Federal Register / Vol. 72, No. 107 / Tuesday, June 5, 2007 / Proposed Rules 31141 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Parts 13 and 22 

RIN 1018–AV11 

Authorizations Under the Bald and 

Golden Eagle Protection Act for Take 

of Eagles 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: In anticipation of possible 

removal (delisting) of the bald eagle 

from the List of Threatened and 

Endangered Wildlife under the 

Endangered Species Act (ESA), the U.S. 

Fish and Wildlife Service (‘‘we’’ or ‘‘the 

Service’’) is proposing new permit 

regulations to authorize the take of bald 

and golden eagles under the Bald and 

Golden Eagle Protection Act (Eagle Act), 

generally where the take to be 

authorized is associated with otherwise 

lawful activities. Second, we are 

proposing regulatory provisions to 

provide take authorization under the 

Eagle Act to ESA section 10 permittees 

who continue to operate in full 

compliance with the terms and 

conditions of their existing permits. 

Additionally, these proposed permit 

regulations would establish permit 

provisions for intentional take of eagle 

nests in rare cases where their location 

poses a risk to human safety or to the 

eagles themselves. 

DATES: We will accept written 

comments on this proposed rule until 

September 4, 2007. 

ADDRESSES: You may submit comments 

and other information, identified by RIN 

1018–AV11, by any of the following 

methods: 

• Mail or hand-delivery: Division of 

Migratory Bird Management, Attn: RIN 

1018–AV11, U.S. Fish and Wildlife 

Service, 4401 N. Fairfax Drive, MBSP– 

4107, Arlington, Virginia 22203. 

• E-mail: 

EaglePermitRegulation@fws.gov. Include 

‘‘RIN 1018–AV11’’ in the subject line of 

the message. Please submit electronic 

comments in plain text files, avoiding 

the use of special characters and 

encryption. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions on the site for submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Eliza Savage, Division of Migratory Bird 

Management, U.S. Fish and Wildlife 

Service, 4401 North Fairfax Drive, 

Mailstop 4107, Arlington, Virginia 

22203–1610; or 703–358–2329. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We are soliciting public comments on 

this proposed rule. You may submit 

your comments by any one of the 

methods provided in the ADDRESSES

section. The comment due date is listed 

in the DATES section. All submissions 

we receive must include the agency 

name and Regulatory Identification 

Number (RIN) for this rulemaking, 

which is 1018–AV11. In the event that 

our Internet connection is not 

functional, please submit your 

comments by the alternate methods 

mentioned in the ADDRESSES section. 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 

be made publicly available at any time. 

While you can ask us in your comment 

to withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

The Director of the Service will take 

into consideration the relevant 

comments, suggestions, or objections 

that are received by the comment due 

date indicated above in DATES. These 

comments, suggestions, or objections, 

and any additional information 

received, may lead the Director to adopt 

a final rulemaking that differs from this 

proposal. 

Background 

The Bald and Golden Eagle Protection 

Act (16 U.S.C. 668–668d) (Eagle Act) 

prohibits the take of bald and golden 

eagles unless pursuant to regulations 

(and in the case of bald eagles, take can 

only be authorized under a permit). 

While the bald eagle is listed under the 

ESA (16 U.S.C. 1531 et seq.), 

authorizations for incidental take of 

bald eagles have been granted through 

the ESA’s section 10 incidental take 

permits and ESA’s section 7 incidental 

take statements, issued with assurances 

that the Service would exercise 

enforcement discretion in relation to 

violations of the Eagle Act and 

Migratory Bird Treaty Act (16 U.S.C. 

703–712) (MBTA). Upon delisting, all 

prohibitions contained in the ESA, such 

as those that prescribe the take of bald 

eagles, would no longer apply. 

However, the potential for human 

activities to violate Federal law by 

taking eagles remains under the 

prohibitions of the Eagle Act and the 

MBTA. The Eagle Act defines the ‘‘take’’ 

of an eagle to include a broad range of 

actions: ‘‘pursue, shoot, shoot at, 

poison, wound, kill, capture, trap, 

collect, or molest or disturb’’; the 

broadest of these terms is ‘‘disturb.’’ 

‘‘Disturb’’ has now been defined by the 

Service in regulations at 50 CFR 22.3 as: 

‘‘to agitate or bother a bald or golden 

eagle to a degree that causes, or is likely 

to cause, based on the best scientific 

information available, (1) injury to an 

eagle, (2) a decrease in its productivity, 

by substantially interfering with normal 

breeding, feeding, or sheltering 

behavior, or (3) nest abandonment, by 

substantially interfering with normal 

breeding, feeding, or sheltering 

behavior.’’ (See the final rule defining 

‘‘disturb’’ under the Eagle Act, 

published in today’s Federal Register.) 

Many actions that are considered 

likely to incidentally take (harm or 

harass) eagles under the ESA will also 

disturb or otherwise take eagles under 

the Eagle Act. The regulatory definitions 

of ‘‘harm,’’ ‘‘harass,’’ and ‘‘disturb,’’ 

differ from each other; but overlap in 

many ways. The only court to have 

addressed the relationship between the 

prohibitions of the ESA and the Eagle 

Act stated: 

Both the ESA and the Eagle Protection Act 

prohibit the take of bald eagles, and the 

respective definitions of ‘‘take’’ do not 

suggest that the ESA provides more 

protection for bald eagles than the Eagle 

Protection Act* * *. The plain meaning of 

the term ‘‘disturb’’ is at least as broad as the 

term ‘‘harm,’’ and both terms are broad 

enough to include adverse habitat 

modification. (Contoski v. Scarlett, Civ No. 

05–2528 (JRT/RLE), slip op. at 5–6 (D. Minn. 

Aug 10, 2006).) 

Currently, there is no regulatory 

mechanism in place under the Eagle Act 

that permits take of bald or golden 

eagles comparable to under the ESA. We 

propose to add a new section at 50 CFR 

22.26 to authorize the issuance of 

permits to take of bald and golden 

eagles on a limited basis. The 

regulations would be applicable to 

golden eagles as well as bald eagles. In 

comparison with requirements under 

the ESA, the permitting process we are 

proposing under the Eagle Act would be 

less burdensome for the public to 

comply with, while continuing to 

provide appropriate protection for bald 

and golden eagles. Take of bald or 

golden eagles would be authorized only 

where it is determined to be compatible 

with the preservation of bald and golden 

eagles and cannot practicably be 

avoided. 

We propose to use expedited 

procedures under this new permit 

process to issue Eagle Act permits for 

take in compliance with previously 

granted ESA section 7 incidental take 

statements. The expedited permitting 


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process would also be used to provide 

Eagle Act authorization for take of bald 

eagles where the bald eagle was the only 

listed species covered by an ESA 

Habitat Conservation Plan (HCP). We 

are also proposing regulatory revisions 

to 50 CFR 22.11 to allow persons with 

a valid ESA section 10 permit that 

covers multiple species in addition to 

the bald or golden eagle (and is 

therefore still a valid permit even if the 

bald eagle is delisted) to continue to use 

that permit as the Eagle Act 

authorization for the same activity as it 

relates to bald or golden eagles. This 

provision would also apply to the take 

of bald and golden eagles that are 

covered as non-listed species in future 

HCPs. 

Finally, we propose to add a new 

section at 50 CFR 22.27 to authorize the 

removal of bald and golden eagle nests 

that pose a hazard to human safety or to 

the welfare of eagles. We also propose 

to introduce and define certain terms 

under the Eagle Act. Permit issuance 

under § 22.26 and § 22.27 would be 

governed by the permit provisions 

presently in 50 CFR parts 13 and 22, 

and new provisions we are proposing to 

add to § 22.26 and § 22.27. 

History 

Prior to the arrival of Europeans, the 

bald eagle population in the lower 48 

contiguous States is estimated to have 

been 250,000 to 500,000 birds. The first 

declines in bald eagle populations began 

in the mid to late 1800s. Shooting of 

eagles for feathers and trophies, various 

forms of predator control, and loss and 

conversion of habitats contributed to the 

general decline in numbers until the 

mid-1940s (U.S. Fish and Wildlife 

Service 1999). Widespread concern for 

the future of the bald eagle led Congress 

to pass the Bald Eagle Protection Act in 

1940 (16 U.S.C. 668–668d). The Act 

prohibited, among other things, the 

taking, possession, and sale of bald 

eagles or their parts, eggs, or nests. 

When passed, the Act did not apply in 

the then-territory of Alaska. In 1953, 

after lengthy studies demonstrated that 

bald eagles did not affect salmon 

population levels, the remaining 

bounties on eagles in Alaska were 

eliminated. The Act was amended in 

1959 to include Alaska. The law was 

further amended in 1962 to protect the 

golden eagle, in part because of the 

difficulty in distinguishing golden 

eagles from immature bald eagles. It was 

then renamed the Bald and Golden 

Eagle Protection Act. 

Passage of the Eagle Act and 

promulgation of eagle regulations (50 

CFR part 22) probably eliminated many 

of the major threats to eagles throughout 

the United States, and may have helped 

to slow the decline of eagle numbers. 

However, the widespread use of 

organochlorine pesticides after World 

War II created a persistent threat to the 

survival of the bald eagle in the 

continental United States. Beginning in 

the late 1940s, dichloro-diphenyltrichloroethane (DDT) was extensively 

used for mosquito control and later as 

a general crop pesticide. As DDT use 

increased, the chemical and its 

metabolites began to accumulate in the 

prey base of the bald eagle and later in 

the tissues of the eagles consuming 

contaminated prey. By the early 1960s, 

the ability of bald eagle populations to 

replace themselves had decreased 

drastically, and bald eagle numbers 

plummeted. A partial survey conducted 

by the National Audubon Society in 

1963 documented just 487 active nests 

in the lower 48 contiguous States. 

Productivity was considered lower than 

that required to sustain the population. 

On the basis of this steep decline, the 

bald eagle population south of 40° North 

latitude was included on the first list of 

endangered species (32 FR 4001, March 

11, 1967), pursuant to the precursor law 

to the current Endangered Species Act. 

DDT use was banned in the United 

States in 1972. Increases in the eagle 

population were gradual due to the 

persistence of DDT in the environment, 

however, and the bald eagle was 

included on the ESA’s List of 

Threatened and Endangered Wildlife 

when the ESA was passed in 1973. In 

1978, the ESA listing was amended to 

classify the bald eagle as endangered in 

the lower 48 contiguous States except in 

five northern States, where it was listed 

as threatened (43 FR 6233, February 14, 

1978). 

With the protection afforded by the 

ESA and the decline in DDT 

contaminant levels in the environment 

and in the bald eagle’s food sources, the 

species experienced a dramatic 

comeback. In 1990, there were an 

estimated 3,035 occupied breeding areas 

in the lower 48 states. By 1994, the bald 

eagle population had increased 462% 

over the levels documented in 1974. 

The increase was sufficient to allow 

reclassification to threatened in the 

lower 48 States (60 FR 36000, July 12, 

1995). Bald eagle population growth and 

productivity exceed most of the goals 

established in the various ESA recovery 

plans. The Service proposed to remove 

the bald eagle from the List of 

Threatened and Endangered Wildlife on 

July 6, 1999 (64 FR 36454). We estimate 

the current number of breeding pairs in 

the 48 contiguous States to be over 

9,700. Bald eagles were never listed as 

threatened or endangered in Alaska, 

where we currently estimate bald eagles 

to number between 50,000 and 70,000 

birds, including approximately 15,000 

breeding pairs. 

