31132 Federal Register / Vol. 72, No. 107 / Tuesday, June 5, 2007 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 22 

RIN 1018–AT94 

Protection of Eagles; Definition of 

‘‘Disturb’’ 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (the Service), are 

codifying a definition of ‘‘disturb’’ 

under the Bald and Golden Eagle 

Protection Act (Eagle Act). Given that 

the Eagle Act’s prohibition against 

disturbance applies to both bald and 

golden eagles, the definition will apply 

to golden eagles (Aquila chrysaetos) as 

well as bald eagles (Haliaeetus 

leucocephalus). 

If the bald eagle is delisted, the Eagle 

Act will be the primary law protecting 

bald as well as golden eagles. The Eagle 

Act prohibits unregulated take of bald 

and golden eagles and provides a 

statutory definition of ‘‘take’’ that 

includes ‘‘disturb.’’ Although disturbing 

eagles has been prohibited by the Eagle 

Act since the statute’s enactment in 

1940, the meaning of ‘‘disturb’’ has not 

been explicitly defined by the Service or 

by the courts. To define ‘‘disturb,’’ we 

considered Congressional intent, the 

common meaning of the term as applied 

to the conservation intent of the Eagle 

Act, and the working definitions of 

‘‘disturb’’ currently used by Federal and 

State agencies to manage eagles. This 

definition of ‘‘disturb’’ will apply to 

eagles in Alaska, where the bald eagle 

has never been listed under the ESA, as 

well as eagles throughout the 48 

contiguous States. (Eagles do not occur 

in Hawaii.) 

In addition to this final rule, the 

Service is publishing three related 

documents elsewhere in today’s Federal 

Register: a notice of availability of the 

final environmental assessment for the 

definition of ‘‘disturb’’; a notice of 

availability for National Bald Eagle 

Management Guidelines; and a 

proposed rule to codify additional take 

authorizations under the Eagle Act. 

DATES: This rule goes into effect on July 

5, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Eliza Savage, Division of Migratory Bird 

Management, (see ADDRESSES section); 

or via e-mail at: Eliza_Savage@fws.gov; 

telephone: (703) 358–2329; or facsimile: 

(703) 358–2217. 

SUPPLEMENTARY INFORMATION: 

Background 

On February 16, 2006, in anticipation 

of possible removal (delisting) of the 

bald eagle in the 48 contiguous States 

from the List of Endangered and 

Threatened Wildlife under the 

Endangered Species Act (ESA) (16 

U.S.C. 1531 et seq.), we proposed a 

regulatory definition of ‘‘disturb’’ under 

the Bald and Golden Eagle Protection 

Act (Eagle Act) (16 U.S.C. 668–668d) to 

guide post-delisting bald eagle 

management (71 FR 8265). The Service 

concurrently proposed two other related 

actions: (1) A notice of availability of 

draft National Bald Eagle Management 

Guidelines (Guidelines) (71 FR 8309, 

February 16, 2006); and (2) a reopening 

of the comment period on our proposal 

to remove the bald eagle from the List 

of Endangered and Threatened Wildlife 

under the ESA (71 FR 8238, February 

16, 2006). On May 16, 2006, we 

extended the 90-day comment period on 

those actions by 30 days, to June 19, 

2006 (71 FR 28293). Fifty-five 

respondents commented on both the 

definition of disturb and the draft 

Guidelines. Eighteen commented on the 

definition only and 31 commented on 

the Guidelines only. 

The definition of ‘‘disturb’’ we 

proposed on February 16, 2006 read: 

‘‘Disturb means to agitate or bother a 

bald or golden eagle to the degree that 

interferes with or interrupts normal 

breeding, feeding, or sheltering habits, 

causing injury, death, or nest 

abandonment.’’ On December 12, 2006, 

we made available a Draft 

Environmental Assessment (DEA) of our 

proposed definition of ‘‘disturb,’’ and 

announced its availability through a 

notice in the Federal Register (71 FR 

74483). In the DEA, we considered a 

definition slightly modified from the 

definition proposed in February as our 

preferred alternative. The definition was 

reworded for purposes of clarity, and 

included a definition of ‘‘injury,’’ a term 

used in the definition of ‘‘disturb.’’ 

During this round of public comment, 

we received 1,977 comments, 

approximately 1,875 of which were very 

similar to one another. 

The definition of disturb we are 

codifying through this rulemaking is a 

modification of the definition we 

identified as our preferred alternative in 

the DEA and reflects our consideration 

of the various concepts raised to us in 

the comment processes. The following 

definition of ‘‘disturb’’ will be codified 

in regulations at 50 CFR 22.3: ‘‘Disturb 

means 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.’’ The 

final definition thus reduces 

uncertainty, adds clarity, and 

appropriately implements the Eagle Act. 

The definition was reworded from the 

preferred alternative in the DEA to 

address concerns expressed about 

enforceability and predictability. The 

earlier definitions we had proposed 

required injury, death, or nest 

abandonment to have occurred, whereas 

the final definition includes the phrase 

‘‘or is likely to cause,’’ with the result 

that all actions that are likely to cause 

the biologically significant event (injury, 

loss of productivity, or nest 

abandonment) by agitating and 

interfering with eagles will constitute 

disturbance, whether or not the harm is 

documented. Requiring actual injury, 

death, or nest abandonment was viewed 

as creating uncertainty as to whether a 

disturbance has taken place or whether 

it will, since death or injury will almost 

always occur at a later date and 

sometimes a different location. It also 

implies that actual harm will have to be 

proven to have taken place, which 

would make the prohibition difficult to 

enforce without evidence of a dead or 

injured eagle. The final definition is 

more consistent with the separate 

elements used in the Eagle Act to define 

‘‘take’’ as well as how the term 

‘‘disturb’’ has been applied in the past 

for managing eagles. We are not aware 

of any local, State, Federal, or tribal 

guidance or regulation that interprets 

the term ‘‘disturb’’ to require a threshold 

as severe as wounding or death. 

We believe the addition of the phrase 

‘‘likely to cause, based on the best 

scientific information available’’ in the 

final rule increases predictability and is 

the logical outgrowth of the comment 

process. Many commenters, including 

numerous state wildlife agencies and 

our own Office of Law Enforcement, 

encouraged us to incorporate a 

‘‘likelihood’’ clause for purposes of 

predictability and enforceability. 

Without such a clause, similar actions 

may be treated differently, depending 

on their outcome. Additionally, the 

phrase is consistent with the goal of the 

Eagle Act of protecting eagles by 

preventing injury. The Service will use 

the best available information to predict 

the likely outcomes of an action or 

activity. If it is clear an action is likely 

to cause one of the negative results, 

there is a high degree of predictability 

that the disturbance will occur in 


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violation of the Eagle Act. It is at this 

time, when the actor is contemplating 

the action, that predictability is 

important, because that is when 

alternatives are available. 

