[Federal Register Volume 77, Number 72 (Friday, April 13, 2012)]
[Proposed Rules]
[Pages 22267-22278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8086]



[[Page 22267]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Parts 13 and 22

[Docket No. FWS-R9-MB-2011-0054: FF09M21200-123-FXMB123209EAGL0L2]
RIN 1018-AX91


Eagle Permits; Changes in the Regulations Governing Eagle 
Permitting

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: We propose to revise the regulations for permits for 
nonpurposeful take of golden eagles (Aquila chrysaetos) and bald eagles 
(Haliaeetus leucocephalus) where the take is associated with, but not 
the purpose of, an activity. We propose to extend the maximum term for 
programmatic permits to 30 years. The permits must incorporate 
conditions specifying additional measures that may be necessary to 
ensure the preservation of eagles, should monitoring data indicate the 
need for the measures. This change will facilitate the responsible 
development of renewable energy and other projects designed to operate 
for many decades, while continuing to protect eagles consistent with 
statutory mandates. For a permit valid for 5 years or more, we propose 
to charge an application processing fee sufficient to offset the 
estimated costs associated with working with the applicants to develop 
site plans and conservation measures, and prepare applications, and for 
us to review applications. For any project that is deemed likely to 
take eagles, we also propose to collect an additional administration 
fee when we grant a permit. The proposed change does not affect the 
tenure of any other migratory bird or eagle permit type.

DATES: Electronic comments on this proposal via http://www.regulations.gov must be submitted by 11:59 p.m. Eastern time on May 
14, 2012. Comments submitted by mail must be postmarked no later than 
May 14, 2012.

ADDRESSES: You may submit comments by either of the following two 
methods. Please do not submit comments by both.
    <bullet> Federal eRulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-R9-
MB-2011-0054.
    <bullet> U.S. mail or hand delivery: Public Comments Processing, 
Attention: FWS-R9-MB-2011-0054; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, 
MS 2042-PDM; Arlington, VA 22203-1610.
    We will not accept email or faxes. We will post all comments on 
http://www.regulations.gov. This generally means that we will post any 
personal information that you provide. See the Public Comments section 
below for more information.
    Submit comments on the information collection requirements to the 
Desk Officer for the Department of the Interior at Office of Management 
and Budget (OMB-OIRA) at (202) 395-5806 (fax) or <a href="/cdn-cgi/l/email-protection#4906001b08160d060a020c1d0906040b672c2639672e263f"><span class="__cf_email__" data-cfemail="307f7962716f747f737b7564707f7d721e555f401e575f46">[email protected]</span></a> (email). Please provide a copy of your comments to 
the Service Information Collection Clearance Officer, U.S. Fish and 
Wildlife Service, MS 2042-PDM, 4401 North Fairfax Drive, Arlington, VA 
22203 (mail), or <a href="/cdn-cgi/l/email-protection#cb82858d848884878badbcb8e5aca4bd"><span class="__cf_email__" data-cfemail="357c7b737a767a79755342461b525a43">[email protected]</span></a> (email).

FOR FURTHER INFORMATION CONTACT: Chief, Division of Migratory Bird 
Management, at 703-358-1714.

SUPPLEMENTARY INFORMATION:

Background

    The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) 
(Eagle Act) prohibits take of bald eagles and golden eagles except 
pursuant to Federal regulations. The Eagle Act regulations at title 50, 
part 22 of the Code of Federal Regulations (CFR), define the ``take'' 
of an eagle to include the following broad range of actions: ``pursue, 
shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, 
molest, or disturb'' (Sec.  22.3). The Eagle Act allows the Secretary 
of the Interior to authorize certain otherwise prohibited activities 
through regulations. The Secretary is authorized to prescribe 
regulations permitting the ``taking, possession, and transportation of 
[bald eagles or golden eagles] * * * for the scientific or exhibition 
purposes of public museums, scientific societies, and zoological parks, 
or for the religious purposes of Indian tribes, or * * * for the 
protection of wildlife or of agricultural or other interests in any 
particular locality,'' provided such permits are ``compatible with the 
preservation of the bald eagle or the golden eagle'' (16 U.S.C. 668a). 
Both as a matter of statutory interpretation and as a matter of policy 
discretion, the Secretary applies the foregoing compatibility standard 
to all types of permits issued under the Eagle Act.
    On September 11, 2009, we published a final rule that established 
new permit regulations under the Eagle Act for nonpurposeful take of 
eagles (74 FR 46836). Those regulations at 50 CFR 22.26 provide for 
permits to take bald eagles and golden eagles, where the taking is 
associated with, but not the purpose of, an activity. The regulations 
provide for both standard permits, which authorize individual instances 
of take that cannot practicably be avoided, and programmatic permits, 
which authorize recurring take that is unavoidable even after 
implementation of advanced conservation practices. We have issued 
standard permits for commercial and residential construction, 
transportation projects, maintenance of utility lines and dams, and in 
a variety of other circumstances where take is expected to occur in a 
limited timeframe, such as during clearing and construction.
    ``Programmatic take'' of eagles is defined at 50 CFR 22.3 as ``take 
that is recurring, is not caused solely by indirect effects, and that 
occurs over the long term or in a location or locations that cannot be 
specifically identified.'' Take that does not reoccur, or that is 
caused solely by indirect effects such as short-term construction, does 
not require a programmatic permit. For additional explanation of 
programmatic take and programmatic permits, see 74 FR 46841-46843.
    We can issue programmatic permits for disturbance as well as take 
resulting in mortalities, based on implementation of ``advanced 
conservation practices'' developed in coordination with the Service. 
``Advanced conservation practices'' are defined at 50 CFR 22.3 as 
``scientifically supportable measures approved by the Service that 
represent the best available techniques to reduce eagle disturbance and 
ongoing mortalities to a level where remaining take is unavoidable.'' 
Most take authorized under Sec.  22.26 has been in the form of 
disturbance; however, permits may authorize lethal take that is 
incidental to an otherwise lawful activity, such as mortalities caused 
by collisions with rotating wind turbines.

Permit Duration and Transferability

    In February 2011, we published draft Eagle Conservation Plan 
Guidance that provided information on how to prepare Eagle Conservation 
Plans and apply for eagle take permits. Many commenters recommended 
that we extend the term of the permit, as we are proposing to do with 
this rule. Since publication of the 2009 final rule, we have reviewed 
applications from proponents of renewable energy projects, such as wind 
and solar power facilities, for programmatic permits to authorize eagle 
take that may result from both the construction and ongoing operations 
of renewable energy projects. During our

[[Page 22268]]

review, it became evident that the 5-year term limit imposed by the 
2009 regulations (see 50 CFR 22.26(h)) needed to be extended to better 
correspond to the timeframe of renewable energy projects. We propose to 
amend the regulations to provide for terms of up to 30 years for 
programmatic permits. The maximum permit tenure for standard Sec.  
22.26 permits would remain at 5 years.
    The extended tenure permit would be only for programmatic permits 
issued under 50 CFR 22.26 for nonpurposeful take of eagles. Permits for 
take of eagle nests (Sec.  22.27 and Sec.  22.25), including 
programmatic nest take permits, such as we may issue to airports, would 
not be affected by any provisions proposed in this rule. Permits for 
collection and possession of eagles and eagle parts for scientific 
purposes (Sec.  22.21), exhibition (Sec.  22.21), Native American 
religious use (Sec.  22.22), depredation/health and safety (Sec.  
22.23), and falconry (Sec.  21.29) also would be unaffected by this 
proposed rule.
    Current regulations specify that the duration of programmatic 
permits is to be based, among other things, on ``the nature and extent 
of mitigation measures incorporated into the terms and conditions of 
the permit.'' In light of the much longer permit durations that would 
be possible under the proposed regulations, we intend to incorporate 
into the terms and conditions of the permit a commitment from the 
applicant to implement additional specified mitigation measures that 
would be triggered if the level of take anticipated is exceeded or if 
new scientific information demonstrates that the additional mitigation 
measures are necessary for the preservation of eagles. These additional 
specified mitigation measures could be described in detail in the 
permit so as to reduce uncertainty with respect to costs. It seems 
prudent to describe ``up front'' in the permit the consequences and 
expectations from the applicant of unexpected take or new information 
about eagle populations affected by the activity, as well as to 
describe the specific additional mitigation measures that may be 
required. However, if such conditions prove inadequate to meet the 
Eagle Act's preservation standard, the regulations at Sec.  22.26(c)(7) 
allow the Service to further amend programmatic permits if necessary to 
safeguard eagle populations. The last option would be permit revocation 
if the activity is not compatible with the preservation of the eagle. 
Potential additional mitigation measures identified as permit 
conditions would reduce the likelihood of amendments to the permit or 
revocation.
    The current regulations require advanced conservation practices to 
avoid and minimize take of eagles to the maximum degree. Additional 
conservation measures that may be implemented during the life of a 
project for the proposed longer-term permit would be designed to 
achieve the intended (but not fully achieved) objectives of the 
original mitigation measures. The additional conservation measures may 
also include additional compensatory mitigation to mitigate to the 
level of authorized take, or, if necessary for the preservation of 
eagles, below the originally authorized take levels, for example if, 
during the 30-year permit tenure, new information indicates unexpected 
declines in eagle populations that warrant restricting take.
    We seek public comment on how this approach could be implemented in 
a way that is not unduly burdensome, in light of the fact that, under 
the 2009 final rule, programmatic permits are to be issued where take 
is necessary, and FWS ``interpret[s] `necessary' as something that 
cannot practicably be avoided.'' See Eagle Permits; Take Necessary To 
Protect Interests in Particular Localities; Final Rules, (74 FR 46836-
46852, September 11, 2009).
    Monitoring and reporting by the permittee will be critically 
important for assessing impacts to eagles. For example, we have 
relatively little information on the impacts of wind energy on eagles. 
The impacts could be due to turbine design or operation, location of a 
facility or even a single turbine, weather conditions, or other 
factors. In addition to ensuring that the effects of the permitted 
activity are compatible with the preservation of eagles, monitoring 
data will be critical for assessing the impacts of proposed facilities, 
small or large, in the future.
    Current regulations also allow Service personnel to access the site 
where take is permitted for purposes of monitoring (see Sec.  
22.26(c)(4)). Some of the cost of the proposed increased application 
processing fees is to recoup Service costs for conducting periodic 
evaluations of the site to ascertain whether take from the permitted 
activity does not exceed what was anticipated and also whether the 
conservation measures being implemented are both necessary and 
sufficient.

