, the benefit may 

be substantial. 

The Department of the Interior 

certifies that this rule will not have a 

significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). 

Small Business Regulatory 

Enforcement Fairness Act (SBREFA). 

This rule is not a major rule under 5 

U.S.C. 804(2), the Small Business 

Regulatory Enforcement Fairness Act. 

This rule: 

a. Will not have an annual effect on 

the economy of $100 million or more. 

The principal economic effect of the 

rule will be to allow the general public, 

small businesses, industry and 

government agencies to obtain take 

permits that allow activities on their 

property where avoiding impacts to 

eagles is not practicable. We are 

anticipating that, due to increasing bald 

eagle populations, there will be an 

increase in the number of applications 

for permits under this rule compared to 

the number of people who sought 

authorization to take eagles under the 

ESA, even though not all activities that 

require ESA authorization would 

require Eagle Act authorization. All 

types of small entities that benefited 

from the issuance of permits under the 

ESA will continue to benefit from 

permits issued under this rule. 

b. Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. Eagle take permits 

will not significantly affect costs or 

prices in any sector of the economy. 

This rule will provide a remedy that 

would allow various members of the 

general public to pursue otherwise 

lawful uses of their property where the 

activity will impact eagles. For example, 

a person wishing to build on his 

property in the vicinity of a bald eagle 

nest may apply under this proposed rule 

for a permit to disturb eagles, whereas 

the option would not be possible after 

delisting without the promulgation of 

these regulations. Another example 

would be a utility that wishes to 


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minimize eagle mortalities and liability 

to itself and so implements conservation 

measures to reduce take to the level 

where any remaining take is 

unavoidable and unauthorized. Whereas 

take of eagles is already prohibited by 

the Eagle Act, the permit represents an 

opportunity for the public to comply 

with the law, but it is not mandatory. 

These regulations make a permit 

available to authorize take that is 

currently prohibited under statute, 

enabling small businesses, industries, 

government agencies, corporations, and 

private individuals to conduct 

legitimate activities in accordance with 

the law. 

c. Does not have a significant adverse 

effect on competition, employment, 

investment, productivity, innovation, or 

the ability of U.S.-based enterprises to 

compete with foreign-based enterprises. 

This regulation establishes a mechanism 

to permit effects from activities within 

the United States that would otherwise 

be prohibited by law. Therefore, the 

effect on competition between U.S. and 

foreign-based enterprises will be to 

benefit U.S. enterprises. There is no 

anticipated negative economic effect to 

small businesses resulting from this 

rule. 

Unfunded Mandates Reform Act. A 

statement containing the information 

required by the Unfunded Mandates 

Reform Act (2 U.S.C. 1531 et seq.) is not 

required. 

a. This rule is not a significant 

regulatory action under the Unfunded 

Mandates Reform Act. A Small 

Government Agency Plan is not 

required. The permit regulations that are 

established through this rulemaking will 

not require actions on the part of small 

governments. 

b. This rule is not a significant 

regulatory action under the Unfunded 

Mandates Reform Act. This rule does 

not impose an unfunded mandate on 

State, local, or tribal governments or the 

private sector of more than $100 million 

per year. 

Takings (E.O. 12630). In accordance 

with Executive Order 12630, the rule 

does not have significant takings 

implications. This rule could affect 

private property by providing owners 

the opportunity to apply for a permit to 

authorize take that would otherwise 

violate the Eagle Act. A takings 

implication assessment is not required. 

Federalism (E.O. 13132). In 

accordance with Executive Order 13132, 

the rule does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

This rule will not interfere with the 

States ability to manage themselves or 

their funds. Changes in the regulations 

governing the take of eagles should not 

result in significant economic impacts 

because this rule would allow for the 

continuation of a current activity (take 

of eagles) albeit under a different statute 

(shifting from the ESA to the Eagle Act). 

The new regulatory process provides 

States the opportunity to cooperate in 

management of bald eagle permits and 

eases the process for permit 

applications. A Federalism Assessment 

is not required. 

Civil Justice Reform (E.O. 12988). In 

accordance with Executive Order 12988, 

the Office of the Solicitor has 

determined that this rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. 

Government-to-Government 

Relationship with Tribes. In accordance 

with Executive Order 13175, 

Consultation and Coordination with 

Tribal Governments (65 FR 67249, Nov. 

9, 2000); the President’s memorandum 

of April 29, 1994, ‘‘Government-toGovernment Relations with Native 

American Tribal Governments’’ (59 FR 

22951); and 512 DM 2, we have 

evaluated potential effects on Federallyrecognized Indian tribes and have 

determined that there may be potential 

effects. Although this rule neither 

interferes with tribes’ ability to manage 

themselves or their funds nor affects the 

operations of the eagle-distribution 

system of the National Eagle Repository, 

it does implement a new eagle-take 

permit policy, and some tribes have 

asserted that take of eagles has 

significant cultural and spiritual effects 

on them. 

To meet our trust responsibility to 

tribes with regard to the unique 

traditional religious and cultural 

significance of eagles to Native 

American communities, we intend to 

minimize impacts by consulting with 

interested tribes prior to 

implementation of this rule, and on a 

case-by-case basis when issuance of 

individual permits may affect particular 

tribes. In addition, this rule provides 

that take of eagles for Native American 

religious purposes be given priority over 

take for any other purpose except safety 

emergencies, which should help ensure 

that Native American religious needs 

are not affected by this rule. 

When we initially proposed this rule 

in June 2007, we contacted each 

recognized tribe with a letter describing 

this action and soliciting input from the 

tribe. We received only three comments 

from tribes on the proposal. We sent a 

second letter to the tribes when we 

released the DEA and re-opened the 

comment period on the proposed rule. 