In addition to immediate impacts, this 

definition also covers impacts that 

result from human-caused alterations 

initiated around a previously used nest 

site during a time when eagles are not 

present, if, upon the eagle’s return, such 

alterations agitate or bother an eagle to 

a degree that injures an eagle or 

substantially interferes with normal 

breeding, feeding, or sheltering habits 

and causes, or is likely to cause, a loss 

of productivity or nest abandonment. 

Because one of the criteria for 

disturbance in the proposed definition 

of ‘‘disturb’’ was ‘‘injury,’’ we proposed 

in the DEA to define ‘‘injury’’ to clarify 

our intent. We included the following 

definition of ‘‘injury’’ as part of our 

preferred alternative in the DEA: ‘‘Injury 

means a wound or other physical harm, 

including a loss of biological fitness 

significant enough to pose a discernible 

risk to an eagle’s survival or 

productivity.’’ We intended this 

definition to clarify that ‘‘injury’’ is not 

restricted to a wound in which skin is 

torn or bruised, or bones are broken. 

Defining ‘‘injury’’ to include a decrease 

in biological fitness of the eagle 

significant enough to affect productivity 

would clarify that interference with 

feeding and sheltering habits can cause 

disturbance short of the eagle being 

wounded or killed. The inclusion of 

decreased productivity in the definition 

of ‘‘injury’’ underscored the biological 

premise that preservation of eagles 

depends on protection from disturbance 

when feeding and sheltering as well as 

when nesting. In this final rule, we do 

not define ‘‘injury’’ separately because 

the final definition of ‘‘disturb’’ directly 

incorporates the phrase ‘‘decrease in its 

productivity,’’ removing the need for a 

separate definition of ‘‘injury.’’

A decrease in productivity refers to 

the reproductive capacity of the eagle(s). 

A decrease in productivity can be 

caused by events that occur at various 

stages of an eagle’s life cycle. For 

example, a decrease in productivity can 

occur because eagles are not fit enough 

after the wintering season to breed (e.g., 

if they have not adequately fed or 

sheltered). A decrease in productivity 

can also occur after eagles have initiated 

breeding behaviors; for example, if they 

do not lay eggs or lay fewer eggs than 

would be expected based on the best 

scientific information available, due to 

interruptions in their normal behavior. 

It may also occur if eggs do not hatch 

after being exposed to extreme heat or 

cold in the absence of the adults, or 

when nestlings do not survive long 

enough to fledge because they are not 

adequately fed by adults due to 

interference at an important foraging 

area. All of these outcomes can be 

caused by factors unrelated to human 

activity. A decrease in productivity is 

only a prohibited disturbance if it is the 

result, or likely to be the result, of 

activities by humans that agitates and 

bothers the birds and substantially 

interferes with breeding, feeding, or 

sheltering behavior. 

The final definition removes the 

reference to death, since ‘‘injury’’ is a 

broader term than ‘‘death’’ and 

encompasses injury that results in 

death. Also, as several commenters 

noted, killing eagles is already 

prohibited under the Eagle Act, so it is 

not necessary to repeat that prohibition 

within the definition of ‘‘disturb.’’ We 

also note that a definition of ‘‘disturb’’

that required death or injury might be 

vulnerable to a claim that the definition 

renders the word ‘‘disturb’’ as 

surplusage, given that the Eagle Act’s 

definition of ‘‘take’’ separately lists the 

terms ‘‘kill’’ and ‘‘wound.’’

We also note that 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).) 

In any event, the final definition 

cannot—and does not—broaden the 

protections provided by the Eagle Act, 

but merely clarifies the meaning of the 

protection that exists. 

Response to Comments on the 

Definitions Identified in the February 

16, 2006, Proposed Definition and the 

Draft Environmental Assessment 

Comment 1: The Service needs to 

formally grandfather existing ESA take 

authorizations under section 10 permits 

and section 7 biological opinions. 

Service response: If the bald eagle is 

delisted, the Service will honor existing 

ESA incidental take authorizations. At 

least until we complete a rulemaking for 

permits under the Bald and Golden 

Eagle Protection Act, we do not intend 

to refer for prosecution the take of any 

bald eagle under the Migratory Bird 

Treaty 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 is in full 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)(A) or 10(a)(1)(B) of the ESA. 

Consistent with its authority under the 

Eagle Act, the Service has proposed in 

today’s Federal Register, a separate 

rulemaking to establish criteria for 

issuance of permits to authorize the 

‘‘take’’ of bald and golden eagles. We 

address previous ESA authorizations for 

incidental take of bald eagles in that 

rulemaking, which, if finalized, would 

extend comparable authorizations under 

the Eagle Act. 

Comment 2: The Service should 

provide assurances to persons who 

received ‘‘authorizations’’ granted 

through letters of technical assistance 

while the bald eagle was listed under 

the ESA. 

Service response: The nature and 

degree of assurances that were provided 

by letters of technical assistance will not 

be altered by removal of the bald eagle 

from the list of threatened wildlife 

under the ESA. 

Comment 3: A new incidental take 

permitting system needs to be 

developed under the Eagle Act. A 

mechanism is needed to address 

situations where incidental take will be 

unavoidable (e.g., highway 

maintenance, bald eagles nesting at the 

end of an airport runway). An incidental 

take permit would provide conservation 

benefits because it would allow the 

Service to work with applicants to 

establish mitigation measures that can 

provide a net benefit to eagles and other 

wildlife. Moreover, a permit mechanism 

with associated monitoring and 

reporting requirements would provide 

the Service with valuable data and 

information about the real effects of 

activities on eagles, allowing the Service 

to modify management practices 

accordingly. The Eagle Act provides for 

this type of incidental take 

authorization by inclusion of the 

following language: ‘‘Whenever, after 

investigation, the Secretary of the 

Interior shall determine that it is 

compatible with the preservation of the 

bald eagle or the golden eagle to permit 

the taking, possession, and 

transportation of specimens thereof ‘‘ or 

that it is necessary to permit the taking 

of such eagles for the protection of 

wildlife or of agricultural or other 

interests in any particular locality, he 

may authorize the taking of such eagles 

pursuant to regulations which he is 


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hereby authorized to prescribe’’ (16 

U.S.C. 668a). 