The ESA provides broad substantive 

and procedural protections for listed 

species but at the same time allows 

significant flexibility to permit activities 

that affect listed species. In particular, 

the ESA provides that we may authorize 

the incidental take of listed wildlife in 

the course of otherwise lawful activities 

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

respectively). Nationwide, since 2002, 

the Service has issued an average of 52 

incidental take statements per year that 

covered anticipated take of bald eagles 

under the ESA’s section 7. During that 

same 5-year period, we issued about two 

(1.8) incidental take permits per year 

under the ESA’s section 10(a)(1)(B) for 

bald eagles. The requirements, 

including minimization, mitigation, or 

other conservation measures, of those 

ESA authorizations have been more 

than adequate to achieve the standard of 

‘‘preservation’’ for the bald and golden 

eagle that is required by the Eagle Act 

for the issuance of take permits. 

Therefore, we provided assurances with 

each section 7 incidental take statement 

and section 10 permit that we would 

‘‘not refer the incidental take of a bald 

eagle for prosecution under the 

Migratory Bird Threat Act of 1918, as 

amended (16 U.S.C. 703–712), or the 

Bald and Golden Eagle Protection Act of 

1940, as amended (16 U.S.C. 668–668d) 

if such take was in compliance with the 

terms and conditions of an incidental 

take statement issued to the action 

agency or applicant under the authority 

of section 7(b)(4) of the ESA or a permit 

issued under the authority of section 

10(a)(1)(B) of the ESA.’’

If the bald eagle is delisted, the 

permitting of incidental take under the 

ESA would no longer occur except 

possibly in the context of certain multispecies HCPs that were applicable to 

both listed and non-listed species. In 

that event, however, a mechanism 

would still be needed to address take 

that may be permitted pursuant to the 

Eagle Act. The Eagle Act provides that 

the Secretary of the Interior may 

authorize certain otherwise prohibited 

activities through promulgation of 

regulations. The Secretary is authorized 

to prescribe regulations permitting the 

‘‘taking, possession, and transportation 

of [bald or golden eagles] * * * for the 

scientific or exhibition purposes of 

public museums, scientific societies, 

and zoological parks, or for the religious 

purposes of Indian tribes, or * * * for 

the protection of wildlife or of 

agricultural or other interests in any 

particular locality,’’ provided such 


jlentini on PROD1PC65 with PROPOSALS2
Federal Register / Vol. 72, No. 107 / Tuesday, June 5, 2007 / Proposed Rules 31143 

1Panjabi, A. O., E. H. Dunn, P. J. Blancher, W. 

C. Hunter, B. Altman, J. Bart, C. J. Beardmore, H. 

Berlanga, G. S. Butcher, S. K. Davis, D. W. 

Demarest, R. Dettmers, W. Easton, H. Gomez de 

Silva Garza, E. E. In ̃igo-Elias, D. N. Pashley, C. J. 

Ralph, T. D. Rich, K. V. Rosenberg, C. M. Rustay, 

J. M. Ruth, J. S. Wendt, and T. C. Will. 2005. The 

Partners in Flight handbook on species assessment. 

Version 2005. Partners in Flight Technical Series 

No. 3. Rocky Mountain Bird Observatory Web site: 

http://www.rmbo.org/pubs/downloads/ 

Handbook2005.pdf. 

permits are ‘‘compatible with the 

preservation of the bald eagle or the 

golden eagle’’ (16 U.S.C. 668a). In 

accordance with this authority, the 

Secretary has previously promulgated 

Eagle Act permit regulations for 

scientific and exhibition purposes (50 

CFR 22.21), for Indian religious 

purposes (50 CFR 22.22), to take 

depredating eagles (50 CFR 22.23), to 

possess golden eagles for falconry (50 

CFR 22.24), and for the take of golden 

eagle nests that interfere with resource 

development or recovery operations (50 

CFR 22.25). 

Until now, we have not promulgated 

permit regulations to authorize eagle 

take ‘‘for the protection of * * * other 

interests in any particular locality.’’

This statutory language accommodates a 

broad spectrum of public and private 

interests (such as utility infrastructure 

development and maintenance, road 

construction, operation of airports, 

commercial or residential construction, 

resource recovery, recreational use, etc.) 

that might ‘‘take’’ eagles as defined 

under the Eagle Act. 

Description of the Proposed Rulemaking 

Take Permit Regulations Under 

Proposed 50 CFR 22.26 

We are proposing a new permit 

regulation under the authority of the 

Eagle Act for the limited take of bald 

and golden eagles ‘‘for the protection of 

* * * other interests in any particular 

locality’’ where such permits are 

consistent with the preservation of the 

bald and golden eagle, and the take is 

associated with, and not the purpose of 

an otherwise lawful activity, and such 

take cannot practicably be avoided. 

‘‘Practicable’’ in this context means 

capable of being done after taking into 

consideration cost, existing technology, 

and logistics in light of overall project 

purposes. 

We anticipate that generally such take 

permits would authorize activities 

which could cause an eagle to be 

disturbed by human activities in 

proximity to eagle nests, important 

foraging sites, and communal roosts; 

however, in some limited cases, where 

other forms of take besides disturbance 

are unavoidable, we anticipate that a 

permit may be issued under this section 

for such other form of take. 

‘‘Unavoidable’’ in this context means 

the activity is necessary for the public 

welfare, and all practicable, industryaccepted measures to minimize the take 

are in effect. In the case of airports, for 

example, the permit could cover take 

that might occur even when the airport 

is meeting the obligations of its Wildlife 

Hazard Management Plan (e.g., hazing 

wildlife and discouraging nesting and 

roosting by designing infrastructure to 

be as inhospitable as possible). 

We do not anticipate that permits 

issued under these proposed regulations 

will significantly affect eagle 

populations. Bald eagle populations are 

currently growing at a rate that we 

expect will continue to outpace any 

population effects (primarily through 

decreased productivity) caused by 

disturbance. Furthermore, all permittees 

will be required, as part of their permit 

conditions, to carry out conservation 

measures to mitigate impacts to eagles. 

The statutory requirement that the 

authorized activities be compatible with 

the preservation of bald and golden 

eagles ensures the continued protection 

of the species while allowing some 

impacts to individual eagles. For 

purposes of the regulations we are 

proposing here, we consider take to be 

compatible with the preservation of the 

bald and golden eagle if it will not result 

in a decline, either at the national or 

regional level, that could necessitate 

(among other factors) a designation of an 

avian species by Partners in Flight (PIF) 

to their Continental Watch List 1 (the 

rate of decline that serves as a threshold 

for that list is more moderate than what 

would lead to ESA listing (or relisting)). 

The Service already uses that threshold 

rate of decline to manage migratory 

birds; it serves as a primary element in 

our determination of whether a 

migratory bird species is of conservation 

concern. We do not intend to rely on 

any PIF determination of changed 

status, and we would not tie any future 

action on our part with any action by 

PIF. Rather, we believe it would be 

sensible and consistent to apply a 

criterion we already use for migratory 

bird management, as the threshold level 

of decline that would not be compatible 

with the preservation of the bald and 

golden eagle. 

We propose to use modeling in 

evaluating the level of take which we 

can permit compatible with this 

statutory threshold, and taking into 

consideration the cumulative effects of 

all permitted take, including other forms 

of lethal take permitted under this 

section, against the backdrop of other 

causes of mortality and nest loss. Due to 

the inherent limits of monitoring to 

detect precise fluctuations in bald and 

golden eagle numbers, coupled with the 

uncertainty as to whether individual 

actions being permitted will in fact 

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

correlate each individual permit 

decision with a specific population 

impact. However, we intend to use the 

best available data, including data from 

post-delisting monitoring by States, the 

Breeding Bird Survey, and fall and 

winter migration counts to assess the 

status of eagle populations and adjust 

permitting criteria on an ongoing basis 

as appropriate. However, consistent 

with the preservation mandate of the 

Eagle Act, we do not anticipate that the 

cumulative impacts of the activities 

permitted by these regulations will 

cause declines in bald and golden eagle 

populations. 

As part of the forthcoming release for 

public comment of a draft 

environmental assessment under the 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) (NEPA), we intend 

to determine the most meaningful 

population scale for measuring 

population impacts using available data 

(including average natal dispersal 

distances) and to delineate regional 

populations that are relatively distinct 

for management purposes. Our 

preliminary analysis to date indicates 

there may be utility in classifying bald 

eagle populations into nine regional 

populations (plus some highly isolated 

sites) for purposes of assessing impacts 

to bald eagles under these regulations. 

We intend to perform a similar analysis 

for golden eagles, to determine the 

geographic delineations most applicable 

for management purposes. 

A wide variety of activities, including 

various types of development, resource 

extraction, and recreational activities 

near sensitive areas such as nesting, 

feeding, and roosting sites, can disrupt 

or interfere with the behavioral patterns 

of bald eagles. The Service has 

developed National Bald Eagle 

Management Guidelines (Guidelines) as 

a tool for landowners, project 

proponents, and the general public 

engaged in activities in the vicinity of 

bald eagles (see our notice of availability 

of the Guidelines published separately 

in today’s Federal Register. The 

Guidelines are also available at http:// 

www.fws.gov/ 

migratorybirds.baldeagle.htm). The 

Guidelines address potential negative 

effects of human activities on bald 

eagles, based on observed bald eagle 

behavior, and provide guidance on what 

types of activities are likely to cause 

bald eagle disturbance at varying 

distances to nests, communal roosts, 


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and foraging areas and how to avoid 

such disturbance. 

By adhering to the Guidelines, 

landowners and project proponents will 

be able to avoid bald eagle disturbance 

under the Eagle Act most of the time. 

We anticipate only rarely issuing 

permits for take associated with 

activities that adhere to the Guidelines 

because the great majority of such 

activities will not take bald eagles. If 

avoiding disturbance is not practicable, 

the project proponent may apply for a 

take permit. (A permit is not required to 

conduct any particular activity, but is 

necessary to avoid potential liability for 

take caused by the activity.) 

Disturbance may also result from 

human activity that occurs after the 

initial activities (e.g., residential 

occupancy or the use of commercial 

buildings, roads, piers, and boatlaunching ramps). In general, however, 

permits would not be issued for routine 

activities such as hiking, driving, 

normal residential activities, 

maintenance of existing facilities, where 

take could occur but is unlikely, and 

would be unreasonably difficult to 

predict and/or avoid. If unusual 

circumstances exist, however, where the 

risk of disturbance may be higher than 

normal, we will consider issuing a 

permit to authorize the potential 

impacts of such activities. New uses or 

uses of significantly greater scope or 

intensity may raise the likelihood that 

eagles will be disturbed, and as such 

could require authorization for take 

under these regulations. When 

evaluating the take that may result from 

an activity for which a permit is sought 

(e.g., residential development), we 

would consider the effects of the 

preliminary activity (construction) as 

well as the effects of the foreseeable 

ongoing future uses (e.g., activities 

associated with human habitation). 

The impacts and threshold distances 

that we would consider will not be 

limited to the footprint of the initial 

activity if it is reasonably foreseeable 

that the activity will lead to adverse 

secondary prohibited impacts to eagles. 

For example, when evaluating the 

effects of expanding a campground, in 

addition to considering the distance of 

the expansion from important eagle-use 

areas, we would consider the effects of 

increased pedestrian and motor traffic to 

and from the expanded campground. In 

many cases, the potential for take could 

be greater as a result of the activities 

that follow the initial project. For 

example, the installation of a boat ramp 

500 feet from an important eagle 

foraging area nest may not disturb eagles 

during the construction phase, but the 

ensuing high levels of boat traffic 

through the area during peak feeding 

times is likely to cause disturbance. 