In response to our draft EA, we heard 

from five tribes, three tribal members, 

and three coalitions or confederations of 

tribes. The majority of these tribes either 

asked the Service to extend the 

comment period on the DEA and reopen rule, or asked the Service to delay 

finalizing the rulemaking until tribes 

were given the opportunity to consult 

with the Service on a government-togovernment basis. We denied those 

requests because of the myriad of other 

interests that would go unmet if we did 

not complete and begin implementing 

the rule in an expeditious manner. 

However, as noted above, we will 

engage interested tribes in consultation 

as we develop the implementation 

guidance for these regulations. 

National Historic Preservation Act. 

Section 106 of the National Historic 

Preservation Act of 1966, as amended 

(NHPA) (16 U.S.C 470 et seq.) requires 

Federal agencies to take into account the 

effects of their undertakings on historic 

properties. Federal agencies accomplish 

this by following the Section 106 

regulations, ‘‘Protection of Historic 

Properties’’ (36 CFR part 800). The 

Section 106 regulations set forth a 

process by which agencies: (1) evaluate 

the effects of any Federal undertaking 

on historic properties (properties 

included in, or eligible for inclusion in, 

the National Register of Historic Places 

(National Register)); (2) consult with 

State Historic Preservation Officers, 

Tribal Historic Preservation Officers, 

and other appropriate consulting parties 

regarding the identification and 

evaluation of historic properties, 

assessment of effects on historic 

properties, and the resolution of adverse 

effects; and (3) consult with appropriate 

American Indian tribes and Native 

Hawaiian organizations to determine 

whether they have concerns about 

historic properties of religious and 

cultural significance in areas of these 

Federal undertakings. 

Some tribes and tribal members may 

consider eagle nests and other areas 

where eagles are present to be sacred 

sites provided for in the American 

Indian Religious Freedom Act of 1978 

(42 U.S.C. 1996) (see below). Such sites 

may also be considered properties of 

traditional religious and cultural 

importance to an Indian tribe 

(commonly referred to as Traditional 

Cultural Properties or TCPs), and as 

potential historic properties of religious 

and cultural importance under the 

NHPA. Such sites are not limited to 

currently recognized Indian lands, and 

they occur across the entire aboriginal 

settlement area. TCPs may be areas 

where eagles nest and have nested 

within living memory. Thus, a landform 

or landscape known for eagle 


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habitation—a ridgeline, canyon, 

lakeshore, river valley, mesa, mountain, 

etc.—may be considered by tribes as 

suitable for TCP designation. 

According to the Section 106 

regulations, a property is considered an 

historic property if it is listed on, or 

eligible for (emphasis added) listing on, 

the National Register. Therefore, a lack 

of formal listing does not lessen the 

need to consider a property; instead, it 

emphasizes the need for close 

coordination with appropriate parties at 

the project planning stage. 

Because an eagle or eagle nest can be 

considered a contributing feature or 

element of a TCP or sacred site, issuance 

of the proposed permits for eagles could 

constitute an undertaking requiring 

compliance with Section 106 of the 

NHPA, and may also require 

government-to-government consultation 

with tribes. The Service would comply 

with Section 106 on a case-by-case basis 

for permits that have the potential to 

have effects on historic properties. 

Where issuance of a permit has the 

potential to affect a TCP, the Service 

Regional Migratory Bird Permit Office 

will coordinate with the Service 

Regional Historic Preservation Officer to 

ensure necessary NHPA consultations 

take place with the appropriate parties. 

We may deny permits or attach 

additional conditions if necessary to 

avoid, minimize, or mitigate adverse 

effects to historic properties. Nothing in 

these regulations limits the Service from 

including additional conditions on 

individual permits for this purpose. 

If it is determined to be more efficient 

for all parties, the Service may consult 

with appropriate stakeholders to 

develop State or regional agreements 

that would govern and resolve 

compliance with the NHPA for the 

issuance of permits in specific States or 

regions. 

American Indian Religious Freedom 

Act. The American Indian Religious 

Freedom Act (AIRFA) (42 U.S.C. 1996) 

sets forth Federal policy to protect and 

preserve the inherent right of American 

Indians to express and exercise their 

traditional religions, including but not 

limited to, access to sites, use and 

possession of sacred objects, and the 

freedom to worship through 

ceremonials and traditional rites. Given 

the special trust relationship between 

the Federal Government and federallyrecognized Indian tribes, the 

accommodation of tribal religious 

practices is in furtherance of the duty of 

the Federal Government to promote 

tribal self-determination. AIRFA would 

be construed in conjunction with the 

Service’s trust responsibility to 

federally-recognized tribes. The Service 

has incorporated these principles into 

this regulation. To address the 

possibility that demand exceeds our 

scientifically-based take thresholds, the 

regulation contains permit-issuance 

criteria to ensure that requests by Native 

Americans to take eagles from the wild, 

where the take is necessary to meet the 

religious purposes of the tribe, are given 

first priority over all other take except, 

as necessary, to alleviate safety 

emergencies. 

Paperwork Reduction Act. This rule 

contains new information collection 

requirements that require approval by 

the Office of Management and Budget. 

The OMB has approved these revisions 

under OMB Control Number 1018-0136, 

which expires on August 31, 2012. We 

have addressed all comments received 

on the proposed rule above in this 

preamble. 

Title: Eagle Take Permits, 50 CFR 

22.26 and 22.27. 