Right of Succession and Transferability of Permits

    We are also proposing changes to regulations at 50 CFR 13.24 (Right 
of succession by certain persons) and 13.25 (Transfer of permits and 
scope of permit authorization) to allow a programmatic permit to be 
transferable to the new owner of a project, and to ensure that any 
successors to the permittee commit to carrying out the conditions of 
the permit. We recognize that a succession of owners may purchase or 
resell the affected company or land during the term of the permit. We 
will negotiate such permits if successive owners agree to the terms of 
the permit.
    Regulations at 50 CFR 13.24 and 13.25 impose restrictions on the 
right of succession and transferability of Service permits. These 
restrictions are appropriate for most wildlife permitting situations, 
but they are impractical and unduly restrictive for situations in which 
the permitted activity will be conducted over a lengthy period of years 
and ownership of the land or facility covered by a permit could 
reasonably be expected to change over that period.
    For that reason, existing regulations carve out an exception from 
the usual restrictions on succession and transferability for certain 
Endangered Species Act (ESA) permits that typically have these 
characteristics. Specifically, 50 CFR 13.25(b) allows certain permits 
issued under the ESA to be transferred in whole or in part through a 
joint submission by the permittee and proposed transferee, subject to 
certain determinations that we must make. This proposed rule would 
treat Eagle Act programmatic permits issued pursuant to 50 CFR 22.26 in 
the same way that ESA incidental take permits issued pursuant to 50 CFR 
17.22(b) and 17.32(b) are currently treated. Thus, in the event of a 
sale of a permitted facility to a new owner, the permit could be 
transferred through the mechanism set forth in 50 CFR 13.25(b) without 
the need to issue a new permit. Similarly, the holder of a permit 
authorizing multiple new facilities in a given area could transfer that 
permit in part to the new owner of a particular qualifying facility 
through the mechanism set forth in 50 CFR 13.25(b).
    An analogous second proposed change to 50 CFR 13.25 would provide 
similar treatment for Eagle Act programmatic permits issued to State or 
local governmental entities as is currently provided for ESA permits 
issued to such governmental entities. Under proposed new paragraph (f) 
of 50 CFR 13.25, a person would be considered to be under the direct 
control of an Eagle Act programmatic permittee (and, therefore, 
authorized to carry out the activity contemplated by the permit) if the 
person is under the