Trail construction 400 feet from a nest 

is generally unlikely to take eagles, but 

if the trail will be open to off-road 

vehicle use during the nesting season, 

we would need to consider the impacts 

of the vehicular activity as part of the 

impacts of the trail construction. 

As part of this rulemaking, the Service 

is also seeking public comment on 

differences between bald and golden 

eagle tolerance to human activity. Most 

of the scientific literature and anecdotal 

evidence pertaining to disturbance is in 

reference to bald rather than golden 

eagles; however various raptor biologists 

have suggested that golden eagles may 

be more sensitive to some types of 

human activity than bald eagles. The 

National Bald Eagle Management 

Guidelines were developed for bald 

eagles and some of the 

recommendations contained in that 

document may not be appropriate for 

avoiding golden eagle disturbance. We 

therefore strongly encourage the public 

to provide information and data on 

golden eagle disturbance, and 

scientifically-based recommendations 

for buffers sizes, timing restrictions, and 

other measures to avoid such 

disturbance. If warranted, we will 

develop separate criteria for evaluation 

of golden eagle take permits. In any 

event, all take permits for golden eagles 

still must be based on a determination 

that it is consistent with the 

preservation of the species. 

We acknowledge there is considerable 

uncertainty with respect to how both 

species of eagles react to human 

activity. To decrease uncertainty and 

ensure that the disturbance component 

of the proposed eagle take permit 

regulation is neither unnecessarily 

burdensome to the public nor 

incompatible with the preservation of 

eagles, we would require permittees to 

provide basic post-activity monitoring 

by determining whether the nest site, 

communal roost, or important foraging 

area continues to be used by eagles for 

the 3 years following completion of the 

activity for which the permit was 

issued. Where an activity is covered by 

a management plan that establishes 

monitoring protocols (e.g., an airport 

Wildlife Habitat Management Plan), the 

permit may specify that monitoring 

shall be conducted according to the preexisting management plan. Reporting 

data, including supplemental data 

collected by the Service from some 

permittees’ project areas, would be 

employed in a formal adaptive resourcemanagement context to assess whether 

or not the estimated probability of 

disturbance adequately describes the 

relationship between the distance of the 

activity and the occurrence of 

disturbance for both species of eagle. If 

not, the relationship would be reevaluated using data collected from 

permittees, as well as other sources, and 

this regulation and the associated 

National Management Guidelines will 

be revised appropriately. 

Permit application process and 

evaluation criteria. Permits would be 

available to Federal, State, municipal, or 

Tribal government; corporations and 

businesses; associations; and private 

individuals. Except for persons who 

were previously authorized to 

incidentally take eagles under ESA’s 

section 7 and 10 (where the eagle was 

the only covered listed species), we 

propose to use the following 

information to make permit 

determinations. The permit application 

would have to include a detailed 

description of the activity that will 

likely cause the disturbance or other 

take of eagles; maps and photographs 

(preferably digital) that depict the 

locations of the proposed activity and 

the eagle nests, foraging areas, and 

concentration sites where eagles are 

likely to be affected by the proposed 

activity (including the latitude and 

longitude of the activity area and 

important eagle-use area(s) and the 

distance(s) between those areas); the 

number of eagles that are likely to be 

taken and the likely form of that take 

(e.g., disturbance or other take); whether 

or not the important eagle-use area is 

visible from the activity area, or if 

screening vegetation or topography 

blocks the view; the nature, extent, 

duration, and distance from the eagleuse area of existing activities similar to 

that being proposed; the date the 

activity will start and is projected to 

end; an explanation of how issuance of 

the permit will protect other interests in 

a particular locality; an explanation of 

why avoiding the take is not practicable; 

a description of the measures proposed 

to minimize and mitigate any resulting 

impacts on eagles; a certification that 

the proposed activity is in compliance 

with applicable local, State, and Federal 

laws and regulations; and other 

information we may request specific to 

that particular proposal, consistent with 

the information collection requirements 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.). 

The Service may provide technical 

assistance in development of permit 

applications. In many cases, the Service 

may be able to recommend measures to 

reduce the likelihood of take, obviating 

the need for a permit. The technical 

assistance we provide from the field 

will reduce the number of applications 


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to our permit offices for activities that 

(1) are unlikely to take eagles, or (2) can 

practicably be modified to avoid the 

take. The Service may elect to conduct 

an on-site assessment to determine 

whether the proposed activity is likely 

to take bald eagles and whether 

reasonable modifications to the project 

will alleviate the probability of take. In 

addition, State natural resources 

agencies may also be able to provide 

information pertaining to the number 

and location of eagle nests and other 

important eagle-use areas within the 

area potentially affected by the activity. 

To determine whether to issue a 

permit, we would consider a number of 

factors including (1) whether practicable 

measures can be taken to reduce the 

probability of take, and (2) whether the 

resulting level of take is compatible 

with the preservation of bald or golden 

eagles. Factors we would consider 

include the magnitude of the impacts of 

the activity; individual eagles’ known 

prior exposure to, and history with, the 

activity; whether alternative suitable 

eagle nesting, roosting, and/or feeding 

habitat is available to the eagles affected 

by the activity; visibility of the activity 

from the eagle’s nest, roost, or foraging 

perches; and practices proposed by the 

applicant to reduce potential 

disturbance of the activity on eagles. In 

cases where our evaluation of these 

additional factors and the best scientific 

information available leads to the 

conclusion that disturbance will likely 

occur, we would assess whether that 

disturbance is likely to lead to the loss 

of one of more eagles or the permanent 

loss of a nesting territory, communal 

roost site, or important foraging area. 

We would also consider the potential 

cumulative effects of other similar 

authorizations. 

For applications for activities that are 

likely to result in eagle mortalities, we 

would assess whether the take is 

unavoidable even where the project 

proponent is using best management 

practices (BMPs) to avoid the take. 

Permits would authorize anticipated 

lethal take only where BMPs are being 

fully implemented. 

Although we cannot precisely predict 

the population impact of each take 

authorization when evaluating 

individual permit applications, we will 

periodically assess overall population 

trends along with annual report data 

from permitees and other information to 

assess how likely future activities are to 

result in loss of one of more eagles, a 

decrease in productivity of bald or 

golden eagles, and/or the permanent 

loss of a nest site, communal roost site, 

or important foraging area; and how 

such outcomes will likely affect 

population trends, taking into 

consideration the cumulative effects of 

other activities that take eagles and 

eagle mortalities due to other factors. 

We do not expect population declines as 

the result of the authorizations granted 

through these proposed regulations. 

However, it is also possible external 

factors could arise that negatively affect 

eagle populations. Whatever the cause, 

if data suggest population declines are 

approaching a level where additional 

take would be incompatible with the 

preservation of the eagle (as interpreted 

above for purposed of this rulemaking), 

we would refrain from issuing permits 

until such time that the take would be 

compatible with the preservation of the 

bald or golden eagle. However, based on 

preliminary analysis, we believe the 

demand for permits under these 

regulations, and the effects of issuing 

those permits, including mitigation 

measures, would not be significant 

enough to cause a decline in eagle 

populations from current levels. 

Certain general conditions would be 

included in eagle take permits. The 

permittee must comply with any 

avoidance, mitigation, and/or 

conservation measures required by the 

permit. If the permit expires or is 

suspended or revoked before the 

required measures are completed, the 

permittee remains obligated to carry out 

those measures necessary to mitigate for 

take that has occurred up to that point. 

Permittees must allow Service 

personnel access to the areas where take 

is anticipated, within reasonable hours 

and with reasonable notice from the 

Service, for purposes of monitoring 

eagles at the site(s). Although we do not 

anticipate the necessity for ongoing 

monitoring by the Service at the 

majority of the areas where take would 

be permitted, we would use the data 

collected from limited site visits to 

reevaluate, as appropriate, the 

recommendations we provide in the 

Guidelines as well as through case-bycase technical assistance to ensure that 

eagles are adequately protected without 

unnecessarily hindering human activity. 

If a permit is revoked or expires, the 

permittee must submit a report of 

activities conducted under the permit to 

the Director within 60 days of such 

revocation or expiration. The permit 

provides take authorization only for the 

activities set forth in the permit 

conditions. If the permittee 

subsequently contemplates different or 

additional activities, he or she should 

contact the Service to determine if a 

permit amendment is required to retain 

the level of take authority desired. 

We intend to develop implementation 

guidance to address procedural details 

of the permitting process, similar in role 

and format to the Service’s Section 7 

and HCP Handbooks. The guidance will 

cover time frames for permit issuance, 

identification of project impacts, 

appropriate mitigation measures, 

monitoring, and other specifics of the 

permit process, in order to ensure 

consistency in implementation 

throughout the Service. We encourage 

the public to provide input on these 

types of issues as part of this 

rulemaking. We will use this public 

input to craft draft implementation 

guidance, which will be subject to a 

public notice and comment process 

before being finalized. 

Eagle Act Authorizations for Entities 

Operating Under ESA Authorizations 

and Exemptions 

Take prohibited under the ESA is, in 

many instances, also prohibited under 

the Eagle Act. Both statutes prohibit 

killing, wounding, pursuing, shooting, 

capturing, and collecting the protected 

species. The ESA additionally prohibits 

anyone from harming or harassing listed 

species, while the Eagle Act makes it 

illegal to molest or disturb bald or 

golden eagles. The regulatory 

definitions of ‘‘harm,’’ ‘‘harass,’’ and 

‘‘disturb,’’ differ somewhat from each 

other; however they do overlap in 

several ways, with the result that a 

majority of actions considered likely to 

incidentally take (harm or harass) eagles 

under the ESA will also incidentally 

take (disturb) eagles under the Eagle 

Act. 

Under the ESA, we authorized take of 

bald eagles using the permit provisions 

of section 10 for non-Federal entities or 

the consultation provisions of section 7 

for Federal agencies. The regulations 

here proposed would extend Eagle Act 

authorizations to holders of existing 

ESA authorizations as seamlessly as 

possible under the laws. The 

mechanism through which these 

regulations will provide this 

authorization is two-fold. First, it 

provides for expedited processing of 

Eagle Act permits to entities previously 

authorized to take eagles under section 

7 incidental take statements and section 

10 incidental take permits where the 

bald eagle was the only listed species 

covered in the Habitat Conservation 

Plan. Second, we are proposing 

regulatory provisions to provide take 

authorization under the Eagle Act to 

ESA section 10 permittees where the 

bald eagle was one of several listed 

species, including future permittees 

(where the bald or golden eagle is 

included in the HCP as a covered 

nonlisted species) as long as the 

permittees remain in full compliance 


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with the terms and conditions of their 

ESA permits. 

Section 10(a)(1)(B) of the ESA 

authorizes incidental take permits for 

activities included in a Habitat 

Conservation Plan (HCP). A handful of 

permits authorize incidental take of 

golden eagles for ESA purposes (should 

the golden eagle be listed in the future), 

where they are included in HCPs as 

covered non-listed species. All these 

permits were issued with a statement of 

enforcement discretion from the Service 

that provided assurances that the 

Service would not refer any take of bald 

or golden eagles for prosecution under 

the Eagle Act, as long as the take was 

in full compliance with the terms and 

conditions of the permit and HCP, 

including that the permittee carried out 

all conservation measures required by 

the permit. Thus, none of these 

incidental take permits or incidental 

take statements provided explicit 

authorization for take under the Eagle 

Act. While the bald eagle was protected 

under the ESA, these assurances also 

conveyed the Federal Government’s 

commitment to make no additional 

conservation demands of permittees 

who were fully implementing the 

conservation measures within their 

HCPs. 