Service Form Number(s): 3-200-71, 3- 

200-72, 3-202-15, and 3-202-16. 

Affected Public: Individuals/ 

households, businesses, and State, local, 

and tribal governments. 

Respondent’s Obligation: Required to 

obtain or retain a benefit. 

Frequency of Collection: On occasion. 

Total Annual Nonhour Cost Burden: 

$261,250 associated with application or 

processing fees. 

ACTIVITY/REQUIREMENT 

ANNUAL NO. OF 

RESPONDENTS 

(non-Federal) 

TOTAL 

ANNUALRESPONSES 

COMPLETION 

TIME PER 

RESPONSE 

TOTAL 

ANNUAL 

BURDEN 

HRS 

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

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

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

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

FWS Forms 3-200-71 and 72 – permit application (programmatic 

take) 

26 26 40 hrs 1,040 

Amendments to standard permits 40 40 6 hrs 240 

Amendments to programmatic permits 10 10 20 hrs 200 

Totals 2,027 2,027 48,362 

We will use the information that we 

collect on permit applications to 

determine the eligibility of applicants 

for permits requested in accordance 

with the Eagle Act. Eagle permit 

regulations (50 CFR 22) and general 

permit regulations (50 CFR 13) stipulate 

general and specific requirements that 

when met allow us to issue permits to 

authorize activities that are otherwise 

prohibited. 

All Service permit applications are in 

the 3-200 series of forms, each tailored 

to a specific activity based on the 

information requirements for specific 

types of permits. The application forms 

for other permits authorized under the 

Eagle Act are covered by OMB Control 

Number 1018-0022. After publication of 

this final rule, we will immediately 

incorporate the new information 

burdens for 22.26 and 22.27 into OMB 

Control Number 1018-0022. 

We will use two additional forms as 

(1) the application for a § 22.26 take 

permit (FWS Form 3-200-71), and (2) 

the application for take of eagle nests 

under § 22.27 (FWS Form 3-200-72). We 

will use new FWS Form 3-202-15 as the 

annual report form for the § 22.26 eagle 

take permit, and new FWS Form 3-202- 

16 as the report form for the § 22.27 nest 

take permit. The information collected 

for eagle permits is part of a system of 


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records covered by the Privacy Act (5 

U.S.C. 552(a)). 

We estimate receiving 1,120 permit 

applications for individual takes under 

§ 22.26; 70 applications for nest take 

permits under § 22.27; and 40 

applications for programmatic permits 

under § 22.26 and § 22.27, annually. We 

expect about one third may be Federal 

Government agencies. Therefore, we 

estimate that approximately 746 nonFederal applicants will apply for eagletake permits, 46 non-Federal applicants 

will submit applications for eagle nest 

take permits, and 26 non-Federal 

applicants will apply for programmatic 

permits. We estimate it will take an 

average of 16 hours to complete an 

application for an individual take 

permit. Programmatic permit 

applications will require more time, 

particularly at the outset as the first 

ones are developed for a given industry. 

As programmatic permits measures are 

developed for particular industries, the 

time it will take to apply for these 

permits will decrease. We estimate that 

the average programmatic take permit 

application will require 40 hours to 

prepare, although early programmatic 

permits that will serve as the 

‘‘prototypes’’ for subsequent 

applications will require more time. 

An agency may not conduct or 

sponsor and a person is not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. The public may 

comment, at any time, on the accuracy 

of the information collection burden in 

this rule and may submit any comments 

to the Information Collection Clearance 

Officer, Fish and Wildlife Service, 

Department of the Interior, 1849 C 

Street, NW., (Mailstop 222-ARLSQ), 

Washington, D.C. 20240. 

National Environmental Policy Act. 

The Service has prepared an 

environmental assessment of this action, 

pursuant to the National Environmental 

Policy Act of 1969, as amended (42 

U.S.C. 4321 et seq.). Copies of the final 

environmental assessment are available 

on our website at http://www.fws.gov/ 

migratorybirds/baldeagle.htm 

Literature Cited 

Good, R. E., R. M. Nielson, H. H. 

Sawyer, and L. L. McDonald. 2004. 

Population level survey of golden eagles 

(Aquila chrysaetos) in the Western 

United States. Final Report submitted to 

the Division of Migratory Bird 

Management, U.S. Fish and Wildlife 

Service. Western Ecosystems 

Technology, Incorporated; Cheyenne, 

Wyoming. 

Good, R. E., R. M. Nielson, L. L. 

McDonald, and D. Tidhar. 2007. Results 

of the 2006 survey of golden eagles 

(Aquila chrysaetos) in the Western 

United States. Report submitted to the 

Division of Migratory Bird Management, 

U.S. Fish and Wildlife Service. Western 

Ecosystems Technology, Incorporated; 

Cheyenne, Wyoming. 

Kirk, D. A. and C. Hyslop. 1998. 

Population status and recent trends in 

Canadian Raptors: A review. Biological 

Conservation 83:91-118. 

Kochert, M. N., K. Steenhof, C. L. 

McIntyre, and E. H. Craig. 2002. Golden 

Eagle (Aquila chrysaetos). Number 684 

in The Birds of North America, A. Poole 

and G. Gill, editors. The Birds of North 

America, Inc., Philadelphia, 

Pennsylvania. 

McIntyre, C. L., D.C. Douglas, and M. 

W. Collopy. 2008. Movements of golden 

eagles (Aquila chrysaetos) from interior 

Alaska during their first year of 

independence. Auk 125:214-224. 

Millsap, Brian and George Allen. 

2006. Effects of Falconry Harvest on 

Wild Raptor Populations in the United 

States: Theoretical Considerations and 

Management Recommendations. 