[[Page 22269]]

jurisdiction of the permittee, and if the permit allows the person to 
carry out the authorized activity.
    Currently, 50 CFR 13.24 allows for certain persons to be successors 
to a permit: The surviving spouse, child, executor, administrator, or 
other legal representative of a deceased permittee; or a receiver or 
trustee in bankruptcy or a court-designated assignee for the benefit of 
creditors. For most Service permits, with the exception of certain 
long-term permits issued under ESA regulations, all the potential 
successor needs to do to gain the privileges of the permit is to 
``furnish the permit for endorsement'' to the permit office within 90 
days from the date the successor begins to carry out the permitted 
activity. We are proposing that long-term Eagle Act permits be subject 
to the same additional provisions that currently apply to long-term ESA 
permits. The permit would be subject to our determination that: the 
successor meets all of the qualifications under this part for holding a 
permit; has provided adequate written assurances that it will provide 
sufficient funding for any applicable conservation plan or agreement 
and will implement the relevant terms and conditions of the permit, 
including any outstanding minimization and mitigation requirements; and 
has provided other information we determine is needed for processing 
the request.
    The proposed revisions to 50 CFR 13.25(b) would also allow for 
transfer of ESA permits issued for Safe Harbor Agreements per 50 CFR 
17.22(c) or 17.32(c) and Candidate Conservation Agreements with 
Assurances per 50 CFR 17.22(d) or 17.32(d). The existing regulation 
limits such transfer only to permits issued under 50 CFR 17.22(b) but 
that limitation was an oversight that the Service now proposes to 
correct.
    Existing paragraph 13.25(d) provides that ``any person who is under 
the direct control of the permittee'' is covered by the authorization 
in the permit. This general provision applies to all wildlife and 
plants permits issued by the Service, including eagle permits. See 50 
CFR 13.3. We are also proposing to add a new paragraph 13.25(f) to 
clarify when a person is considered to be under the direct control of a 
government agency that receives a non-purposeful eagle take permit and 
therefore is covered by the take authorization in the permit. Under new 
paragraph 13.25(f) the authorization under the permit issued to the 
government agency extends to any person who is under the jurisdiction 
of the permittee, provided the permittee has the regulatory authority 
to require the person to comply with the terms and conditions of the 
permit and the permit provides that such person(s) may carry out the 
authorized activity. The Service's position is that this clarifying 
language describes the current situation that applies to any Service 
wildlife or plant permit issued to a government agency for an activity 
regulated by the agency, but we are proposing to add this specific 
provision to ensure there is no ambiguity with regard to non-purposeful 
eagle take permits issued under paragraph 22.26.

Permit Application Processing Fee and Administration Fee

    This proposed rule also would amend the schedule of permit 
application processing fees set forth at 50 CFR 13.11 by substantially 
increasing the fees to be charged for processing applications for 
programmatic permits for nonpurposeful take of bald or golden eagles. 
However, Federal, State, tribal, and other governmental agencies are 
exempt from the requirement to pay permit application processing fees 
for any permits issued by the Service (see 50 CFR 13.11(d)(3)(i)). This 
proposed rule would not change that exemption.
    Current regulations set the permit application fee for eagle 
nonpurposeful take permits for private individual and entities at $500 
for standard permits and $1,000 for programmatic permits. The renewal 
fees are $150 and $500, respectively. Experience to date has 
demonstrated that these fee amounts are significantly less than the 
actual cost to the Service of reviewing and processing programmatic 
permit applications, including providing technical assistance, as well 
as the anticipated costs of administering the permits. This would 
particularly be the case for programmatic permits that authorize the 
taking of eagles over a decade or more.
    Executive Branch agencies have been directed to recover costs for 
providing special benefits to identifiable recipients (http://www.whitehouse.gov/omb/circulars_a025). The Service must recover the 
costs for working with applicants, assessing permit applications, and 
undertaking monitoring associated with each permit. Many of these costs 
are borne by the Service prior to receiving the permit application. The 
proposed increased application processing fee reflects the estimated 
cost to the Service of developing and monitoring the effectiveness of 
the terms and conditions of the permit.
    Most of the costs to the Service will occur during the development 
and initiation of projects. The application processing fee we are 
proposing combines both the costs of working with the applicant prior 
to submitting a permit application and processing the application. We 
estimate that cost to be approximately $36,000, and accordingly are 
proposing a permit application processing fee for a programmatic permit 
of $36,000. Not all permit applications will be approved, and, as with 
other permits issued by the Service, the application processing fee 
will not be refunded once an application is processed (see 50 CFR 
13.11(d)(i)).
    We also propose to collect permit administration fees based on the 
duration of the permits to recover the Service costs for monitoring and 
working with the permittees over the lives of the permits (items 11 and 
12 in Table 1). We estimate those costs to be approximately $2,600 for 
each 5 years that the permit is valid. Therefore our proposed 
administration fees range from $2,600 for permits with tenures of 5 
years or less to $15,600 for 30-year permits. We propose to collect the 
entire permit administration fee when we issue a permit.
    The Service typically assesses a fee for processing substantive 
amendments to permits during the tenure of the permit. For all 
programmatic permits, regardless of duration, the amendment processing 
fee is proposed to be $1,000, and the fee for processing the transfer 
of a programmatic permit is proposed to be $1,000.
    For some ongoing activities, such as the operation of some types of 
infrastructure, there is a likelihood that one or more eagles will be 
taken during the lifetime of the operation, but the overall impact to 
eagles is expected to be small. The smaller impact may correlate with 
the size of the project, but project scale may not be as important as 
where the project is sited in relation to eagle use-areas, including 
migration corridors. In evaluating which projects are ``small-impact,'' 
information about eagle use of the area will be a key factor in 
determining whether a project has a reduced likelihood of taking 
eagles. We strongly encourage wind energy developers and other project 
proponents to avoid known eagle-use areas when siting their projects.
    If there will be no impact, a permit is not necessary or 
appropriate. However, if any take will occur, a permit is necessary to 
avoid violating the Eagle Act and developers and operators of ``small-
impact'' projects may wish to seek the coverage provided by a 
programmatic permit to cover non-purposeful eagle take for up to 30 
years. The proposed application processing fee for such programmatic, 
small-impact projects such as some small wind