Service response: We agree with this 

comment and have proposed a take 

permit regulation, published in today’s 

Federal Register, that would authorize 

the take of bald and golden eagles under 

certain conditions, including 

requirements for conservation measures 

and monitoring. The regulations we 

have proposed would (1) establish a 

take permit under the Eagle Act, (2) 

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 

and incidental take statements issued 

under ESA section 7, and (3) authorize 

take of eagle nests that pose a risk to 

human safety or to the eagles 

themselves. 

Take permits would be issued under 

50 CFR part 22, Eagle Permits. The 

permits would also provide any 

necessary authorization under the 

Migratory Bird Treaty Act, as 

implemented through 50 CFR 22.11(a), 

which states, ‘‘You do not need a permit 

under parts 17 and 21 ‘‘ for any activity 

permitted under this part 22 with 

respect to bald and golden eagles.’’ The 

take permit provisions would primarily 

authorize disturbance of eagles. 

However, the regulations could also 

authorize other take of eagles where 

such take cannot be avoided. For 

example, take could be authorized for a 

utility that follows best management 

practices for minimizing eagle 

mortalities. Even the use of best 

management practices cannot ensure 

that eagles will not be killed by a 

collision with power lines, and the 

regulation could cover such take. 

Comment 4: As currently written, 

harm to eagles would have to be proven 

after the fact, despite the widespread 

knowledge that many effects on eagles 

have predictable results. The definition 

restricts enforcement to incidents where 

death, injury, or nest abandonment has 

already occurred. In addition, the injury 

or death will almost always occur at a 

later date and sometimes a different 

location. This type of after-the-fact 

cause and effect relationship would 

make violations too difficult to legally 

establish, and would seriously 

compromise law enforcement and fail to 

protect eagles. Another unfortunate 

result will be that equally culpable acts 

will be treated differently depending on 

whether a dead or wounded eagle is 

recovered. Neither the actor nor the 

government can know whether the 

action is lawful or unlawful. 

Service response: We agree with these 

concerns. To address them, we modified 

the definition to make clear that it 

encompasses impacts to eagles that 

cause ‘‘or are likely to cause’’ injury, 

decreased productivity or nest 

abandonment. This definition no longer 

restricts enforcement to situations 

where death, injury, or nest 

abandonment has already occurred. The 

definition codified by this rule therefore 

facilitates law enforcement, avoids the 

use of the term ‘‘kill,’’ which is also 

defined in the Eagle Act as a take, adds 

predictability for the regulated public by 

treating similar actions the same way, 

and ensures better protection for eagles. 

Comment 5: The threshold impacts of 

death, injury, and nest abandonment are 

too extreme. The regulatory definition of 

‘‘disturb’’ should be closer to the plain 

meaning of the term in common usage, 

which does not imply any such severe 

results. Furthermore, the Eagle Act 

already makes it illegal to ‘‘wound’’ and 

‘‘kill’’ eagles, so the proposed definition 

is largely redundant. 

Service response: The modifications 

we describe in our preceding response 

address these concerns in part. In 

addition, see the discussion in the Final 

Environmental Assessment explaining 

why defining ‘‘disturb’’ as simply 

causing a physiological response in an 

eagle is inconsistent with the intent of 

the BGEPA. 

Comment 6: The Eagle Act only 

prohibits intentional and non-incidental 

take. ‘‘Disturb’’ can only apply where 

the act is intentionally directed at 

eagles. 

Service response: We do not agree that 

the Eagle Act protects eagles only from 

actions intentionally directed at them, 

and that ‘‘disturb’’ was not meant to 

apply to other indirect or incidental 

impacts to eagles. Such an 

interpretation is too large a deviation 

from the common usage of the word 

‘‘disturb,’’ which more often than not 

refers to incidental impacts (e.g., her 

tranquility was disturbed by the 

neighbor’s leaf blower). Also, Congress 

reaffirmed the Eagle Act’s prohibition of 

incidental take in 1978, when it 

amended the Eagle Act to authorize the 

issuance of permits to take golden eagle 

nests. Without the amendment, mining 

companies faced violating the Eagle Act 

by incidentally taking golden eagles 

during mining operations. 

Comment 7: The Eagle Act only 

applies where an act was committed 

‘‘knowingly or with wanton disregard.’’

The definition should incorporate that 

requirement. 

Service response: This comment fails 

to discern between the criminal 

provisions of the Act, which require 

those elements, and the civil provisions, 

which do not. Congress specifically left 

that phrase out of the Eagle Act section 

addressing civil penalties (16 U.S.C. 

668(b)), signaling that civil violations 

are subject to strict liability standards. 

For criminal violations, since the statute 

already limits those to acts that are 

conducted ‘‘knowingly or with wanton 

disregard’’ (16 U.S.C. 668(a)), there is no 

reason to repeat the phrase within the 

definition of ‘‘disturb.’’

Comment 8: The definition should 

require a negligent standard of conduct 

in order to add fairness, objectivity, and 

a predictable standard to the proposed 

regulation. We see nothing in the overall 

definition of take to imply that Congress 

wanted the Eagle Act to punish good 

faith or innocent conduct. 

Service response: Criminal penalties 

under the Eagle Act already require a 

negligent standard conduct. Therefore, 

innocent conduct committed in good 

faith is not subject to criminal 

prosecution. As noted in our preceding 

response, Congress deliberately enacted 

a strict liability standard for civil 

penalties, a standard that uniformly 

applies to each prohibition of the act. 

Even so, the Service has rarely, if ever, 

brought any kind of enforcement action 

under the Eagle Act against a person 

acting in good faith, even where eagles 

have been killed. Also, to reduce the 

possibility that people will innocently 

violate the Eagle Act by disturbing 

eagles, we have developed Guidelines 

for how to conduct activities to 

minimize the potential for inadvertent 

disturbance. As stated in the Guidelines, 

we will prioritize enforcement efforts to 

focus on violations committed without 

regard to the consequences of the 

actions and the availability of 

conservation measures such as those 

recommended in the Guidelines. We 

also have proposed permit regulations 

to establish a means by which a person 

can gain authorization to take eagles, 

and thereby avoid criminal or civil 

liability. 

Comment 9: The definition 

inappropriately incorporates habitat 

protection, which is not authorized by 

the Eagle Act. 

Service response: The Service agrees 

that the Eagle Act is not a habitat 

management law, however, there is a 

difference between protecting habitat 

per se, and protecting eagles in their 

habitat. The proposed and final 

definitions protect eagles from certain 

effects to the eagles themselves that are 

likely to occur as the result of various 

activities, including some habitat 

manipulation. 

Comment 10: The proposed definition 

will not satisfy the Eagle Act’s 


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Federal Register / Vol. 72, No. 107 / Tuesday, June 5, 2007 / Rules and Regulations 31135 

conservation goals; it should be revised 

to explicitly include habitat 

modification or degradation. 