If the bald eagle is delisted, all of 

these ESA permits would continue to 

provide viable authorizations under the 

ESA, except where the bald eagle was 

the only ESA-listed species covered by 

the permit (addressed below). For 

permits where the bald eagle was one of 

multiple ESA-listed species, the permit 

remains in effect and would continue to 

provide the same authorizations for bald 

eagles based on the original conditions; 

the only difference being that the bald 

eagle would be converted from a 

‘‘covered listed species’’ to a ‘‘covered 

non-listed species’’ under the ESA 

permit after delisting. 

The Eagle Act provides that bald 

eagles may not be taken unless a permit 

is first procured from the Secretary of 

the Interior. Because a permit from the 

Secretary of the Interior was already 

obtained under ESA section 10(a)(1)(B), 

the provisions we are proposing would 

ensure a second permit (under the Eagle 

Act) is not required. We propose to 

amend Eagle Act regulations at 50 CFR 

22.11 to extend Eagle Act authorizations 

comparable to the authorizations 

granted under the ESA to entities who 

continue to operate in full compliance 

with the terms and conditions of 

permits issued under ESA section 10. 

Failure to abide by the section 10 permit 

requirements would, however, void this 

Eagle Act regulatory permit 

authorization. 

The new provision would also apply 

to take associated with any future ESA 

section 10 Habitat Conservation Plans 

that specifically include eagles as 

covered, non-listed species. An 

applicant for an ESA section 10(a)(1)(B) 

permit for incidental take of ESA-listed 

species may obtain ESA ‘‘no surprises’’

assurances for take of bald or golden 

eagles by including them as a covered, 

non-listed species in the ESA section 

10(a)(1)(B) permit. To include a species 

under the ESA permit, the issuance 

criteria for an ESA section 10(a)(1)(B) 

permit must be satisfied. The Service 

recognizes that the measures required to 

cover the bald or golden eagle under an 

ESA incidental take permit (which is 

crafted to safeguard federally listed 

species, including those that may be 

listed in the future) are sufficient to 

protect the species relative to the Eagle 

Act standard of preservation of the 

species if it is not listed under the ESA. 

Thus, take authorized under the ESA 

and its conservation standard is, we 

believe, inherently ‘‘compatible with the 

preservation of the bald and golden 

eagle’’ that is required by the Eagle Act. 

Therefore, the new provisions at § 22.11 

would extend Eagle Act permit coverage 

for the take of eagles included as a nonlisted species under future ESA 

10(a)(1)(B) permits, as long as the 

permittee fully complies with the terms 

and conditions of the permit. 

For existing ESA section 10(a)(1)(B) 

incidental take permits where the bald 

eagle was the only ESA-listed species, 

the ESA permit will be null and void if 

the bald eagle is delisted. However, the 

requirements, including mitigation or 

other conservation measures, of existing 

ESA section 10 authorizations would 

continue to be adequate to achieve the 

preservation of the species that is 

required by the Eagle Act. Therefore, as 

long as the recipients of such permits 

continue to fully comply with the terms 

of those permits, the Service would 

continue to honor its statement that we 

will not refer take authorized under the 

permit for prosecution under the MBTA 

or Eagle Act until regulations are in 

place to grant, and the permittee has 

had a reasonable opportunity to apply 

for, comparable take authorizations 

under the Eagle Act. Because the Eagle 

Act requires that an actual permit be 

procured before a bald eagle may be 

taken, the proposed new provisions at 

§ 22.11 would not apply to ESA 

incidental take permits where the bald 

eagle was the only ESA-listed covered 

species, since the ESA permit will no 

longer be effective if the bald eagle is 

delisted. We intend to use an expedited 

process to issue Eagle Act permits under 

proposed § 22.26 to entities that held 

ESA incidental take permits for bald 

eagles where the bald eagle was the only 

covered listed species, to cover take of 

eagles that has not yet occurred. The 

sole evaluation criterion we believe is 

necessary for these expedited permits 

would be whether the entity is in full 

compliance with the terms and 

conditions of a previously issued ESA 

section 7 incidental take statement or 

ESA section 10 incidental take permit 

with respect to the take of eagles. 

Applications for these permits would 

be given priority in processing by the 

Service, and as long as the permittee is 

in full compliance with the terms and 

conditions of his ESA permit, the 

Service would expeditiously issue an 

Eagle Act permit with identical terms 

and conditions. We would continue to 

honor these ESA authorizations as 

effectively valid authorizations under 

the MBTA and Eagle Act during an 

interim period that will afford these 

existing permittees a reasonable 

opportunity to see and obtain an Eagle 

Act permit, as long as the permittee 

remains in full compliance with the 

terms and conditions of the prior ESA 

authorization. 

We propose to use the same expedited 

permit issuance process to provide 

Eagle Act authorization for take that was 

previously covered under the ESA’s 

section 7. Section 7 requires Federal 

agencies, in consultation with the 

Service, to ensure that the activities they 

carry out, fund, or authorize do not 

jeopardize the continued existence of 

listed species, or result in the 

destruction or adverse modification of 

critical habitat. When a Federal agency 

is not able to avoid adverse effects to 

listed species or critical habitat, the 

Service must issue a biological opinion 

as to whether the effects constitute 

jeopardy to the species or adverse 

modification of critical habitat. If the 

Service concludes that the agency action 

will not cause jeopardy or adverse 

modification, or the agency adopts 

reasonable and prudent alternatives to 

avoid jeopardy or adverse modification, 

then the Service provides an incidental 

take statement with the biological 

opinion. The incidental take statement 

specifies the anticipated level of take 

and exempts that take from the 

prohibitions of section 9 of the ESA. 

Section 7 incidental take statements that 

cover take of bald eagles, while the 

species remains listed under the ESA, 

include a statement of enforcement 

discretion similar to the language found 

in section 10 permits, stating that the 

Service would not refer for prosecution 

under the Eagle Act any take of bald 

eagles that resulted from activities 


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conducted in accordance with the terms 

and conditions of the incidental take 

statement. We propose to issue 

expedited take permits to grant formal 

Eagle Act authorization for take that has 

not yet occurred but was previously 

covered under ESA section 7 incidental 

take statements issued under the 

authority of section 7(b)(4) of the ESA, 

as long as the recipients of those 

authorizations continue to fully comply 

with the terms and conditions of the 

incidental take statement. We would 

continue to exercise enforcement 

discretion during the period before 

these regulations are finalized. 

Some take of bald eagles has been 

authorized under the ESA’s section 

10(a)(1)(A) permits for Scientific 

Purposes and permits for Enhancement 

of Propagation or Survival (i.e., 

Recovery permits). Permits for Scientific 

Purposes authorize take of listed species 

resulting from scientific research and 

monitoring activities. Permits for 

Enhancement of Propagation and 

Survival authorize take of listed species 

resulting from establishment and 

operation of captive or otherwise 

controlled propagation programs as well 

as activities included in a Safe Harbor 

Agreement. Most such section 

10(a)(1)(A) permits also contained a 

specific reference that they were 

authorizing take under the Eagle Act. 

However, a few such permits referenced 

authority only under the ESA, and 

would no longer be in effect if the bald 

eagle is delisted. For those 10(a)(1)(A) 

permits that did not specifically 

reference authority to take under the 

Eagle Act, and where the take has not 

yet occurred, the permittee will need to 

obtain an Eagle Act authorization by 

applying for a permit under 50 CFR 

22.21 (Eagle Act Scientific and 

Exhibition Permits). In the meantime, 

we intend to use enforcement discretion 

as long as the permittee continues to 

operate within the terms and conditions 

of the ESA permit. 

Some activities determined to cause a 

take under the ESA may be determined 

not to cause a take under the Eagle Act. 

If an activity determined to cause take 

under the ESA is also determined to 

cause take under Eagle Act, some of the 

requirements for take authorization 

under the ESA may be found by the 

Service as not necessary for take 

authorization under the Eagle Act. 

Therefore, persons previously granted 

take authority under the ESA for the 

take of bald and golden eagles who 

could be granted comparable take 

authority under the Eagle Act through 

these proposed regulations may request 

a reevaluation from the Service to 

determine whether they could benefit 

from reevaluation of permit conditions. 

Eagle Nest Take Under Proposed 50 

CFR 22.27 

Some eagles nest on or near electrical 

transmission towers, communication 

towers, airport runways, or other 

locations where they create hazards to 

themselves or humans. Regulations 

under this section, § 22.27, would 

authorize removal and/or relocation of 

eagle nests in what we expect to be the 

rare cases where genuine safety 

concerns necessitate the take (e.g., 

where a nest tree appears likely to 

topple onto a residence, at airports to 

avoid collisions between eagles and 

aircraft, or for a nest located on an 

electrical transmission tower that 

interferes with necessary maintenance 

of the utility and jeopardizes the eagles’

safety). Where practicable, nests should 

be relocated to a suitable location 

within the same territory from which 

they were removed to provide a viable 

nesting site for breeding purposes of 

eagles within that territory unless such 

relocation would create a similar threat 

to safety. Permits may also be issued to 

remove nests when it is determined by 

the Service that the nests cannot be 

relocated. 

These permits would be issued only 

in cases of a determination that the 

requested action is necessary to address 

actual safety concerns. Additionally, 

some § 22.26 permits that authorize 

disturbance could also result in the 

permanent loss of a nest site, even 

without actually ‘‘taking’’ the nest. 

Those take permits that are most likely 

to result in the permanent loss of a nest 

site would therefore also need to be 

considered when assessing the impact 

of permits to move or remove nests in 

order for the Service to determine that 

the permits issued remain consistent 

with the statutory requirement for 

preservation of the species. We would 

not issue take permits under § 22.26 and 

§ 22.27 of this part if and when we were 

to determine that this statutory standard 

was not being met. As part of adaptive 

management, we will also take into 

account eagle occupation of new 

territories. If eagles continue to occupy 

new nest sites, the number of eagle nests 

that we could permit to be permanently 

lost may increase. We will use the best 

available scientific data regarding bald 

and golden eagle use of new nest sites, 

as well as abandoned and lost nest sites, 

to adjust the threshold accordingly. 

New and Modified Definitions Under 50 

CFR 22.3 

We propose to amend the regulatory 

definition of ‘‘take,’’ as applied to bald 

eagle nests, to ensure consistency with 

the statutory prohibition of unpermitted 

eagle nest destruction. For this reason, 

we propose to add the term ‘‘destroy’’ to 

the regulatory definition of ‘‘take.’’ We 

propose to define ‘‘eagle nest’’ as a 

‘‘readily identifiable structure built, 

maintained, or used by bald or golden 

eagles for breeding purposes.’’ This 

definition is based on, and would 

replace, the existing ‘‘golden eagle nest’’

definition, in order to apply with 

respect to both species. We therefore 

propose to remove the existing 

definition of ‘‘golden eagle nest’’ from 

the list of definitions. We also propose 

to introduce a new term in the permit 

regulations under 50 CFR 22.26: 

‘‘important eagle-use area.’’ This term 

refers to nests, biologically important 

foraging areas, and communal roosts, 

where eagles are potentially likely to be 

taken as the result of interference with 

breeding, feeding, or sheltering 

behaviors. 