Wildlife Society Bulletin, 34(5):1392- 

1400. 

U.S. Fish and Wildlife Service. 2007. 

National Bald Eagle Management 

Guidelines, Arlington, Virginia. 

List of Subjects in 50 CFR Part 13 

Administrative practice and 

procedure, Exports, Fish, Imports, 

Plants, Reporting and record keeping 

requirements, Transportation, Wildlife. 

List of Subjects in 50 CFR Part 22 

Birds, Exports, Imports, Migratory 

Birds, Reporting and recordkeeping 

requirements, Transportation, Wildlife. 

Regulation Promulgation 

■ For the reasons described in the 

preamble, we amend Subchapter B of 

Chapter I, Title 50 of the Code of 

Federal Regulations, as set forth below: 

PART 13—GENERAL PERMIT 

PROCEDURES 

■ 1. The authority citation for part 13 

continues to read as follows: 

Authority: 16 U.S.C. 668a, 704, 712, 742j1, 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 the table in § 13.11(d)(4) as 

follows: 

■ a. Under the heading ‘‘Bald and 

Golden Eagle Protection Act,’’ remove 

the entry for ‘‘Eagle Depredation’’ and 

replace it with a new entry for ‘‘Eagle 

Take Permits—Depredation and 

Protection of Health and Safety’’; and 

■ b. Add four entries under ‘‘Bald and 

Golden Eagle Protection Act’’ in the 

table immediately following the entry 

for ‘‘Eagle Transport—Native American 

Religious Purposes,’’ to read as follows: 

§ 13.11 Application procedures. 

* * * * * 

(d) * * * 

(4) User fees. * * * 

Type of Permit CFR citation Fee Amendment Fee 

* * * * * 

Bald and Golden Eagle Protection Act 

* * * * * * * 

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

* * * * * * * 

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

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

Eagle Nest Take 50 CFR 22 500 150 

Eagle Nest Take—Programmatic 50 CFR 22 1000 500 

* * * * * * * 


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* * * * * 

■ 3. Amend the table in §13.12(b) as 

follows: 

■ a. Under ‘‘Eagle permits,’’ remove the 

entry for ‘‘Depredation control’’ and 

replace it with ‘‘Depredation and 

Protection of Health and Safety’’; and 

■ b. Add to the table the following 

entries in numerical order by section 

number to read as follows: 

§ 13.12 General information requirements 

on applications for permits. 

* * * * * 

(b) * * * 

Type of permit Section 

* * * * * 

Eagle permits: 

* * * * * 

Depredation and Protection of 

Health and Safety 

22.23 

* * * * * 

Eagle Take—Associated With 

but Not the Purpose of an 

Activity 

22.26 

Eagle Nest Take 22.27 

* * * * * 

PART 22—EAGLE PERMITS 

■ 4. The authority citation for part 22 

continues to read as follows: 

Authority: 16 U.S.C. 668–668d; 16 U.S.C. 

703–712; 16 U.S.C. 1531–1544. 

■ 5. Amend § 22.3 as follows: 

■ a. By revising the introductory 

paragraph to read as set forth below; 

■ b. By removing the definition of 

‘‘Golden eagle nest’’; 

■ c. By revising the definitions of 

‘‘Inactive nest’’ and Take’’ to read as set 

forth below; and 

■ d. By adding new definitions for 

‘‘Advanced conservation practices’’, 

‘‘Communal roost site’’, ‘‘Cumulative 

effects’’, ‘‘Eagle nest’’, ‘‘Foraging area’’, 

‘‘Important eagle-use area’’, ‘‘Indirect 

effects’’, ‘‘Maximum degree achievable’’, 

‘‘Necessary to ensure public health and 

safety’’, ‘‘Practicable’’, ‘‘Programmatic 

permit’’, ‘‘Programmatic take’’, ‘‘Safety 

emergency’’ and ‘‘Territory’’ to read as 

set forth below. 

§ 22.3 What definitions do you need to 

know? 

In addition to the definitions 

contained in part 10 of this subchapter, 

and unless the context otherwise 

requires, in this part 22: 

Advanced conservation practices 

means scientifically supportable 

measures that are approved by the 

Service and represent the best available 

techniques to reduce eagle disturbance 

and ongoing mortalities to a level where 

remaining take is unavoidable. 

* * * * * 

Communal roost site means an area 

where eagles gather repeatedly in the 

course of a season and shelter overnight 

and sometimes during the day in the 

event of inclement weather. 

Cumulative effects means the 

incremental environmental impact or 

effect of the proposed action, together 

with impacts of past, present, and 

reasonably foreseeable future actions. 

* * * * * 

Eagle nest means any readily 

identifiable structure built, maintained, 

or used by bald eagles or golden eagles 

for the purpose of reproduction. 

* * * * * 

Foraging area means an area where 

eagles regularly feed during one or more 

seasons. 

* * * * * 

Important eagle-use area means an 

eagle nest, foraging area, or communal 

roost site that eagles rely on for 

breeding, sheltering, or feeding, and the 

landscape features surrounding such 

nest, foraging area, or roost site that are 

essential for the continued viability of 

the site for breeding, feeding, or 

sheltering eagles. 

Inactive nest means a bald eagle or 

golden eagle nest that is not currently 

being used by eagles as determined by 

the continuing absence of any adult, 

egg, or dependent young at the nest for 

at least 10 consecutive days 

immediately prior to, and including, at 

present. An inactive nest may become 

active again and remains protected 

under the Eagle Act. 