Service response: The Eagle Act 

contains no provisions that directly 

protect habitat except for nests. 

Individual members of the species are 

protected from certain effects to 

themselves that are likely to occur as the 

result of various human activities, 

including some habitat manipulation. 

Activities that disrupt eagles at nests, 

foraging areas, and important roosts can 

wound, kill, or disturb eagles, each of 

which is specifically prohibited by the 

Eagle Act. Therefore, eagle nests, 

important foraging areas, and communal 

roost sites are accorded protection 

under the Eagle Act to the degree that 

their loss would disturb or kill eagles. 

Comment 11: The definition of 

disturb should not apply to feeding or 

sheltering eagles or to the impacts of 

activities that take place outside the 

nesting season. 

Service response: The Eagle Act’s 

stated goal is the preservation of the 

bald eagle and the golden eagle. We are 

aware of no provision of the Eagle Act 

or its legislative history to suggest that, 

in enacting the law, Congress intended 

to protect only breeding eagles from 

disturbance, and only during the nesting 

season. Activities that disrupt eagles at 

foraging areas and important roosts can 

lead to decreased productivity, injury, 

or death. 

Comment 12: Under the proposed 

definition, ‘‘injury’’ is not defined and 

could be interpreted narrowly to equate 

with ‘‘wound.’’ If so, the prohibition 

against disturbing eagles will have no 

meaning independent of the Eagle Act’s 

other prohibitions against wounding 

and killing eagles, unless a nest is 

abandoned. The proposed definition 

would provide little protection for 

eagles at communal wintering sites and 

foraging areas, since neither wounding 

nor death is likely to be directly 

connected to the disruption of feeding 

or sheltering behavior, even though 

such disruption can affect survival and 

productivity. 

Service response: We agree that the 

definition proposed on February 16, 

2006 (71 FR 8265), did not adequately 

protect nonbreeding eagles. Because the 

threshold requirement was injury, 

death, or nest abandonment, the 

definition could have been interpreted 

to mean that, aside from the scenario of 

nest abandonment, an eagle would have 

to be wounded (e.g., cut or bruised) or 

killed to have been disturbed. We 

believe that threshold was too high and 

did not adequately protect eagles other 

than when they are nesting (when nest 

abandonment is an issue) and was 

inconsistent with the statutory 

definition of ‘‘take’’ because ‘‘wound’’

and ‘‘kill’’ were separate specified 

elements of ‘‘take.’’ To address this 

weakness, the preferred alternative of 

our DEA included a definition of 

‘‘injury’’ to clarify that it includes a 

‘‘loss of biological fitness significant 

enough to pose a discernible risk to an 

eagle’s survival or productivity.’’ That 

definition better protects non-breeding 

eagles from disturbance at foraging areas 

and winter roost sites, where human 

activity is unlikely to actually wound or 

kill an eagle, but may have serious 

effects on long-term viability. Although 

the final rule does not contain a separate 

definition of ‘‘injury,’’ it instead 

incorporates such elements into its 

definition of ‘‘disturb.’’

Comment 13: Including nest 

abandonment in the definition raises the 

possibility that a one-time departure 

from the nest could constitute nest 

abandonment. ‘‘Nest abandonment’’

needs to be defined in the regulation to 

exclude mere flushing from the nest. 

Service response: The Service defined 

‘‘nest abandonment’’ in the glossary to 

the draft Guidelines (see 71 FR 8309, 

February 16, 2006), which have now 

been finalized after considering 

comments received from the public (see 

our notice of availability in today’s 

Federal Register and our Web site at 

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

baldeagle.htm). We do not believe it is 

necessary to also include this definition 

in the final rule. 

Comment 14: Nest abandonment 

should not be included in the definition 

of disturb. If no injury or death has 

occurred, then nest abandonment 

should not be of concern. The proposed 

definition would apply to situations in 

which adult eagles do not return to a 

particular tree to nest, on either a 

temporary or permanent basis, without 

adverse biological effect and for a 

variety of reasons not related to human 

activity. This leaves far too much 

discretion to the individual enforcement 

authorities at FWS, and creates an 

impossible burden of proof for those 

trying to implement projects or engage 

in needed maintenance activities. Also, 

there is no clear standard as to the 

contribution of human activity to nest 

abandonment. This will result in strict 

liability regardless of whether their 

activity can be shown to have caused 

the abandonment. 

Service response: First, nest 

abandonment is not always due to 

interference from humans. Nest 

abandonment caused by non-human 

factors is not a violation of the Eagle 

Act. The fact that similar outcomes can 

be brought about by other factors is no 

reason not to regulate human-caused 

outcomes. This is similar to other 

actions and results prohibited by the 

Eagle Act and many other statutes. For 

example, all eagles die eventually, 

whether or not someone kills them. This 

does not prevent the Service from 

enforcing the Eagle Act’s prohibition 

against killing eagles. Only ‘‘nest 

abandonment caused by intentional 

human activity that disturbs eagles 

would be subject to criminal 

prosecution. We view the standard set 

in this definition as sufficiently high to 

avoid capturing activities conducted 

according to a reasonable standard of 

care based on readily available 

guidance, and therefore we disagree that 

it creates an impossible burden of proof 

for those attempting to comply. 

Enforcement authorities will continue to 

exercise the discretion they have (which 

arguably will be reduced substantially 

merely by the promulgation of this 

clarifying regulation) in a reasonable 

manner. As far as the concern regarding 

strict liability, the inclusion of ‘‘nest 

abandonment’’ would not result in strict 

liability any more than many legal 

prohibitions, including the Eagle Act’s 

prohibition against killing eagles. In any 

case, even strict liability requires a 

showing of causation. In fact, the 

burden of proof would be greater for 

nest abandonment. First, the Service 

would have to demonstrate that an eagle 

was agitated or bothered, then that there 

was substantial interference with 

normal breeding, feeding, or sheltering 

behaviors, then that the activity, based 

on the best scientific information 

available, either caused or was likely to 

cause the abandonment. 

Second, nest abandonment may have 

an adverse biological impact even 

without an eagle being killed or injured. 

Nest abandonment prior to egg-laying 

will generally have a negative effect on 

eagle productivity unless the eagles use 

an alternate nest without significant 

delay. Therefore, eagle populations can 

be affected by nest abandonment 

without the occurrence of actual injury 

or death of nestlings or eggs. 