We propose the following definition 

for ‘‘important eagle-use area’’: ‘‘an 

eagle nest, foraging area, or communal 

roost site that eagles rely on for 

sheltering and feeding, and the 

landscape features surrounding such 

nest, foraging area, or roost site that are 

essential for the continued viability of 

the site for breeding, feeding, or 

sheltering eagles.’’ This term refers to 

the particular areas, within a broader 

area where human activity occurs, 

where eagles are more likely to be taken 

(i.e., disturbed) by the activity because 

of the higher probability of interference 

with breeding, feeding, or sheltering 

behaviors at those areas. 

Revisions to General Permit Conditions 

at 50 CFR Part 13 

As part of establishing the new permit 

authorizations under 50 CFR 22.26 and 

22.27, we propose to amend 50 CFR 

13.12 to add the proposed permit types 

to be issued under 50 CFR 22.26 and 

22.27. We also propose to amend 50 

CFR 13.11(d), the nonstandard fee 

schedule, to establish application 

processing fees (user fees) for the 

permits. The general statutory authority 

to charge fees for processing 

applications for permits and certificates 

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

that services provided by Federal 

agencies are to be ‘‘self-sustaining to the 

extent possible.’’ Federal user fee 

policy, as stated in Office of 

Management and Budget (OMB) 

Circular No. A–25, requires Federal 

agencies to recoup the costs of ‘‘special 

services’’ that provide benefits to 

identifiable recipients. Permits are 

special services, authorizing identifiable 

recipients to engage in activities not 


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otherwise authorized for the general 

public. 

For the § 22.26 take permit, we 

propose a $500 permit application fee 

and a $150 permit amendment fee 

except that no application fee would be 

charged persons who have previously 

received an ESA authorization for the 

same take. For the § 22.27 nest take 

permit, we propose a $300 permit 

application fee and a $150 permit 

amendment fee. While higher than 

many other Service permit application 

processing fees, these proposed fees are 

comparable to those assessed for other 

migratory bird permits and reflect the 

relative level of review necessary to 

process and evaluate an application for 

a permit to take eagles or to remove 

eagle nests under the authorities of the 

Eagle Act. The statutory authority to 

charge fees for permits and certificates 

is found in 31 U.S.C. 483(a), which 

provides that a Federal agency may 

charge fees for services including 

permits and certificates to make these 

services ‘‘self-sustaining to the extent 

possible.’’

However, the proposed permit 

application process would be 

significantly less burdensome for the 

applicant than the current permit 

process under the ESA, since an HCP is 

not required. Preparing an HCP can be 

time-consuming and is usually 

delegated to a professional consultant. 

Plans often cover large geographic 

areas—some larger than a million 

acres—and set forth terms and 

mitigation measures designed to protect 

species for up to 100 years. In contrast, 

the information required to apply for an 

Eagle Act permit does not require the 

habitat analysis and is less extensive 

and easier to compile (see (b)(1)(i) of the 

proposed rule). 

We estimate it would cost the Service 

approximately $2,400 to process most 

§ 22.26 take applications, and $1,200 to 

process § 22.27 permits for emergency 

nest take. Service biologists at GS–11 to 

13 grade levels on the Office of 

Personnel Management General Pay 

Schedule, with support of GS–9 staff, 

would be responsible for preapplication technical assistance; 

reviewing and determining the 

adequacy of the information provided 

by an applicant; conducting any internal 

research necessary to verify information 

in the application or evaluate the 

biological impact of the proposed 

activity; assessing the biological impact 

of the proposed activity on the bald or 

golden eagle; evaluating whether the 

proposed activity meets the issuance 

criteria; preparing or reviewing NEPA 

documentation; and preparing either a 

permit or a denial letter for the 

applicant. To evaluate the impact of the 

proposed activity, Service biologists 

may also need to visit the location to 

examine site-specific conditions. 

Altogether, we estimate that it would 

take Service employees approximately 

80 hours to process a § 22.26 permit 

application and approximately 40 hours 

to process a § 22.27 application for 

emergency take of an eagle nest. 

Therefore, an application fee of $500 

would offset only about 20% of the cost 

to the Government of responding to a 

request for a § 22.26 take permit. The 

$300 application fee for the nest take 

permit would recoup about 25% of the 

cost of processing that permit 

application. 

Endangered Species Act Consideration 

Section 7(a)(2) of the Endangered 

Species Act (ESA) of 1973, as amended 

(16 U.S.C. 1531 et seq.), requires all 

Federal agencies to ‘‘insure that any 

action authorized, funded, or carried out 

* * * is not likely to jeopardize the 

continued existence of any endangered 

species or threatened species or result in 

the destruction or adverse modification 

of [critical] habitat.’’ This proposed rule 

is currently being reviewed pursuant to 

section 7 of the ESA. Section 7 

consultation, if needed, will be 

concluded before this rule is finalized. 

Required Determinations 

Energy Supply, Distribution or Use 

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

President issued Executive Order 13211 

addressing regulations that affect energy 

supply, distribution, and use. E.O. 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This rule is 

not expected to significantly affect 

energy supplies, distribution, and use. 

Therefore, this action is not a significant 

energy action, and no Statement of 

Energy Effects is required. 

Regulatory Planning and Review (E.O. 

12866). In accordance with the criteria 

in Executive Order 12866, the Office of 

Management and Budget (OMB) has 

designated this rule as a significant 

regulatory action because it raises novel 

legal or policy issues. 

a. This proposed rule would not have 

an annual economic effect of $100 

million or adversely affect an economic 

sector, productivity, jobs, the 

environment, or other units of the 

government. A brief assessment to 

clarify the costs and benefits associated 

with this proposed rule follows. 

The Service is currently assembling 

data to estimate the number and impact 

of permits that would likely be issued 

under this proposed rule. We are 

requesting public comment on the 

economic effects of the rule to help us 

with this analysis. Specifically, we are 

requesting information on the following: 

(1) How much will it cost to assemble 

the necessary information to apply for a 

take permit? 

(2) How much will it cost to comply 

with (including monitoring and 

reporting) a take permit? 

(3) Will you be more likely to apply 

for an eagle take permit under the 

proposed regulations compared to under 

the ESA? 

(4) If you plan to apply for a permit, 

what type of activities do you plan to 

conduct that might require an eagle take 

permit, and where would the take likely 

occur? 

(5) If you have a previously issued 

ESA section 7 authorization or section 

10 permit and plan to apply for an 

expedited permit, how much will it cost 

to assemble the necessary information to 

apply for the permit? 

Proposed Change. This rule would 

provide for the authorization of 

activities with impacts to bald eagles 

and golden eagles under the Bald and 

Golden Eagle Protection Act (Eagle Act). 

As such, the public would have the 

opportunity to apply for permits to 

authorize the take of bald and golden 

eagles under the Eagle Act. Any 

authorizations for take in Alaska would 

be new. Most authorizations for take of 

golden eagle anywhere in the United 

States would be new. 

Baseline. Establishing the status quo 

is complicated because more than one 

rule pertaining to bald eagles is being 

promulgated within the next year. Most 

notably, it is anticipated that bald eagles 

may be delisted before this permitting 

rule is finalized. If the bald eagle is 

removed from the List of Threatened 

and Endangered Wildlife under the 

Endangered Species Act (ESA), 

management of the bald eagle would fall 

primarily under the Eagle Act. 

Currently, unlike under the ESA, there 

are no regulations under the Eagle Act 

that authorize associated take of eagles. 

Thus, there would be an unknown 

length of time during which no new 

eagle take permits would be authorized 

between any eagle delisting under ESA, 

a decision on which must be made by 

June 28, 2007, as the result of litigation, 

and the finalization of this permitting 

rule under the Eagle Act. Furthermore, 

only a portion of existing bald eagle 

permits and consultations would 

continue to be valid after the delisting 

of the bald eagle. The costs and benefits 

would result from (1) the authorization 

of take of bald and golden eagles 

throughout the United States under 

proposed § 22.26, (2) the number of 

permits for emergency take of eagle 


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nests throughout the United States 

under proposed § 22.27, and (3) the 

reauthorization of activities for which 

take was previously allowed under the 

ESA but would not be valid after the 

delisting of the bald eagle. This analysis 

does not assess the impacts of delisting 

the bald eagle. Under the ESA, the final 

determination to delist the bald eagle 

will be based solely on the best 

available scientific and commercial 

data. 

Costs Incurred. In general, the costs 

incurred due to the proposed rule 

would relate to the costs of assembling 

the necessary information for the permit 

application, permit fees, and the costs of 

monitoring and reporting requirements 

associated with the permit. As 

explained below, it is difficult to predict 

the number of applications the Service 

should anticipate under these proposed 

regulations. However, due to various 

factors (explained further below), we 

expect that demand for eagle take 

permits will increase, from about 54 

authorizations per year under the ESA 

to approximately 300 permits per year 

under the Eagle Act. Therefore, if we 

use the current number of 

authorizations issued under the ESA as 

a baseline, approximately 246 permit 

applications would be new and some of 

these entities would bear the higher 

permit application fee costs under the 

Eagle Act as compared to the current fee 

for an ESA incidental take permit (to 

capture a more equitable share of the 

costs to the Service that would 

otherwise be borne by taxpayers), 

although many applicants will be State, 

local, tribal, or Federal agencies, which 

are exempt from application processing 

fees for Service permits. Costs for other 

aspects of the permit application 

process will generally be lower than 

costs associated with the ESA section 10 

permit application process (e.g., less 

information needs to be compiled and 

provided to the Service as part of this 

proposed permit application versus the 

requirement to create a Habitat 

Conservation Plan (HCP) under the 

ESA). 

Persons conducting activities under 

the terms and conditions of previously 

issued ESA section 7 and section 10 

(where the bald eagle was the only 

listed species) authorizations would 

need new, expedited permits under the 

Eagle Act, but would not be charged a 

permit application fee, and so would 

incur minimal additional costs. 

We are proposing a $500 permit 

application processing fee for the 

§ 22.26 take permit and a $300 permit 

application processing fee for the 

emergency nest-take permit. Both 

permit types would require a $150 fee 

for permit amendments. We anticipate 

receiving about 300 § 22.26 take permit 

applications nationwide annually, and 

about 5 § 22.27 emergency nest take 

permits. (We anticipate that we will 

issue permits in nearly all these cases, 

because applicants will already have 

coordinated with the Service before 

applying for a permit, and many project 

proponents will have either adjusted 

their projects so as not to need a permit 

or concluded that a permit will not be 

issued for the take associated with the 

proposed project. The remaining 

potential applicants are those who are 

likely to need and qualify for a permit.) 

Approximately 10 permits may need 

amendment annually. We expect about 

two thirds of the applicants to be 

Federal, State, local, or tribal 

governments, none of which are 

required to pay a permit application or 

amendment fee. Therefore, we estimate 

that annual application fees and 

amendments would total approximately 

$51,050 (100 permits × $500 fee + 2 

permits × $300 fee + 3 amendments × 

$150 fee). There would be no fee for 

processing annual reports. These permit 

fees would be new costs related to this 

proposed rule. There may be additional 

costs associated with the permit 

process, which may include mitigation 

costs, and if the applicant engages a 

consultant or attorney, consultant and 

legal fees. However, the permit 

application process would be 

significantly less burdensome than the 

current permit process under the ESA, 

since an HCP is not required. Preparing 

an HCP can be time consuming and is 

usually delegated to a professional 

consultant. Plans often cover large 

geographic areas—some larger than a 

million acres—and set forth terms and 

mitigation measures designed to protect 

species for up to 100 years. In contrast, 

the information required to apply for an 

Eagle Act permit does not require the 

habitat analysis and is less extensive 

and easier to compile (see (b)(1)(i) of the 

proposed rule). Information such as 

latitude and longitude are publicly 

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

majority of people could submit this 

information to the Service without the 

need to hire a consultant, especially 

with the help of local and state 

government staff who are usually 

willing to provide assistance with 

location and distance information 

between project and eagle nest/use 

location. The Service will direct 

applicants to available, free or 

inexpensive tools and services for 

obtaining the necessary information. 