Indirect effects means effects for 

which a proposed action is a cause, and 

which may occur later in time and/or be 

physically manifested beyond the initial 

impacts of the action, but are still 

reasonably likely to occur. 

Maximum degree achievable means 

the standard at which any take that 

occurs is unavoidable despite 

implementation of advanced 

conservation practices. 

Necessary to ensure public health and 

safety means required to maintain 

society’s well-being in matters of health 

and safety. 

* * * * * 

Practicable means capable of being 

done after taking into consideration, 

relative to the magnitude of the impacts 

to eagles, the following three things: the 

cost of remedy compared to proponent 

resources; existing technology; and 

logistics in light of overall project 

purposes. 

Programmatic permit means a permit 

that authorizes programmatic take. A 

programmatic permit can cover other 

take in addition to programmatic take. 

Programmatic take means take that is 

recurring, is not caused solely by 

indirect effects, and that occurs over the 

long term or in a location or locations 

that cannot be specifically identified. 

* * * * * 

Safety emergency means a situation 

that necessitates immediate action to 

alleviate a threat of bodily harm to 

humans or eagles. 

Take means pursue, shoot, shoot at, 

poison, wound, kill, capture, trap, 

collect, destroy, molest, or disturb. 

Territory means an area that contains, 

or historically contained, one or more 

nests within the home range of a mated 

pair of eagles. 

* * * * * 

■ 6. Amend § 22.4 as follows: 

■ a. In paragraph (a), the first sentence, 

by adding ‘‘and 1018-0136’’ 

immediately following ‘‘1018-0022’’; 

and 

■ b. By revising paragraph (b) to read as 

follows: 

§ 22.4 Information collection requirements. 

* * * * * 

(b) Direct comments regarding any 

aspect of these reporting requirements 

to the Service Information Collection 

Control Officer, MS-222 ARLSQ, U.S. 

Fish and Wildlife Service, Washington, 

DC 20240, or the Office of Management 

and Budget, Paperwork Reduction 

Project (1018-0022 and 1018-0136), 

Washington, DC 20603. 

■ 7. Amend § 22.23 by revising: 

■ a. The section heading; 

■ b. Paragraph (a) introductory text and 

paragraphs (a)(5) and (a)(6); 

■ c. Paragraph (b) introductory text; 

■ d. Paragraph (c) introductory text and 

paragraphs (c)(2) and (c)(3); and 

■ e. Paragraph (d), to read as follows: 

§ 22.23 What are the requirements for 

permits to take depredating eagles and 

eagles that pose a risk to human or eagle 

health and safety? 

(a) How do I apply for a permit? You 

must submit applications for permits 

under this section to the appropriate 

Regional Director—Attention: Migratory 

Bird Permit Office. You can find 

addresses for the appropriate Regional 

Directors in 50 CFR 2.2. Your 

application must contain the 

information and certification required 

by § 13.12(a) of this subchapter, and the 

following additional information: 

* * * * * 


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(5) Kind and number of livestock or 

domestic animals owned by applicant, if 

applicable; 

(6) Kind and amount of alleged 

damage, or description of the risk posed 

to human health and safety or eagles; 

and 

* * * * * 

(b) What are the permit conditions? In 

addition to the general conditions set 

forth in part 13 of this subchapter B, 

permits to take bald or golden eagles 

under this section are subject to the 

following conditions: 

* * * * * 

(c) Issuance criteria. The Director will 

not issue a permit to take bald or golden 

eagles unless the Director has 

determined that such taking is 

compatible with the preservation of the 

bald or golden eagle. In making such 

determination, the Director will 

consider the following: 

* * * * * 

(2) Whether evidence shows that bald 

or golden eagles have in fact become 

seriously injurious to wildlife or to 

agriculture or other interests in the 

particular locality to be covered by the 

permit and the injury complained of is 

substantial, or that bald or golden eagles 

pose a significant risk to human or eagle 

health and safety; and 

(3) Whether the only way to abate or 

prevent the damage caused by the bald 

or golden eagle is to take some or all of 

the offending birds. 

(d) Tenure of permits. The tenure of 

any permit to take bald or golden eagles 

under this section is that shown on the 

face of the permit. We will not issue 

these permits for terms longer than 90 

days, except that permits to authorize 

disturbance associated with hazing 

eagles from the vicinity may be valid for 

up to 5 years. We may amend, suspend, 

or revoke permits issued for a period of 

longer than 90 days if new information 

indicates that revised permit conditions 

are necessary, or that suspension or 

revocation is necessary, to safeguard 

local or regional eagle populations. 

■ 8. Amend part 22, subpart C, by 

adding new § 22.26 and § 22.27 to read 

as follows: 

Subpart C—Eagle Permits 

* * * * * 

§ 22.26 Permits for eagle take that is 

associated with, but not the purpose of, an 

activity. 

(a) Purpose and scope. This permit 

authorizes take of bald eagles and 

golden eagles where the take is 

compatible with the preservation of the 

bald eagle and the golden eagle; 

necessary to protect an interest in a 

particular locality; associated with but 

not the purpose of the activity; and 

(1) For individual instances of take: 

the take cannot practicably be avoided; 

or 

(2) For programmatic take: the take is 

unavoidable even though advanced 

conservation practices are being 

implemented. 

(b) Definitions. In addition to the 

definitions contained in part 10 of this 

subchapter, and § 22.3, the following 

definition applies in this section: 

Eagle means a live bald eagle 

(Haliaeetus leucocephalus), live golden 

eagle (Aquila chrysaetos), a bald eagle 

egg, or a golden eagle egg. 