Third, even where eagles re-nest 

elsewhere and successfully breed, the 

disturbance will have a long-term effect 

on eagles if the interference continues 

until the nest is no longer viable. The 

Guidelines suggest that, after five years 

of disuse, nests may no longer merit 

protection from disturbance. When 

human activities completely surround 

the nest at close proximity, eagles will 

usually not re-use the nest. After five 

years, the nest site would be lost for all 

intents and purposes, and may result in 

a significant biological impact on eagles. 

In Florida, for example, many biologists 


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believe that bald eagles have been 

nesting in closer proximity to humans 

and to one another because available 

nest sites are limited, leading to 

speculation that eagle populations in 

Florida will not significantly increase 

from current size, due to a lack of 

available nest sites. If so, the loss of a 

nest site will result in a decrease in the 

eagle population. The Eagle Act 

specifically protects nests. That 

statutory protection recognizes that 

nests are biologically significant 

structures constructed in specific 

locations selected by eagles because of 

the presence of various ecological 

factors necessary for survival and 

productivity. 

Comment 15: The Service should add 

the word ‘‘premature’’ before nest 

abandonment to clarify that it does not 

include the scenario where eagles do 

not occupy a nest in a given year, 

switching to another nest nearby, or 

building a new nest and not using the 

old one. 

Service response: The guidelines 

provide for consideration of impacts to 

nests and alternate nests. Alternate nests 

are important to eagle productivity, and 

are protected by the Eagle Act. 

Comment 16: Including nest 

abandonment in the definition extends 

liability beyond proximate cause and 

results in too much uncertainty for the 

public. Landowners need to know in 

advance whether their actions might 

disturb eagles. The proposed definition 

does not provide enough certainty. 

Service response: With regard to its 

prohibition of disturbance, the Eagle Act 

is concerned with a result of an action 

(with respect to the eagle), rather than 

the action itself. This is a common 

feature of wildlife laws. (Such laws, 

including the Eagle Act, also directly 

prohibit actions, such as importing or 

shooting at the protected species.) A 

level of uncertainty is inherent in any 

statute that prohibits results, rather than 

actions, as one can never be sure what 

the results of a particular action might 

be. However, to minimize this 

uncertainty as much as possible while 

maintaining consistency with the 

statutory language, in response to the 

comments received we have revised the 

definition to include the phrase ‘‘or is 

likely to cause.’’ Inclusion of this phrase 

will enable people to better predict 

when their actions may violate the Eagle 

Act by disturbing eagles, particularly in 

conjunction with the guidance provided 

by the Guidelines, which publicize our 

recommendations for avoiding 

disturbance. To further reduce 

uncertainty, we have proposed 

regulations, published separately in 

today’s Federal Register, that would 

provide for issuance of permits for take 

of eagles; obtaining such a permit would 

essentially eliminate any remaining 

uncertainty. 

Comment 17: If an eagle returns from 

its wintering grounds to the vicinity of 

its nest at a heavily altered site but 

never returns to the actual nest because 

the landscape has changed very 

drastically, the habitat modification 

might not be a disturbance under the 

proposed definition, but it should be. 

Service response: We do not believe 

that the Eagle Act was meant to prohibit 

habitat modification that is undetected 

by eagles, so if the eagle(s) never return 

to the site at all, the habitat alterations 

should not be per se attributed as the 

cause. However, we do intend that the 

definition still applies to a situation 

where eagles, as part of their normal 

nesting behavior, return to the vicinity 

of the nest, but the habitat alterations 

are so vast in scale that the eagles 

become agitated as a result, alter their 

behavior, and never return to the nest 

itself. 

Comment 18: The extension of the 

proposed definition to ‘‘impacts that 

result from human-induced alterations 

initiated around a previously used nest 

site during a time when eagles are not 

present’’ is unreasonable and places an 

impossible burden on landowners. If 

‘‘nest abandonment’’ remains in the 

definition of disturb, it should be 

defined narrowly to mean ‘‘premature 

abandonment of an active nest during 

the nesting season.’’

Service response: We disagree that the 

prohibition against disturbance should 

exclude impacts to eagles that occur 

after the activity takes place. Such an 

exclusion would mean that an activity 

that causes eagles to abandon a nest 

could qualify as a disturbance if the 

eagles were present, but not if the 

activity was conducted when eagles 

were away from the nest, whether for a 

season or a few hours—even if the 

reaction of (and effect on) the eagles is 

identical in both cases. 

Comment 19: Disturbance should not 

require injury, death, or nest 

abandonment. Too many problems are 

occurring in Alaska because of people 

feeding eagles, and the definition of 

disturb should make the practice illegal 

without requiring such a high threshold. 

Service response: Although the Eagle 

Act does not directly prohibit feeding 

eagles, the final definition protects 

eagles from situations where eagle 

feeding is likely to injure eagles. 

Comment 20: Although stated in the 

preamble, the definition needs to be 

clearer that the death or injury can 

occur to eagles other than those that are 

disturbed (e.g., young or eggs). 

Service response: The wording of the 

final definition more clearly conveys 

that ‘‘disturb’’ incorporates the injury of 

an eagle other than the one that was 

agitated or bothered. 

Comment 21: The definition should 

specifically exclude impacts to nests 

that have not been used for 5 years, to 

mirror the draft Guidelines, which state 

‘‘The likelihood that an alternate nest 

will again become active decreases the 

longer it goes unused. If you plan 

activities in the vicinity of an alternate 

bald eagle nest and have information to 

show that the nest has not been active 

during the preceding 5 nesting seasons, 

the recommendations provided in these 

guidelines for avoiding disturbance 

around the nest site may no longer be 

warranted.’’

Service response: We do not agree that 

the regulatory definition of ‘‘disturb’’ is 

the appropriate vehicle to transmit 

Service recommendations regarding the 

likelihood of eagle nest re-use. Such 

recommendations are more 

appropriately housed under the 

Guidelines, as written. The Service will 

prioritize enforcement efforts under the 

Eagle Act to focus on violations 

committed without adhering to the 

Guidelines. 

Comment 22: Disturb should be 

defined to explicitly exclude any 

impacts resulting from activities 

conducted in accordance with a Stateapproved Bald Eagle Management Plan. 

Service response: We do not believe it 

is appropriate or that the Eagle Act 

affords us the discretion to establish a 

definition that would differ in 

application from State to State. The 

Eagle Act is a Federal statute, and the 

prohibitions it contains have general 

applicability throughout the United 

States. 

Comment 23: A permit for intentional 

take of nests needs to be available. 

Situations arise where the location of 

eagle nests jeopardizes human safety, or 

the eagles themselves. 

Service response: We agree that a 

permit regulation may be warranted to 

authorize removal or relocation of eagle 

nests under limited circumstances. We 

have proposed a regulation, published 

separately in today’s Federal Register, 

to establish a permit process in the near 

future that would include such a 

provision. 