Larger project proponents may prefer to 

hire consultants. Consultant fees could 

range from $300 to many thousands of 

dollars, depending on the scale of the 

project, but presumably still would be 

cost-effective, as compared to avoiding 

the take, since the choice is the 

applicant’s to make. In many cases, for 

larger projects, consultants would need 

to be engaged to address a multitude of 

other factors in addition to impacts to 

eagles, so additional costs related to 

Eagle Act authorizations would be 

minimal. We seek input from the public 

regarding anticipated costs, and will 

adjust this analysis based on that input. 

We anticipate that there will be many 

instances where project proponents 

approach the Service, and based on 

preliminary coordination with us, adjust 

project plans to reduce the likelihood of 

take to the point where no permit is 

needed, and none is therefore issued. 

There will be some costs associated 

with this process. Although these costs 

are not the result of this permit 

regulation, but stem from the statutory 

prohibitions against taking eagles, we 

nevertheless, encourage the public to 

provide input to help us assess what 

these costs may be. 

Costs would also be incurred by 

current projects that are in process and 

are delayed and future projects that are 

not initiated due to the lack of new 

eagle permits after delisting. These costs 

would be attributed to the 

determination to delist the bald eagle. 

Therefore, this analysis does not 

quantify these costs. 

In addition to costs to the public, the 

Service would incur administrative 

costs due to this proposed rulemaking. 

We do not have a firm basis on which 

to confidently foretell how much 

demand there will be for permits under 

these proposed regulations. We 

cautiously estimate the number of eagle 

take permits would increase under the 

rule from an average of 54 

authorizations currently issued under 

the ESA to 300 Eagle Act permits, 

annually. We expect an increase 

because: (1) Many smaller projects will 

no longer be able to get under the 

umbrella of a Federal project when 

seeking authorization to take bald 

eagles; (2) after delisting, it will be more 

acceptable and less burdensome to get a 

permit to take eagles; (3) eagle 

populations are increasing; and (4) 

permits will be available for golden 

eagle take. The cost of issuing permits 

will decrease, but many authorizations 

similar to those we previously granted 

under section 7 of the ESA (where the 

consultation covered numerous species 

in addition to bald eagles) would now 

require the issuance of a permit in 

addition to a biological opinion. On 

average, we estimate it will cost the 


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Service approximately $2,400 to process 

the average permit application under 

§ 22.26 and $1,200 to process the 

average permit application under 

§ 22.27. Assuming approximately 300 

§ 22.26 permit applications and 5 

§ 22.27 emergency nest take permits 

annually, the annual new costs 

associated with issuance of permits to 

the Service would total approximately 

$721,000 (300 new § 22.26 permits × 

$2,400) + (5 § 22.27 nest take permits × 

$1,200). 

The Service will also incur the cost of 

providing technical assistance, even 

where no permit is issued. The 

workload associated with each such 

consultation would be lower on average 

than for cases where a permit is 

required, but we believe it would not be 

insubstantial. We estimate the average 

technical consultation will require 20 

hours of staff time, and we anticipate 

the number of such consultations (not 

resulting in permits) to be about 600 per 

year, resulting in $360,000 in increased 

costs to the Service from technical 

consultations. In our preliminary 

analysis, we estimate that new 

administrative costs for the Service to 

implement this rule will be about $1.1 

million per year. (This estimate includes 

only the costs to regional and field 

offices for actual implementation of the 

permit program, and does not include 

costs associated with the development 

and maintenance of the program (e.g., 

rulemaking, responding to Freedom of 

Information Act requests, budget 

formulation, etc), which will be borne 

by the Service’s Migratory Bird and 

Endangered Species program offices). 

Benefits Accrued. Under the proposed 

rule, benefits to the public would accrue 

from issuance of permits to take bald 

and golden eagles throughout the 

United States. In general, benefits would 

include increased value in land that can 

now be developed or harvested for 

timber, as well as the elimination of the 

risk and future costs associated with the 

potential unpermitted take of eagles that 

could occur from the development 

activities. Benefits would depend on the 

level of potential future growth 

associated with the authorized permit 

activity. 

Only minimal take of golden eagles 

(as covered non-listed species in HCPs) 

has been authorized under the ESA 

prior to proposing this rule. As a result, 

most take of golden eagles throughout 

the United States that would be 

authorized by the permits issued under 

these proposed regulations could result 

in new development and activities that 

could not have proceeded legally 

without this proposed rule. We expect 

economic benefits may accrue as a 

result of the implementation of this rule 

for oil and gas development operations, 

farming and ranching operations, 

mining companies, utilities, the 

transportation sector, and private land 

owners. 

Overall, if this proposal is adopted, 

we anticipate issuing approximately 300 

take permits per year, about 246 more 

authorizations per year than we have 

issued while the bald eagle has been 

listed as a threatened species under the 

ESA; and approximately 5 emergency 

nest-take permits. We anticipate that the 

amount of take that will be requested 

and authorized under this permit 

regulation will not significantly affect 

bald or golden eagle populations. We 

are conducting an environmental 

assessment (EA) of the effects of this 

rulemaking and will make a draft of the 

EA available to the public for review 

and comment before this rulemaking is 

finalized. 

b. This rule would not create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency. This rule deals solely 

with governance of bald and golden 

eagle take in the United States. No other 

Federal agency has any role in 

regulating bald and golden eagle take, 

although some other Federal agencies 

regulate activities impacting wildlife 

(including eagles) and these impacts 

may constitute take. 

c. This rule would not alter the 

budgetary effects of entitlements, grants, 

user fees, or loan programs or the rights 

or obligations of their recipients. No 

entitlements, grants, user fees, or loan 

programs are associated with the 

regulation of bald and golden eagle take. 

d. OMB has determined that this rule 

may raise novel legal or policy issues; 

therefore this rule has been reviewed by 

OMB. 

Regulatory Flexibility Act. Under the 

Regulatory Flexibility Act (as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever a Federal agency 

publishes a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

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

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies that the rule would not 

have a significant economic impact on 

a substantial number of small entities. 

Thus, for a regulatory flexibility analysis 

to be required, impacts must exceed a 

threshold for ‘‘significant impact’’ and a 

threshold for a ‘‘substantial number of 

small entities.’’ See 5 U.S.C. 605(b). 

SBREFA amended the Regulatory 

Flexibility Act to require Federal 

agencies to provide a statement of the 

factual basis for certifying that a rule 

would not have a significant economic 

impact on a substantial number of small 

entities. 

The proposed rule may benefit a 

variety of small businesses including 

real estate developers and brokers 

(NAIC 531); construction companies 

(NAIC 23); forestry and logging (NAIC 

113), farming (NAIC 111), and ranching 

operations (NAIC 112); tourism 

companies (NAIC 713); utility 

companies (NAIC 221); and others. 

Across the United States, there are 

255,871 small real estate companies; 

617,737 small construction companies; 

9,596 small forestry and logging 

companies; 46,730 small tourism 

companies; and 10,173 small utility 

companies. We anticipate receiving 

about 300 § 22.26 take permit 

applications nationwide annually, and 

about 5 § 22.27 emergency nest take 

permits. As noted under the Regulatory 

Planning and Review section above, we 

anticipate issuing approximately 300 

§ 22.26 take authorizations per year are 

expected to be granted across the United 

States if this proposed rule is adopted, 

and approximately 5 emergency nesttake permits. Based on past permit 

authorizations under the ESA, we 

anticipate approximately one-third of 

new permit applicants would be small 

businesses. If 100 applicants are small 

businesses within 4–6 different 

industries across the United States, the 

demand would not represent a 

substantial number of small entities in 

individual industries. The economic 

impact to individual small businesses is 

dependent upon the type of activity in 

which each business engages. As noted 

in the E.O. 12866 section of the 

preamble, permit applicants will incur 

some costs assembling the necessary 

information for the permit application, 

permit fees, and the costs of monitoring 

and reporting associated with the 

permit. For example, an applicant will 

have to pay $500 for a take permit, $300 

for an emergency permit, and $150 for 

permit amendments. In addition, 

particularly for larger projects, there 

may be consultant and/or attorney’s fees 

ranging from a few hundred to 

thousands of dollars. However, the 

permit application process would be 

significantly less burdensome than the 

current ESA. Moreover, if the permit 

applicant is successful, the economic 

benefits to the small entity should 

outweigh the economic costs of 

obtaining the permit. For some 


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individual businesses, the benefit may 

be significant. 

The Department of the Interior 

certifies that this rule would not have a 

significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). The Service invites 

comment from members of the public 

who believe there would be a significant 

impact on small businesses. 

Small Business Regulatory 

Enforcement Fairness Act (SBREFA). 

This rule is not a major rule under 5 

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

Regulatory Enforcement Fairness Act. 

This rule: 

a. Would not have an annual effect on 

the economy of $100 million or more. 

The principal economic effect of the 

rule would be to allow the general 

public to obtain take permits that allow 

activities on their property where 

avoiding impacts to eagles is not 

practicable. We are anticipating that, 

due to increasing bald eagle 

populations, there would be an increase 

in the number of applications for 

permits under this rule compared to the 

number of people who seek 

authorization under the ESA, even 

though not all activities that require 

ESA authorization would require Eagle 

Act authorization. All small entities that 

benefited from the issuance of permits 

under the ESA would continue to 

benefit from permits issued under this 

rule. 

b. Would not cause a major increase 

in costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions. Eagle-take permits 

would not significantly affect costs or 

prices in any sector of the economy. 

This rule would provide a remedy that 

would allow various members of the 

general public to pursue otherwise 

lawful uses of their property where the 

activity will impact eagles. For example, 

a person wishing to build on their 

property in the vicinity of a bald eagle 

nest may apply under this proposed rule 

for a permit to disturb eagles, whereas 

the option would not be possible after 

delisting without the promulgation of 

these regulations. 

c. Would not have a significant 

adverse effect on competition, 

employment, investment, productivity, 

innovation, or the ability of U.S.-based 

enterprises to compete with foreignbased enterprises. This proposed 

regulation would establish a mechanism 

to permit effects from activities within 

the United States that would otherwise 

be prohibited by law. Therefore, the 

effect on competition between U.S. and 

foreign-based enterprises would benefit 

U.S. enterprises. There is no anticipated 

negative economic effect to small 

businesses resulting from this proposed 

rule. 

Unfunded Mandates Reform Act. A 

statement containing the information 

required by the Unfunded Mandates 

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

required. 

a. This rule is not a significant 

regulatory action under the Unfunded 

Mandates Reform Act. A Small 

Government Agency Plan is not 

required. The proposed permit 

regulations that would be established 

through this rulemaking would not 

require actions on the part of small 

governments. 

b. This rule is not a significant 

regulatory action under the Unfunded 

Mandates Reform Act. This rule would 

not impose an unfunded mandate on 

State, local, or tribal governments or the 

private sector of more than $100 million 

per year. Revisions to State regulations 

would not be significant; all States in 

which the bald eagle occurs already 

have their own laws regarding bald 

eagles, including permitting 

mechanisms. 