[[Page 22270]]

projects and other activities expected to have low levels of take is 
$5,000 and there would be no administration fee for these permits. We 
are proposing a $1,000 fee for amending small-impact programmatic 
permits. Table 1 is a comparison between the current fee structure and 
the proposed fee structure for Sec.  22.26 permits.

                                         Table 1--Proposed Application Costs, Amendment Fees, and Transfer Fees
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Current fees                                            Proposed fees
                                        ----------------------------------------------------------------------------------------------------------------
                                                          Additional                                              Additional
                                           Application     cost for    Amendment     Transfer     Application      costs for     Amendment     Transfer
                                              cost         every 5        fee          fee           cost        every 5 years      fee          fee
                                                           years *                                                     *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Standard...............................          $1,000           NA         $500           NA            $500              NA       $1,000       $1,000
Programmatic...........................           1,000           NA          500           NA          36,000          $2,600        1,000        1,000
Small-Impact Programmatic..............           1,000           NA          500           NA           5,000               0        1,000        1,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Administration fee

    Table 2 shows the proposed application and administration fees for 
the programmatic permits of different tenures.

               Table 2--Proposed Programmatic Permit Fees
------------------------------------------------------------------------
                                         Application     Administration
            Permit tenure              processing fee          fee
------------------------------------------------------------------------
Up to 5 years.......................           $36,000            $2,600
Over 5 years to 10 years............            36,000             5,200
Over 10 years to 15 years...........            36,000             7,800
Over 15 years to 20 years...........            36,000            10,400
Over 20 years to 25 years...........            36,000            13,000
Over 25 years to 30 years...........            36,000            15,600
Small-Impact, 5 to 30 years.........             5,000                NA
------------------------------------------------------------------------