Comment 24: More discussion needs 

to be included as to how the definition 

will affect golden eagle management. 

Service response: Due to different 

geographic preferences, human 

activities are less likely to conflict with 

golden eagles than bald eagles. Because 

fewer activities have the potential to 

disturb golden eagles, the effect of 


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defining ‘‘disturb’’ will be relatively 

small in relation to golden eagles in 

comparison to bald eagles. However, we 

recognize that disturbance caused by 

human activities can still be an issue 

with respect to golden eagles. We intend 

to more fully address golden eagle 

disturbance as part of the National 

Environmental Policy Act assessment of 

the Eagle Act take permit regulations we 

are proposing. 

Comment 25: The Eagle Act was 

meant to protect eagles from significant 

stress that affects their ability to forage, 

nest, roost, breed, or raise young. Any 

activity that causes such stress should 

be considered a violation of the Act. 

Service response: The final definition 

of ‘‘disturb’’ encompasses impacts that, 

based on the best scientific information 

available, are likely to cause injury to an 

eagle, or a decrease in its capacity to 

reproduce. In contrast to the approach 

suggested by the commenter, however, 

the definition provides a measure of 

predictability to the regulated 

community by indicating thresholds 

that can be detected or anticipated by 

the actor or someone trying to enforce 

the law. 

Comment 26: The definition should 

prohibit ‘‘repeated displacement’’ of 

eagles from their nests and roosts. 

Service response: To the degree that 

repeated displacement of eagles from 

their nest is associated with injury or 

nest abandonment, it can be a useful 

indicator of disturbance. However, 

temporary impacts such as ‘‘repeated 

displacement’’ are not relevant unto 

themselves to the preservation of eagles; 

they are relevant only if they produce 

the likelihood of meaningful biological 

effects. 

Comment 27: In the definition of 

‘‘injury’’ the phrase ‘‘pose a discernible 

risk’’ (to an eagle’s survival or 

productivity) should be removed 

because it’s speculative and 

hypothetical. Instead, the definition 

should require that the eagle actually 

dies or doesn’t breed, rather than 

capturing effects that only ‘‘risk’’ such 

an outcome. The ESA definition of 

‘‘harm’’ requires actual injury or death. 

Service response: The ESA definition 

of ‘‘harm’’ does require injury or death, 

but ‘‘harass’’ requires only the 

‘‘likelihood of injury.’’ We see no reason 

to assume that ‘‘disturb’’ would 

resemble ‘‘harm’’ rather than ‘‘harass,’’

and we find limited utility in comparing 

either ESA term to the Eagle Act’s 

prohibition of ‘‘disturb.’’ All three are 

distinct definitions, and ‘‘disturb’’ is 

from a separate statute enacted 33 years 

before the ESA. It is useful to compare 

the ESA terms with ‘‘disturb’’ in order 

to determine certain types of sentence 

construction that may hinder or 

facilitate compliance with and 

enforcement of the statute. Having done 

this comparison, we initially thought 

that the phrase ‘‘pose a discernible risk’’

was helpful in those regards. To require 

that the death or loss of productivity be 

documented could make it difficult to 

enforce the prohibition. The final 

definition of disturb no longer 

incorporates the phrase ‘‘pose a 

discernible risk,’’ but it does include ‘‘or 

is likely to cause,’’ which we believe is 

both readily understandable and will 

help prevent adverse effects to eagles. 

Comment 28: (From numerous airport 

authorities) We are concerned about 

maintaining airport safety in light of the 

risk of air strikes with eagles and the 

prohibition against disturbing them. 

Service response: We appreciate the 

gravity of these concerns. However, we 

see no reasonable definition of disturb 

that would exclude the intentional 

harassment and displacement of eagles 

necessary to remove eagles from the 

vicinity of airports, while adequately 

protecting eagles from many other 

potentially disturbing activities that 

would adversely affect them. Permits 

are already available and routinely 

issued under 50 CFR 22.23 

(Depredation) to intentionally haze 

eagles at airports for purposes of human 

safety. We agree that a permit regulation 

may be warranted to authorize removal 

or relocation of eagle nests under 

circumstances of human health and 

safety such as at airports. We have 

proposed a regulation to establish a 

permit process that includes such a 

provision (published separately in 

today’s Federal Register). 

Comment 29: In light of the Service’s 

April 15, 2003, Migratory Bird Permit 

Memorandum, it would be helpful if the 

Service would clarify whether removal 

of an unoccupied eagle nest would 

constitute a violation of the Migratory 

Bird Treaty Act (MBTA) (16 U.S.C. 703–

712) or the Eagle Act. 

Service response: As explained in the 

memorandum referenced by the 

commenter, it is illegal to collect, 

possess, and by any means transfer 

possession of any nest of a species 

protected by the MBTA, but the MBTA 

does not contain any prohibition that 

applies to the destruction of a bird nest 

alone (without birds or eggs), provided 

that no possession occurs during the 

destruction. Thus, destruction of 

unoccupied nests with no prohibited 

impacts to a migratory bird (or egg) does 

not require a MBTA permit. However, 

the public should be made aware that, 

while destruction of a nest itself is not 

prohibited under the MBTA, nest 

removal that results in the unpermitted 

take of migratory birds or their eggs is 

illegal and fully prosecutable under the 

MBTA. Furthermore, some unoccupied 

nests are legally protected by statutes 

other than the MBTA, including nests of 

bald and golden eagles. The Eagle Act 

protects nests from removal by a 

number of means, including its 

inclusion of the term ‘‘molest’’ as part 

of ‘‘take’’ (16 U.S.C. 668c). Congress 

reaffirmed the Eagle Act’s protection of 

inactive nests when it amended the Act 

in 1978 to direct the Secretary of the 

Interior to make permits available for 

incidental take of inactive golden eagle 

nests for resource development and 

recovery operations. A permit would 

not be necessary if such take were not 

otherwise prohibited by the Act. 

Comment 30: Does the removal of 

large trees occasionally used by roosting 

and perching eagles constitute a 

violation of the Eagle Act? 

Service response: Removal of trees is 

not in itself a violation of the Eagle Act. 

The impacts of such action can be a 

violation, however, if the loss of the 

trees kills an eagle, or agitates or bothers 

a bald or golden eagle to the degree that 

results in injury or interferes with 

breeding, feeding, or sheltering habits 

substantially enough to cause a decrease 

in productivity or nest abandonment, or 

create the likelihood of such outcomes. 

However, if the large trees are only 

occasionally used, the probability of 

such an outcome is lower than if the 

trees were within a traditional 

communal roost site or were the 

primary perch trees used by eagles in an 

important foraging area. 