Takings (E.O. 12630). In accordance 

with Executive Order 12630, the rule 

does not have significant takings 

implications. This rule could affect 

private property by providing owners 

the opportunity to apply for a permit to 

authorize take that would otherwise 

violate the Eagle Act. A takings 

implication assessment is not required. 

Federalism (E.O. 13132). In 

accordance with Executive Order 13132, 

the rule does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

This rule would not interfere with the 

States’ ability to manage themselves or 

their funds. Changes in the regulations 

governing the take of eagles should not 

result in significant economic impacts 

because this rule would allow for the 

continuation of a current activity (take 

of eagles) albeit under a different statute 

(shifting from the ESA to the Eagle Act). 

The proposed regulatory process 

provides States the opportunity to 

cooperate in management of bald eagle 

permits and eases the process for permit 

applications. A Federalism Assessment 

is not required. 

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

accordance with Executive Order 12988, 

the Office of the Solicitor has 

determined that this rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

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

Government-to-Government 

Relationship with Tribes. In accordance 

with the President’s memorandum of 

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

American Tribal Governments’’ (59 FR 

22951) and 512 DM 2, we have 

evaluated potential effects on Federally 

recognized Indian tribes and have 

determined that there are no potential 

effects. This rule would not interfere 

with Tribes’ ability to manage 

themselves or their funds. Although it 

would implement a new eagle-takepermit policy that would be available on 

tribal lands, the option to acquire the 

permit would be the same on all lands 

in the United States. This rule would 

not affect the operations of the eagle 

distribution system of the National 

Eagle Repository. 

Paperwork Reduction Act. This 

proposed rule contains information 

collection requirements. We may not 

conduct or sponsor and a person is not 

required to respond to a collection of 

information unless it displays a 

currently valid OMB control number. In 

accordance with the requirements of the 

Paperwork Reduction Act (PRA), we are 

asking OMB to approve this proposed 

information collection. We will use the 

information that we collect on permit 

applications to determine the eligibility 

of applicants for permits requested in 

accordance with the Eagle Act. Eagle 

permit regulations (50 CFR part 22) and 

general permit regulations (50 CFR part 

13) stipulate general and specific 

requirements that when met allow us to 

issue permits to authorize activities that 

are otherwise prohibited. 

All Service permit applications are in 

the 3–200 series of forms, each tailored 

to a specific activity based on the 

information requirements for specific 

types of permits. The application forms 

for other permits authorized under the 

Eagle Act are covered by OMB Control 

Number 1018–0022. We collect standard 

information for all permits, such as the 

name of the applicant and the 

applicant’s address, telephone and fax 

numbers, and e-mail address. 

We are proposing two additional 

forms to be used as (1) the application 

for a § 22.26 take permit (FWS Form 3–

200–71), and (2) the application for 

emergency take of eagle nests under 

§ 22.27 (FWS Form 3–200–72). The 

additional information we would collect 

on FWS Form 3–200–71 is presented in 

§ 22.26(b) of this proposed regulation, 

and the additional information we 

would collect on FWS Form 3–200–72 

is presented in § 22.27(b). We are 

proposing to use a new form (FWS Form 

3–202–15) as the annual report form for 

the § 22.26 eagle take permit (FWS Form 

3–202–15). The additional information 

that would be collected on the report 

form is presented in § 22.26(e) of this 


jlentini on PROD1PC65 with PROPOSALS2
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proposed regulation. The information 

collected for eagle permits is part of a 

system of records covered by the 

Privacy Act (5 U.S.C. 552(a)). 

We estimate approximately 200 nonFederal applicants will apply for eagletake permits and 3 non-Federal 

applicants will submit applicants for 

emergency nest take permits. We believe 

the annual burden hours for nonFederal entities will be 5,251 as 

indicated in the table below. 

Activity/requirement 

Annual no. of 

respondents 

(non-Federal) 

Total annual 

responses 

Completion 

time per 

response 

(hrs) 

Total 

annual 

burden 

hrs 

Total burden 

cost to public 

($30/hr) 

FWS Form 3–200–71—permit application ........................ 200 200 10 2,000 $60,000 

FWS Form 3–202–15—annual report § 22.26 & monitoring ............................................................................... 300 300 10 3,000 90,000 

FWS Form 3–200–72—permit application ........................ 3 3 6 18 540 

Monitoring and reporting for § 22.27 permit ...................... 3 3 6 18 540 

Amendments to permits ..................................................... 6 6 2 12 360 

Recordkeeping—§ 22.26–27 .............................................. *203 *203 1 203 6,090 

Totals .......................................................................... 512 512 ........................ 5,251 $157,530 

*Not included in totals—respondents are the same as for permit applications. 

We invite interested members of the 

public and affected agencies to 

comment on these proposed information 

collection and recordkeeping activities. 

Comments are invited on: (1) Whether 

or not the collection of information is 

necessary for the proper performance of 

the functions of the Service, including 

whether or not the information will 

have practical utility; (2) the accuracy of 

our estimate of the burden for this 

collection; (3) ways to enhance the 

quality, utility, and clarity of the 

information to be collected; and (4) 

ways to minimize the burden of the 

collection of information on applicants. 

Send your comments and suggestions 

on this information collection to the 

Desk Officer for the Department of the 

Interior at OMB–OIRA at (202) 395–

6566 (fax) or 

OIRA_DOCKET@OMB.eop.gov (e-mail). 

Please provide a copy of your comments 

to Hope Grey, Information Collection 

Clearance Officer, Fish and Wildlife 

Service, MS 222–ARLSQ, 4401 North 

Fairfax Drive, Arlington, VA 22203 

(mail); (703) 358–2269 (fax); or 

hope_grey@fws.gov (e-mail). 

National Environmental Policy Act. 

We have considered this proposed 

action and determined that we will 

prepare an environmental assessment 

(EA) in compliance with the National 

Environmental Policy Act of 1969. The 

public will be invited to participate in 

this process and will be provided an 

opportunity for review and comment on 

the draft EA, when completed. 

Clarity of this regulation. Executive 

Order 12866 requires each agency to 

write regulations that are easy to 

understand. We invite your comments 

on how to make this rule easier to 

understand, including answers to 

questions such as the following: (1) Are 

the requirements in the rule clearly 

stated? (2) Does the rule contain 

technical language or jargon that 

interferes with its clarity? (3) Does the 

format of the rule (grouping and order 

of sections, use of headings, 

paragraphing, etc.) aid or reduce its 

clarity? (4) Would the rule be easier to 

understand if it were divided into more 

(but shorter) sections? (5) Does the 

description of the rule in the 

SUPPLEMENTARY INFORMATION section of 

the preamble help you to understand 

the proposed rule? What else could we 

do to make the rule easier to 

understand? 

Send a copy of any comments about 

how we could make this rule easier to 

understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may also email comments on the clarity of this 

rule to: Exsec@ios.doi.gov. 

List of Subjects 

50 CFR Part 13 

Administrative practice and 

procedure, Exports, Fish, Imports, 

Plants, Reporting and recordkeeping 

requirements, Transportation, Wildlife. 

50 CFR Part 22 

Birds, Exports, Imports, Migratory 

Birds, Reporting and recordkeeping 

requirements, Transportation, Wildlife. 

For the reasons described in the 

preamble, we propose to amend 

Subchapter B of Chapter I, Title 50 of 

the Code of Federal Regulations, as set 

forth below: 

PART 13—[AMENDED] 

1. The authority citation for part 13 

continues to read as follows: 

Authority: 16 U.S.C. 668a, 704, 712, 742j–

1, 1374(g), 1382, 1538(d), 1539, 1540(f), 3374, 

4901–4916; 18 U.S.C. 42; 19 U.S.C. 1202; 31 

U.S.C. 9701. 

2. Amend § 13.11(d)(4) by adding two 

entries under ‘‘Bald and Golden Eagle 

Protection Act’’ in the table, 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 ........................................................................................................................ 50 CFR 22 .................................... 500 150 

Eagle Nest Take—Safety Emergency .............................................................................. 50 CFR 22 .................................... 300 150 


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Type of permit CFR citation Fee Amendment fee 

*****

* * * * * 

3. Amend § 13.12(b) by adding to the 

table the following entries in numerical 

order by section number under ‘‘Eagle 

permits’’ to read as follows: 

§ 13.12 General information requirements 

on applications for permits. 

* * * * * 

(b) * * * 

Type of permit Section 

* * * * * 

Eagle permits: 

* * * * * 

Eagle Take ..................................... 22.26 

Eagle Nest Take—Safety Emergency ........................................... 22.27 

* * * * * 

PART 22—[AMENDED] 

4. The authority citation for part 22 is 

amended to read as follows: 

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

703–712; 16 U.S.C. 1531–1544. 

5. Amend § 22.1 by revising the first 

sentence to read as follows: 

§ 22.1 What is the purpose of this part? 

This part controls the taking, 

possession, and transportation within 

the United States of bald and golden 

eagles and their parts, nests, and eggs 

for scientific, educational, depredation 

control purposes; for the religious 

purposes of American Indian tribes; and 

to protect other interests in a particular 

locality. * * * 

6. Amend § 22.3 as follows: 

a. By removing the definition of 

‘‘Golden eagle nest.’’

b. By revising the definition of ‘‘Take’’

to read as set forth below; and 

c. By adding new definitions for 

‘‘Eagle nest’’ and ‘‘Important eagle-use 

area’’ to read as set forth below. 

§ 22.3 What definitions do you need to 

know? 

* * * * * 

Eagle nest means a structure built, 

maintained, or used by bald or golden 

eagles for the purpose of reproduction. 

* * * * * 

Important eagle-use area means an 

eagle nest, foraging area, or communal 

roost site that eagles rely on for 

sheltering and feeding, and the 

landscape features surrounding such 

nest, foraging area, or roost site that are 

essential for the continued viability of 

the site for breeding, feeding, or 

sheltering eagles. 

* * * * * 

Take means pursue, shoot, shoot at, 

poison, wound, kill, capture, trap, 

collect, destroy, molest, or disturb. 

* * * * * 

7. Amend § 22.4(b) by revising the 

first sentence to read as follows: 

§ 22.4 Information collection requirements. 

* * * * * 

(b) We estimate the public reporting 

burden for these reporting requirements 

to vary from 1 to 10 hours per response, 

with an average of 3 hours per response, 

including time for reviewing 

instructions, gathering and maintaining 

data, and completing and reviewing the 

forms. * * * 

8. Amend § 22.11 as follows: 

a. By revising the first sentence of the 

introductory text to read as set forth 

below; 

b. By redesignating paragraphs (a), (b), 

and (c) as paragraphs (b), (c), and (d); 

and 

c. By adding a new paragraph (a) to 

read as set forth below. 

§ 22.11 What is the relationship to other 

permit requirements? 

You may not take, possess, or 

transport any bald eagle (Haliaeetus 

leucocephalus) or any golden eagle 

(Aquila chrysaetos), or the parts, nests, 

or eggs of such birds, except as allowed 

by a valid permit issued under this part, 

50 CFR part 13, 50 CFR part 17, and/or 

50 CFR part 21 as provided by § 21.2, or 

authorized under a depredation order 

issued under subpart D of this part. 

* * * 

(a) A valid permit that covers take of 

eagles under 50 CFR part 17 constitutes 

a valid permit issued under this part for 

any take authorized under the permit 

issued under part 17 as long as the 

permittee fully complies with the terms 

and conditions of the permit issued 

under part 17. 

* * * * * 

Subpart C—Eagle Permits 

9. Amend part 22, subpart C, by 

adding new § 22.26 and § 22.27 to read 

as follows: 

§ 22.26 Eagle take permits. 