(c) Permit conditions. In addition to 

the conditions set forth in part 13 of this 

subchapter, which govern permit 

renewal, amendment, transfer, 

suspension, revocation, and other 

procedures and requirements for all 

permits issued by the Service, your 

authorization is subject to the following 

additional conditions: 

(1) You must comply with all 

avoidance, minimization, or other 

mitigation measures determined by the 

Director as reasonable and specified in 

the terms of your permit to compensate 

for the detrimental effects, including 

indirect effects, of the permitted activity 

on the regional eagle population; 

(2) You may be required to monitor 

eagle use of important eagle-use areas 

where eagles are likely to be affected by 

your activities for up to 3 years after 

completion of the activity or as set forth 

in a separate management plan, as 

specified on your permit. Unless 

different monitoring protocols are 

required under a separate management 

plan approved by the Service and 

denoted on the permit, monitoring 

consists of periodic site visits, during 

the season(s) when eagles would 

normally be present, to the area where 

the take is likely to occur, and noting 

whether eagles continue to nest, roost, 

or forage there. The periodic monitoring 

is required for the duration of the 

activity that is likely to cause take 

(during the season(s) that eagles would 

normally be present). The frequency and 

duration of required monitoring after 

the activity is completed will depend on 

the form and magnitude of the 

anticipated take and the objectives of 

associated conservation measures, not to 

exceed what is reasonable to meet the 

primary purpose of the monitoring, 

which is to provide data needed by the 

Service regarding the impacts of human 

activity on eagles for purposes of 

adaptive management. Monitoring will 

not be required beyond 3 years after 

completion of an activity that was likely 

to cause take. For ongoing activities and 

enduring site features that continue to 

be likely to result in take, periodic 

monitoring may be required for as long 

as the data are needed to assess impacts 

to eagles. 

(3) You must submit an annual report 

summarizing the information you 

obtained through monitoring to the 

Service every year that your permit is 

valid and for up to 3 years after 

completion of the activity or 

termination of the permit, as specified 

in your permit. If your permit expires or 

is suspended or revoked before the 

activity is completed, you must submit 

the report within 60 days of such date. 

Reporting requirements include: 

(i) Whether eagles are observed using 

the important eagle-use areas designated 

on the permit; and 

(ii) Description of the human 

activities conducted at the site when 

eagles are observed. 

(4) While the permit is valid and for 

up to 3 years after it expires, you must 

allow Service personnel, or other 

qualified persons designated by the 

Service, access to the areas where eagles 

are likely to be affected, at any 

reasonable hour, and with reasonable 

notice from the Service, for purposes of 

monitoring eagles at the site(s). 

(5) The authorizations granted by 

permits issued under this section apply 

only to take that results from activities 

conducted in accordance with the 

description contained in the permit 

application and the terms of the permit. 

If the permitted activity changes after a 

permit is issued, you must immediately 

contact the Service to determine 

whether a permit amendment is 

required in order to retain take 

authorization. 

(6) You must contact the Service 

immediately upon discovery of any 

unanticipated take. 

(7) The Service may amend, suspend, 

or revoke a programmatic permit issued 

under this section if new information 

indicates that revised permit conditions 

are necessary, or that suspension or 

revocation is necessary, to safeguard 

local or regional eagle populations. This 

provision is in addition to the general 

criteria for amendment, suspension, and 

revocation of Federal permits set forth 

in §§ 13.23, 13.27, and 13.28. 

(8) Notwithstanding the provisions of 

§ 13.26 of this subchapter, you remain 

responsible for all outstanding 

monitoring requirements and mitigation 

measures required under the terms of 

the permit for take that occurs prior to 

cancellation, expiration, suspension, or 

revocation of the permit. 

(9) You must promptly notify the 

Service of any eagle(s) found injured or 


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dead at the activity site, regardless of 

whether the injury or death resulted 

from your activity. The Service will 

determine the disposition of such 

eagles. 

(10) The authorization granted by 

permits issued under this section is not 

valid unless you are in compliance with 

all Federal, tribal, State, and local laws 

and regulations applicable to take of 

eagles. 

(d) Applying for an eagle take permit. 

(1) You are advised to coordinate with 

the Service as early as possible for 

advice on whether a permit is needed 

and for technical assistance in 

assembling your permit application 

package. The Service may provide 

guidance on developing complete and 

adequate application materials and will 

determine when the application form 

and materials are ready for submission. 

(2) Your application must consist of a 

completed application Form 3-200-71 

and all required attachments. Send 

applications to the Regional Director of 

the Region in which the disturbance 

would occur—Attention: Migratory Bird 

Permit Office. You can find the current 

addresses for the Regional Directors in 

§2.2 of subchapter A of this chapter. 

(e) Evaluation of applications. In 

determining whether to issue a permit, 

we will evaluate: 

(1) Whether take is likely to occur 

based on the magnitude and nature of 

the impacts of the activity, which 

include indirect effects. For potential 

take in the form of disturbance, this 

evaluation would include: 

(i) The prior exposure and tolerance 

to similar activity of eagles in the 

vicinity; 

(ii) Visibility of the activity from the 

eagle’s nest, roost, or foraging perches; 

and 

(iii) Whether alternative suitable eagle 

nesting, roosting, and/or feeding areas 

that would not be detrimentally affected 

by the activity are available to the eagles 

potentially affected by the activity. 

(2) Whether the take is: 

(i) Compatible with the preservation 

of the bald eagle and the golden eagle, 

including consideration of indirect 

effects and the cumulative effects of 

other permitted take and other 

additional factors affecting eagle 

populations; 

(ii) Associated with the permanent 

loss of an important eagle use area; 

(iii) Necessary to protect a legitimate 

interest in a particular locality; and 

(iv) Associated with, but not the 

purpose of, the activity. 