Comment 31: The definition should 

include protection of traditional nest 

and roost sites during seasons of the 

year when eagles are not present. 

Service response: The Eagle Act does 

not directly protect habitat (except 

nests), but manipulation of important 

eagle use areas, including nests and 

communal roosts, that results in a 

prohibited ‘‘take’’ under the Eagle Act 

would constitute a violation of the Act. 

Therefore, roost sites are accorded 

protection under the definition to the 

degree that their loss would result in 

eagle disturbance. For example, if 

destruction of an important bald eagle 

winter roost site would agitate the 

eagles that roost there and interfere with 

feeding and/or sheltering significantly 

enough to decreasing productivity, then 

the roost destruction could constitute a 

violation. 

Comment 32: The definition should 

include communal roost abandonment 

as explicitly as it addresses nest 

abandonment. The phrase ‘‘nest 

abandonment’’ should be replaced with 


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nest abandonment or communal roost 

abandonment.’’

Service response: While many 

communal roost sites are identified and 

well documented, some may not be. The 

Guidelines define ‘‘communal roost 

sites’’ as ‘‘[a]reas where bald eagles 

gather and perch overnight ‘‘ and 

sometimes during the day in the event 

of inclement weather. Communal roost 

sites are usually in large trees (live or 

dead) that are relatively sheltered from 

wind and are generally in close 

proximity to foraging areas. These roosts 

may also serve a social purpose for pair 

bond formation and communication 

between eagles. Many roost sites are 

used year after year.’’ Although many 

communal roost sites are well known to 

the public, such as at Mason Neck 

Wildlife Refuge in Virginia, a 

satisfactory definition of ‘‘communal 

roost site’’ that would clearly 

distinguish all of the important areas 

upon which eagles depend from all 

other habitat where eagles might 

sometimes gather and roost has not (to 

our knowledge) been put forward by 

eagle biologists, State agencies, or other 

wildlife managers. Further, because of 

the lack of documentation of traditional 

use of all such areas, we believe it 

would be problematic to explicitly 

reference communal roost site 

abandonment in the same manner as 

nest abandonment. 

Comment 33: Long-term habitat 

protection will be critical to continued 

recovery and management of bald eagles 

throughout the nation. The lack of 

regulatory protection for concentration 

areas and foraging habitats will result in 

the degradation of habitats necessary for 

both nesting and non-breeding eagles. 

Protection of nest sites will not be 

enough to sustain eagle populations, 

which rely on a matrix of habitats to 

meet their life-cycle requirements. The 

definition of ‘‘injury’’ should be 

broadened to specifically include 

disturbance to essential habitats as 

under the definition of ‘‘harm’’ in the 

ESA. 

Service response: Habitat 

manipulation can amount to a violation 

of the ESA if it ‘‘harms’’ a protected 

species, meaning injures or kills it (by 

impacting essential behavior patterns). 

Although there is no specific reference 

to habitat in the definition of ‘‘disturb,’’

habitat degradation can also cause a 

prohibited disturbance under the Eagle 

Act, and not just around nest sites, to 

the extent the activity results in injury, 

decreased productivity, or nest 

abandonment. 

Comment 34: The phrase ‘‘agitate or 

bother’’ should be removed since the 

Eagle Act’s intent is to prevent physical 

harm of eagles. The terms could be 

interpreted to include non-physical 

harms. 

Service response: In order for 

disturbance to occur, the agitation or 

bother must lead to injury, or 

substantially interfere with breeding, 

feeding, or sheltering to the degree that 

causes, or is likely to cause, decreased 

productivity or nest abandonment. Each 

of these outcomes is a physical harm. 

Without the phrase ‘‘agitate or bother,’’

the definition would no longer require 

a direct effect on one or more eagles. 

This would broaden the definition’s 

applicability. For example, excessive 

agricultural runoff might then be said to 

‘‘disturb’’ eagles since it might interfere 

with breeding, feeding, or sheltering, 

and cause decreased productivity. We 

do not believe such a broad application 

was intended by Congress when it 

included the term ‘‘disturb’’ in the 

definition of take in the Eagle Act. 

The word ‘‘directly’’ should be added 

to the definition before ‘‘causes’’ in 

order to meet the ‘‘knowingly’’ standard 

of the Eagle Act. 

Service response: Adding ‘‘directly’’

would not affect whether the act was 

committed knowingly, since the 

potential outcome (loss of productivity, 

death, or nest abandonment) is still a 

result of the action, whether direct or 

not. Whether the actor sees the result is 

immaterial to whether he knew at the 

time he acted that his conduct would 

probably result in disturbance. The 

latter is at issue in the Eagle Act. (The 

Eagle Act’s standard that an act be 

committed ‘‘knowingly or with wanton 

disregard’’ only applies to criminal 

violations. Civil violations do not 

require this standard.) Additionally, we 

specifically do not intend disturbance to 

be limited to situations where the 

outcome is immediately evident. The 

Eagle Act makes no distinction between 

immediate or direct effects to eagles and 

those that can reasonably be foreseen, as 

evidenced by its prohibition of eagle 

poisoning, and our enforcement of cases 

where the poisoning was secondary but 

foreseeable. The Guidelines, and our 

staff, are available to the public to assist 

in determinations of what activities are 

likely to result in a violation of the Eagle 

Act. 

Comment 36: Unlike bald eagles, 

golden eagles are not on the Federal List 

of Endangered and Threatened Wildlife. 

Therefore, there is no need to buttress 

Eagle Act protections for golden eagles 

to compensate for bald eagle delisting 

pursuant to the ESA. 

Service response: The Eagle Act 

equally protects both species of eagles 

from disturbance. The statute treats 

golden eagles somewhat differently than 

bald eagles in that it provides broader 

authority to permit certain otherwise 

prohibited activities in relation to 

golden eagles (16 U.S.C. 668a). 

However, the prohibition against 

disturbance applies in the same way to 

both species under the Act (16 U.S.C. 

668(a) and (b)). 

Comment 37: Under the ESA, permits 

were available for incidental take of 

bald eagles. Many project proponents 

who have relied on such authorizations 

will be put in an untenable position if 

the Service issues a final delisting 

decision before incidental take 

regulations are in place. 

Service response: We recognize the 

difficult position in which many 

developers, transportation officials, and 

others will find themselves (without a 

means to authorize take of bald eagles) 

if the bald eagle is delisted before the 

time that regulations for a take permit 

are finalized. The Service intends to 

place a high priority on completing the 

rulemaking that would establish a 

permit program authorizing ‘‘take’’ of 

eagles, as appropriate, while 

maintaining the statute’s requirement of 

protection and conservation of bald and 

golden eagles. In the interim, the 

Service will use the Guidelines and 

provide technical assistance to the 

public to minimize the ‘‘take’’ of eagles. 