(a) Purpose and scope. This permit 

authorizes: (1) Take of bald and golden 

eagles for the protection of other 

interests in any particular locality, 

where such permits are consistent with 

the preservation of the bald and golden 

eagle, and the take is associated with, 

and not the purpose of, the activity, and 

cannot practicably be avoided; or 

(2) Take of bald eagles that complies 

with the terms and conditions of a 

previously granted section 7 incidental 

take statement, or a section 10 

incidental take permit where the bald 

eagle was the only listed covered 

species, under the Endangered Species 

Act of 1973, as amended (16 U.S.C. 1531 

et seq.). 

(b) Applying for an eagle take permit. 

(1)(i) For applications under paragraph 

(a)(1) of this section, you are advised to 

coordinate with the Service as early as 

possible for technical assistance in 

assembling your permit application 

package and for advice on whether a 

permit is needed. The Service will 

provide guidance on developing 

complete and adequate application 

materials and will determine when the 

application form and materials are ready 

for submission. Completed applications 

(Form 3–200–71) must contain the 

general information and certification 

required by § 13.12(a) of this 

subchapter, and the information listed 

below: 

(A) A detailed description of the 

activity that the permittee believes will 

likely cause the disturbance or other 

take of eagles; 

(B) The species and number of eagles 

that are likely to be taken and the likely 

form of that take; 

(C) Maps and digital photographs that 

depict the locations of the proposed 

activity and the eagle nests, foraging 

areas, and concentration sites where 

eagles are likely to be affected by the 

proposed activity (including the GPS 

coordinates of the activity area and 

eagle-use area(s) and the distance(s) 

between those areas); 

(D) For activities that are likely to 

disturb eagles, whether or not the 

important eagle-use area(s) is visible 

from the activity area, or if screening 

vegetation or topography blocks the 

view; 

(E) The nature and extent of existing 

activities in the vicinity similar to that 


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being proposed, and the distance 

between those activities and the 

important eagle use area(s); 

(F) The date the activity will start and 

is projected to end; 

(G) An explanation of what 

interests(s) in a particular locality will 

be protected by the take (including any 

anticipated benefits to the applicant); 

(H) An explanation of why avoiding 

the take is not practicable, or for lethal 

take, why it is unavoidable; 

(I) A description of measures 

proposed to minimize and mitigate the 

impacts; and 

(J) Other information the Service may 

request specific to that particular 

proposal and consistent with the 

information collection requirements of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). 

(ii) You are responsible for 

conducting any field surveys that we 

need for your application to be 

complete, including compiling data on 

the location and status of eagle nests 

and important use areas within the 

affected area. 

(iii) Send completed permit 

applications to the Regional Director of 

the Region in which the disturbance 

would occur—Attention: Migratory Bird 

Permit Office. You can find the current 

addresses for the Regional Directors in 

§ 2.2 of subchapter A of this chapter. 

(2) For applications under paragraph 

(a)(2) of this section, your application 

must consist of a copy of the applicable 

section 7 incidental take statement or 

section 10 incidental take permit issued 

pursuant to the Endangered Species Act 

(ESA), and a certification that you are 

fully complying with the terms and 

conditions of the ESA authorization. 

(c) Evaluation of applications. (1) In 

our evaluation of permit applications 

under paragraph (a)(1) of this section, 

we will consider a number of factors, 

including whether practicable measures 

can be undertaken that would minimize 

the probability of take, and whether the 

take to be permitted is compatible with 

the preservation of bald or golden 

eagles. Factors to be considered may 

include the magnitude of the impacts of 

the activity; individual eagles’ prior 

exposure to, and history with, the 

activity; visibility of the activity from 

the eagle’s nest, roost, or foraging 

perches; whether alternative suitable 

eagle nesting, roosting, and/or feeding 

habitat is available to the eagles affected 

by the activity; and practices that will 

be employed by the applicant to reduce 

the potential take of eagles. In cases 

where our evaluation of these additional 

factors leads to the conclusion that 

disturbance or other take will likely 

occur, we will assess whether that take 

is likely to lead to a decrease in eagle 

population size. If a population decrease 

is likely, we will assess whether or not 

that decrease is compatible with the 

long-term preservation of bald and 

golden eagles. For applications for 

activities that are likely to result in eagle 

mortalities, we will assess whether the 

activity is necessary for the public 

welfare and whether the project 

proponent is using Best Management 

Practices (BMPs) to prevent the take. 

Permits will authorize anticipated lethal 

take only where BMPs are fully 

implemented. 

(2) For applications under paragraph 

(a)(2) of this section, we will evaluate 

whether you are in full compliance with 

the terms and conditions of the 

applicable Endangered Species Act 

authorization. 

(d) Required determinations. (1) 

Before we issue a permit under (a)(1) of 

this section, we must find that: 

(i) The taking is necessary to protect 

an interest in a particular locality, and 

for lethal take, the activity is also 

necessary for the public welfare; 

(ii) The applicant has minimized 

impacts to bald eagles to the extent 

practicable, and for lethal take, the 

taking will occur despite application of 

BMPs; 

(iii) The taking is compatible with the 

preservation of bald and golden eagles, 

including the cumulative effects of other 

similar existing and anticipated 

activities. 

(2) For a permit under (a)(2) of this 

section, you are in full compliance with 

the terms and conditions of an ESA 

authorization for eagle. 

(e) Permit conditions. (1) For permits 

issued under paragraph (a)(1) of this 

section, in addition to the conditions set 

forth in part 13 of this subchapter, 

which govern permit renewal, 

amendment, transfer, suspension, 

revocation, and other procedures and 

requirements for all permits issued by 

the Service, your authorization is 

subject to the following additional 

conditions: 

(i) You must comply with any 

minimization, mitigation, or other 

conservation measures determined by 

the Director as reasonable to assure the 

preservation of eagles and practicable 

given the proposed activity, and which 

are included in the terms of your 

permit; 

(ii) You must monitor eagle use of 

important eagle-use areas potentially 

affected by your activities for up to 3 

years or as set forth in a separate 

management plan, as specified on your 

permit. You must submit an annual 

report to the Service every year that 

your permit is valid and for up to 3 

years after completion of the activity or 

termination of the permit, as specified 

in your permit. If your permit expires or 

is suspended or revoked before the 

activity is completed, you must submit 

the report within 60 days of such date. 

Reporting requirements include: 

(A) Information on eagle use of the 

important eagle-use areas potentially 

affected. 

(B) Description of the human 

activities conducted at the site when 

eagles were observed. 

(iii) While the permit is valid and for 

up to 3 years after it expires, you must 

allow Service personnel, or other 

qualified persons designated by the 

Service, access to the areas where eagles 

are likely to be affected, at any 

reasonable hour, and with reasonable 

notice from the Service, for purposes of 

monitoring eagles at the site(s). 

(iv) The authorizations granted by 

permits issued under this section apply 

only to take that results from activities 

conducted in accordance with the 

description contained in the permit 

application and the terms of the permit. 

If the permitted activity changes after a 

permit is issued, you must immediately 

contact the Service to determine 

whether a permit amendment is 

required in order to continue to retain 

take authorization. 

(v) Notwithstanding the provisions of 

§ 13.26 of this subchapter, you remain 

responsible for any outstanding 

minimization, mitigation, or other 

conservation measures required under 

the terms of the permit for take that 

occurs prior to expiration, suspension, 

or revocation of the permit. 

(2) For permits issued under 

paragraph (a)(2) of this section, you 

must comply with all terms and 

conditions of your authorization issued 

under section 7 or section 10 of the 

Endangered Species Act. 

(f) Permit duration. (1) The duration 

of each permit issued under paragraph 

(a)(1) of this section will be designated 

on its face, and will be based on the 

duration of the proposed activities and 

mitigation measures. 

(2) The duration of a permit issued 

under paragraph (a)(2) of this section is 

that designated on the face of the 

applicable Endangered Species Act 

incidental-take authorization. 

22.27 Removal of eagle nests for safety 

emergencies. 

(a) Purpose and scope. A permit may 

be issued under this section to facilitate 

removal or relocation of an eagle nest 

where its location poses a threat to 

public safety or to the eagles 

themselves. Where practicable, the nest 

should be relocated to a suitable site 


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within the same territory to provide a 

viable nesting option for eagles within 

that territory, unless such relocation 

would create a similar threat to safety. 

However, the Service retains the 

discretion in appropriate instances to 

issue permits to remove nests that we 

determine cannot be relocated. The 

permit may authorize take of eggs or 

nestlings if present. The permit may 

also authorize the take of eagles (i.e., 

disturbance) associated with and 

resulting from the removal of the nest. 

(b) Applying for a permit to take eagle 

nests for safety needs. Before compiling 

and submitting your permit application, 

you should contact your local U.S. Fish 

and Wildlife Service Ecological Services 

Office. We may make an on-site 

assessment to verify that the location of 

the nest poses a threat to human or eagle 

safety. Send a completed application 

(Form 3–200–72) and permit application 

fee to the Regional Director of the 

Region in which the disturbance would 

occur—Attention: Migratory Bird Permit 

Office. You can find the current 

addresses for the Regional Directors in 

§ 2.2 of subchapter A of this chapter. 

Your application must contain the 

general information and certification 

required by § 13.12(a) of this 

subchapter, and the information listed 

below: 

(1) The number of nests proposed to 

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

eagle or golden eagle nest, and whether 

the nest(s) is active or inactive; 

(2) Why the removal of each nest is 

necessary to alleviate safety concerns; 

(3) A description of the property, 

including maps and digital photographs 

that show the location of the nest in 

relation to buildings, infrastructure, and 

human activities; 

(4) The location of the property, 

including latitude and longitude; 

(5) The length of time for which the 

permit is requested, including beginning 

and ending dates; 

(6) A statement indicating the 

intended disposition of the nest, and if 

active, the nestlings or eggs; and 

(7) Other information the Service may 

request specific to that particular 

proposal and consistent with the 

information collection requirements of 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). 

(c) Evaluation criteria. In our 

evaluation of permit applications, we 

will consider whether the purpose for 

which the nest would be taken is a 

legitimate emergency safety concern, 

and whether the take of the nest is 

consistent with the preservation of bald 

and golden eagles. 

(d) Conditions. (1) Any take of 

nestlings or eggs must be conducted by 

a qualified, permitted, designated agent, 

and all nestlings and eggs must be 

immediately transported to foster/ 

recipient nests or a rehabilitation 

facility permitted to care for eagles until 

such time as they can be placed in 

foster/recipient nests. 

(2) Possession of the nest for any 

purposes other than removal or 

relocation is prohibited without a 

separate permit issued under this part 

authorizing such possession. 

(3) You must submit a report of 

activities conducted under the permit to 

the Service within 30 days after the 

permitted take occurs. 

(4) You may be required to monitor 

the site and report whether eagles 

attempt to build or nest in another nest 

in the vicinity for the duration specified 

in the permit. 

(5) You may be required under the 

terms of the permit to harass eagles from 

the area following the nest removal 

when the Service determines it is 

necessary to prevent eagles from renesting in the vicinity and when it is 

practicable to do so. 

(e) Tenure of permits. The tenure of 

any permit to take eagle nests under this 

section is 1 year from the date of 

issuance, unless a shorter period of time 

is prescribed on the face of the permit. 

Dated: May 23, 2007. 

Todd Willens, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 07–2697 Filed 6–4–07; 8:45 am] 

BILLING CODE 4310–55–P 


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