(3) Whether the applicant has 

proposed avoidance and minimization 

measures to reduce the take to the 

maximum degree practicable, and for 

programmatic authorizations, the take is 

unavoidable despite application of 

advanced conservation practices 

developed in coordination with the 

Service. 

(4) Whether issuing the permit would 

preclude the Service from authorizing 

another take necessary to protect an 

interest of higher priority, according to 

the following prioritization order: 

(i) Safety emergencies; 

(ii) Native American religious use for 

rites and ceremonies that require eagles 

be taken from the wild; 

(iii) Renewal of programmatic take 

permits; 

(iv) Non-emergency activities 

necessary to ensure public health and 

safety; and 

(v) Other interests. 

(5) Any additional factors that may be 

relevant to our decision whether to 

issue the permit, including, but not 

limited to, the cultural significance of a 

local eagle population. 

(f) Required determinations. Before 

we issue a permit, we must find that: 

(1) The direct and indirect effects of 

the take and required mitigation, 

together with the cumulative effects of 

other permitted take and additional 

factors affecting eagle populations, are 

compatible with the preservation of bald 

eagles and golden eagles; 

(2) The taking is necessary to protect 

a legitimate interest in a particular 

locality; 

(3) The taking is associated with, but 

not the purpose of, the activity; 

(4) The taking cannot practicably be 

avoided; or for programmatic 

authorizations, the take is unavoidable; 

(5) The applicant has avoided and 

minimized impacts to eagles to the 

extent practicable, and for programmatic 

authorizations, the taking will occur 

despite application of advanced 

conservation practices; and 

(6) Issuance of the permit will not 

preclude issuance of another permit 

necessary to protect an interest of higher 

priority as set forth in paragraph (e)(4) 

of this section. 

(g) We may deny issuance of a permit 

if we determine that take is not likely to 

occur. 

(h) Permit duration. The duration of 

each permit issued under this section 

will be designated on its face, and will 

be based on the duration of the 

proposed activities, the period of time 

for which take will occur, the level of 

impacts to eagles, and mitigation 

measures, but will not exceed 5 years. 

§ 22.27 Removal of eagle nests. 

(a) Purpose and scope. 

(1) A permit may be issued under this 

section to authorize removal or 

relocation of: 

(i) An active or inactive nest where 

necessary to alleviate a safety 

emergency; 

(ii) An inactive eagle nest when the 

removal is necessary to ensure public 

health and safety; 

(iii) An inactive nest that is built on 

a human-engineered structure and 

creates a functional hazard that renders 

the structure inoperable for its intended 

use; or 

(iv) An inactive nest, provided the 

take is necessary to protect an interest 

in a particular locality and the activity 

necessitating the take or the mitigation 

for the take will, with reasonable 

certainty, provide a clear and 

substantial benefit to eagles. 

(2) Where practicable and biologically 

warranted, the permit may require a 

nest to be relocated, or a substitute nest 

provided, in a suitable site within the 

same territory to provide a viable 

nesting option for eagles within that 

territory, unless such relocation would 

create a threat to safety. However, we 

may issue permits to remove nests that 

we determine cannot or should not be 

relocated. The permit may authorize 

take of eggs or nestlings if present. The 

permit may also authorize the take of 

adult eagles (e.g., disturbance or 

capture) associated with the removal or 

relocation of the nest. 

(3) A programmatic permit may be 

issued under this section to cover 

multiple nest takes over a period of up 

to 5 years, provided the permittee 

complies with comprehensive measures 

that are developed in coordination with 

the Service, designed to reduce take to 

the maximum degree technically 

achievable, and specified as conditions 

of the permit. 

(4) This permit does not authorize 

intentional, lethal take of eagles. 

(b) Conditions. 

(1) Except for take that is necessary to 

alleviate an immediate threat to human 

or eagle safety, only inactive eagle nests 

may be taken under this permit. 

(2) When an active nest must be 

removed under this permit, any take of 

nestlings or eggs must be conducted by 

a Service-approved, qualified, and 

permitted agent, and all nestlings and 

viable eggs must be immediately 

transported to foster/recipient nests or a 

rehabilitation facility permitted to care 

for eagles, as directed by the Service. 

(3) Possession of the nest for any 

purpose other than removal or 

relocation is prohibited without a 

separate permit issued under this part 

authorizing such possession. 

(4) You must submit a report 

consisting of a summary of the activities 

conducted under the permit to the 

Service within 30 days after the 


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Federal Register / Vol. 74, No. 175 / Friday, September 11, 2009 / Rules and Regulations 46879 

permitted take occurs, except that for 

programmatic permits, you must report 

each nest removal within 10 days after 

the take and submit an annual report by 

January 31 containing all the 

information required in Form 3-202-16 

for activities conducted during the 

preceding calendar year. 

(5) You may be required to monitor 

the area and report whether eagles 

attempt to build or occupy another nest 

at another site in the vicinity for the 

duration specified in the permit. 

(6) You may be required under the 

terms of the permit to harass eagles from 

the area following the nest removal 

when the Service determines it is 

necessary to prevent eagles from renesting in the vicinity. 

(7) You must comply with all 

avoidance, minimization, or other 

mitigation measures determined by the 

Director as reasonable and specified in 

the terms of your permit to compensate 

for the detrimental effects, including 

indirect effects, of the permitted activity 

on—and for permits issued under 

paragraph (a)(1)(iv) of this section, to 

provide a net benefit to—the regional 

eagle population. 