As a result of the court-ordered 

deadline, the Service is required to issue 

a final decision on the delisting by June 

29, 2007 (extended from February 16, 

2007), which does not allow enough 

time to promulgate a final rule for a 

permit program before a decision on 

delisting is due. See Contoski v. 

Scarlett, Civil No. 05–2528 (JRT–RLE) 

(D. Minn. August 10, 2007). 

Required Determinations 

Energy Supply, Distribution or Use 

(E.O. 13211). Executive Order 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. Because the definition 

promulgated herein is similar to the 

current working interpretation of 

‘‘disturb,’’ 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). This rule is a significant 

regulatory action subject to review by 

the Office of Management and Budget 

(OMB). OMB makes the final 

determination of significance under 

Executive Order 12866. 

a. The Service does not anticipate that 

this rule will have an effect of $100 

million or more on the economy. This 


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rule defines an existing statutory term in 

a manner largely consistent with how it 

is currently interpreted by State and 

Federal agencies. 

b. This rule will 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 or golden eagle take. 

Although some other Federal agencies 

regulate activities that impact wildlife 

(including eagles) and such impacts 

may constitute take, the definition of 

‘‘disturb’’ promulgated by this rule is 

similar to existing operative 

interpretations of the term. 

c. This rule does 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 or golden eagle take. 

d. This rule may raise novel legal or 

policy issues. 

Regulatory Flexibility Act. The 

Department of the Interior certifies that 

this document will not have a 

significant economic effect on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA), 5 U.S.C. 804(2). 

Description of Small Entities Affected 

by the Rule. This rule applies to any 

individual, government entity, or 

business entity that undertakes or 

wishes to undertake any activity that 

may disturb bald or golden eagles. It is 

not possible to define precisely or 

enumerate these entities because of 

uncertainty concerning their plans for 

future actions and incomplete scientific 

knowledge of which activities in 

specific cases will disturb bald or 

golden eagles. Small entities that are 

most likely to engage in activities that 

may disturb bald or golden eagles 

include: Small businesses that are 

engaged in construction of residential, 

industrial, and commercial 

developments; farms; small timber 

companies; small mining operations; 

and small governments and small 

organizations engaged in construction of 

utilities, recreational areas, and other 

facilities. These may include tribal 

governments, town and community 

governments, water districts, irrigation 

districts, ports, parks and recreation 

districts, and others. 

Expected Impact on Small Entities. 

The rule defines the term ‘‘disturb,’’

which is contained in the definition of 

‘‘take’’ in the Eagle Act. Thus, 

‘‘disturbance’’ is already prohibited 

under the law. This rule promulgates a 

definition that is consistent with the 

Service’s former interpretation of 

‘‘disturb’’ for bald eagle management 

under the Eagle Act, and thus does not 

further restrict human activity. This 

codification of the Service’s definition 

of ‘‘disturb’’ does not impose any new 

reporting, recordkeeping, or other 

compliance costs on any small entities. 

Promulgation of the rule and the 

accompanying Guidelines provides 

clear guidance to all parties that engage 

in activities that could potentially 

disturb eagles. Promulgation of the rule 

and Guidelines may decrease the costs 

of complying with the Eagle Act by 

reducing uncertainty and enhancing 

resolution of potential conflicts between 

human activities and eagles. The 

decreased costs are expected to be 

minimal. Therefore, this rule will not 

have a significant effect on small 

entities. 

Unfunded Mandates Reform Act. In 

accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1531 et 

seq.): 

a. This rule will not ‘‘significantly or 

uniquely’’ affect small governments. A 

Small Government Agency Plan is not 

required. This rulemaking will not 

impose a cost of $100 million or more 

in any given year on local or State 

government or private entities. 

b. This rule will not produce a 

Federal mandate of $100 million or 

greater in any year; i.e., it is not a 

‘‘significant regulatory action’’ under 

the Unfunded Mandates Reform Act. 

Revisions to State regulations are not 

required; codifying the definition of 

‘‘disturb’’ under the Eagle Act does not 

require any future action by State or 

local governments. 

Takings (E.O. 12630). In accordance 

with Executive Order 12630, the rule 

does not have significant takings 

implications. This is an interpretive 

rule, defining the statutory term 

‘‘disturb’’ under the Eagle Act. The rule 

promulgates a definition of ‘‘disturb’’

that is consistent with working 

definitions currently applied to private 

property, and will be used in 

conjunction with Guidelines that 

provide greater flexibility than existing 

guidelines used by the Service to advise 

landowners of how to minimize 

disturbance to eagles. A takings 

implication assessment is not required. 

Federalism (E.O. 13132). In 

accordance with Executive Order 13132, 

the rule does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

This rule will not interfere with States’

ability to manage themselves or their 

funds. Defining a term within the 

prohibitions of the Eagle Act will not 

result in significant economic impacts 

because this definition is consistent 

with the meaning of the term as 

currently interpreted by the Service and 

the States. 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 will not interfere with 

Tribes’ ability to manage themselves or 

their funds. 

Paperwork Reduction Act. This rule 

does not contain information collection 

requirements. An agency may not 

conduct or sponsor and a person is not 

required to respond to a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act. 

The Service has prepared an 

environmental assessment of this action, 

pursuant to the National Environmental 

Policy Act of 1969, as amended (42 

U.S.C. 4321 et seq.). The Notice of 

Availability for the final environmental 

assessment is published elsewhere in 

today’s Federal Register. 

List of Subjects in 50 CFR Part 22 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation, Wildlife. 

■ For the reasons described in the 

preamble, we amend subchapter B of 

chapter I, title 50 of the Code of Federal 

Regulations, as set forth below: 

PART 22—EAGLE PERMITS 

■ 1. The authority citation for part 22 

continues to read as follows: 

Authority: 16 U.S.C. 668a; 16 U.S.C. 703–

712; 16 U.S.C. 1531–1544. 

■ 2. Section 22.3 is amended by revising 

the heading and introductory paragraph 

and adding the definition for ‘‘disturb’’

in alphabetical order to read as follows: 


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§ 22.3 Definitions. 

In addition to definitions contained in 

part 10 of this subchapter, the following 

definitions apply within this part 22: 

* * * * * 

Disturb means 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. 

* * * * * 

Dated: May 23, 2007. 

Todd Willens, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 07–2694 Filed 6–4–07; 8:45 am] 

BILLING CODE 4310–55–P 


jlentini on PROD1PC65 with RULES2