(8) The Service may amend or revoke 

a programmatic permit issued under 

this section if new information indicates 

that revised permit conditions are 

necessary, or that suspension or 

revocation is necessary, to safeguard 

local or regional eagle populations. 

(9) Notwithstanding the provisions of 

§13.26 of this subchapter, you remain 

responsible for all outstanding 

monitoring requirements and mitigation 

measures required under the terms of 

the permit for take that occurs prior to 

cancellation, expiration, suspension, or 

revocation of the permit. 

(10) The authorization granted by 

permits issued under this section is not 

valid unless you are in compliance with 

all Federal, tribal, State, and local laws 

and regulations applicable to take of 

eagles. 

(c) Applying for a permit to take eagle 

nests. 

(1) If the take is necessary to address 

an immediate threat to human or eagle 

safety, contact your local U.S. Fish and 

Wildlife Service Regional Migratory 

Bird Permit Office (http://www.fws.gov/ 

permits/mbpermits/addresses.html) at 

the earliest possible opportunity to 

inform the Service of the emergency. 

(2) Your application must consist of a 

completed application Form 3-200-72 

and all required attachments. Send 

applications to the Regional Director of 

the Region in which the disturbance 

would occur—Attention: Migratory Bird 

Permit Office. You can find the current 

addresses for the Regional Directors in 

§2.2 of subchapter A of this chapter. 

(d) Evaluation of applications. In 

determining whether to issue a permit, 

we will evaluate: 

(1) Whether the activity meets the 

requirements of paragraph (a)(1) of this 

section; 

(2) The direct and indirect effects of 

the take and required mitigation, 

together with the cumulative effects of 

other permitted take and additional 

factors affecting eagle populations; 

(3) Whether there is a practicable 

alternative to nest removal that will 

protect the interest to be served; 

(4) Whether issuing the permit would 

preclude the Service from authorizing 

another take necessary to protect an 

interest of higher priority, as set forth in 

paragraph (e)(5) of this section; 

(5) For take that is not necessary to 

alleviate an immediate safety 

emergency, whether suitable nesting 

and foraging habitat is available to 

accommodate eagles displaced by the 

nest removal; and 

(6) Any additional factors that may be 

relevant to our decision whether to 

issue the permit, including, but not 

limited to, the cultural significance of a 

local eagle population. 

(e) Required determinations. Before 

issuing a permit under this section, we 

must find that: 

(1) The direct and indirect effects of 

the take and required mitigation, 

together with the cumulative effects of 

other permitted take and additional 

factors affecting eagle populations, are 

compatible with the preservation of the 

bald eagle or the golden eagle; 

(2) For inactive nests: 

(i) The take is necessary to ensure 

public health and safety; 

(ii) The nest is built on a humanengineered structure and creates a 

functional hazard that renders the 

structure inoperable for its intended 

use; or 

(iii) The take is necessary to protect a 

legitimate interest in a particular 

locality, and the activity necessitating 

the take or the mitigation for the take 

will, with reasonable certainty, provide 

a clear and substantial benefit to eagles; 

(3) For active nests, the take is 

necessary to alleviate an immediate 

threat to human safety or eagles; 

(4) There is no practicable alternative 

to nest removal that would protect the 

interest to be served; and 

(5) Issuing the permit will not 

preclude the Service from authorizing 

another take necessary to protect an 

interest of higher priority, according to 

the following prioritization order: 

(i) Safety emergencies; 

(ii) Native American religious use for 

rites and ceremonies that require eagles 

be taken from the wild; 

(iii) Renewal of programmatic nesttake permits; 

(iv) Non-emergency activities 

necessary to ensure public health and 

safety; 

(v) Resource development or recovery 

operations (under § 22.25, for golden 

eagle nests only); 

(vi) Other interests. 

(6) For take that is not necessary to 

alleviate an immediate threat to human 

safety or eagles, we additionally must 

find that suitable nesting and foraging 

habitat is available to the area nesting 

population of eagles to accommodate 

any eagles displaced by the nest 

removal. 

(f) Tenure of permits. The tenure of 

any permit to take eagle nests under this 

section is set forth on the face of the 

permit and will not be longer than 5 

years. 

■ 9. Amend § 22.28 by revising 

paragraphs (a) and (b) to read as follows: 

§ 22.28 Permits for bald eagle take 

exempted under the Endangered Species 

Act. 

(a) Purpose and scope. This permit 

authorizes take of bald eagles 

(Haliaeetus leucocephalus) in 

compliance with the terms and 

conditions of a section 7 incidental take 

statement under the Endangered Species 

Act of 1973, as amended (ESA) (16 

U.S.C. 1531 et seq.; 50 CFR 402, Subpart 

B) issued prior to the effective date of 

50 CFR 22.26. 

(b) Issuance criteria. Before issuing 

you a permit under this section, we 

must find that you are in full 

compliance with the terms and 

conditions contained in the applicable 

ESA incidental take statement issued 

prior to the effective date of 50 CFR 

22.26 for take of eagles, based on your 

certification and any other relevant 

information available to us, including, 

but not limited to, monitoring or 

progress reports required pursuant to 

your incidental take statement. The 

terms and conditions of the Eagle Act 

permit under this section, including any 

modified terms and conditions, must be 

compatible with the preservation of the 

bald eagle. 

* * * * * 

Dated: May 18, 2009. 

Will Shafroth, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. E9–21589 Filed 9–10– 09; 8:45 am] 

BILLING CODE 4310–55–S 


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