Economic Analysis

    This rule will provide for the authorization of activities that 
take bald eagles and golden eagles under the Bald and Golden Eagle 
Protection Act (Eagle Act). Under the rule, the public will have the 
opportunity to apply for permits to authorize the take of bald eagles 
and golden eagles under the Eagle Act. This proposed rule amends the 
Eagle Act to provide terms of up to 30 years for programmatic permits. 
Currently, permits are available for only up to five years, which does 
not allow some applicants enough time to secure the funding, lease 
agreements, and other necessary assurances to move forward with longer-
term projects.
    In the 2009 final rule, the Service estimated that we would receive 
approximately 40 programmatic permit applications each year of which 
one-half would be by private applicants (Federal, State, local, and 
tribal applicants are not required to pay a permit applicant fee). The 
annual programmatic fee cost was estimated to be $24,000 (74 FR 46849). 
This was calculated at the sum of the total number of new applicants 
(20) times the application fee ($1,000) plus the number of annual 
amendments (8) times the amendment fee ($500).
    Because industry has indicated that it desires a longer permit, the 
Service is proposing to expand the program to include a variety of 
permits based on a five-year interval. Permits will be made available 
for 5 years minimum through 30 years maximum. The application cost 
associated with this permit for the private sector is proposed to be 
$36,000. Applicants with small-impact projects may choose to apply for 
a small impact permit for a fee of $5,000. Upon issuance of a permit, 
the Service would charge a permit administration fee of $2,600 for 
every 5-year interval. This fee however, only applies to the 
programmatic permits and does not apply to the small-impact permit.
    The fee to amend programmatic permits is being proposed to increase 
from $500 to $1,000. These fees are being proposed so that the Service 
can better recoup their own costs for reviewing and processing these 
permits. Table 3 presents a breakdown of permit fees by permit tenure.

                          Table 3--Proposed New Fees for Eagle Incidental Take Permits
----------------------------------------------------------------------------------------------------------------
                                                                  Application    Administration
                         Permit tenure                          processing fee         fee             Total
----------------------------------------------------------------------------------------------------------------
5 years.......................................................         $36,000            $2,600         $38,600
5-10 years....................................................          36,000             5,200          41,200
11-15 years...................................................          36,000             7,800          43,800
16-20 years...................................................          36,000            10,400          46,400
21-25 years...................................................          36,000            13,000          49,000
26-30 years...................................................          36,000            15,600          51,600
Small Impact..................................................           5,000  ................           5,000
----------------------------------------------------------------------------------------------------------------


[[Page 22271]]

    Table 4 shows the estimated burden and cost to the government to 
provide technical assistance to project proponents, process an eagle 
nonpurposeful take permit application, as well as monitor the project 
over the life of the permit.

Table 4--Anticipated Hours Spent Processing a Long-Term Programmatic Permit Over the Life of the 30-Year Permit.
                              Hours for Tasks 11 and 12 Depend on Permit Tenure \1\
----------------------------------------------------------------------------------------------------------------
                                                                         Grade level and hours
       Task No.            Service biologist and     -----------------------------------------------------------
                               examiner task             GS 9        GS 11       GS 12       GS 13       GS 14
----------------------------------------------------------------------------------------------------------------
1....................  Participate in preapplication  ..........       12          12          10     ..........
                        communication with a
                        potential applicant.
2....................  Participate in preapplication  ..........       10          20          10     ..........
                        technical assistance with a
                        potential applicant.
3....................  Coordinate regionally and      ..........       25          25     ..........  ..........
                        nationally on permit
                        preapplication/permit
                        application.
4....................  Review and determine the       ..........       12          12           1     ..........
                        adequacy of the information
                        an applicant provides.
5....................  Conduct any internal research  ..........       12           2           1     ..........
                        necessary to verify
                        information in the
                        application or evaluate the
                        biological impact of the
                        proposed activity.
6....................  Coordinate internally,         ..........       20           2           4           2
                        regionally on application
                        (tribal, SHPO, biological,
                        etc).
7....................  Evaluate whether the proposed  ..........        8           4     ..........  ..........
                        activity meets the issuance
                        criteria.
8....................  Prepare or review NEPA         ..........       80          80          80     ..........
                        documentation.
9....................  Prepare either a permit or a   ..........       12           4     ..........  ..........
                        denial letter for the
                        applicant.
10...................  When necessary to evaluate     ..........       16          16           3     ..........
                        the impact of the proposed
                        activity, visit the location
                        to examine site-specific
                        conditions.
11...................  Monitor reports over 30 years  ..........       60          40          40     ..........
12...................  Evaluate project impacts for        12          20          20          20           4
                        adaptive management,
                        including coordination with
                        permittee if minimization or
                        mitigation measures are not
                        adequate.
                                                     -----------------------------------------------------------
                       Total hours..................       12         287         237         169           6
                       Cost per hour (Step 5 x 1.5 x      $50.92      $61.61      $73.85      $87.82     $103.78
                        1.25) \2\.
                       Total cost per grade level...     $611     $17,682     $17,502     $14,841        $623
                                                     -----------------------------------------------------------
                       Total Cost per Permit........                            $51,259
----------------------------------------------------------------------------------------------------------------
\1\ Labor cost based on 2012 hourly locality rates for Portland-Vancouver-Beaverton, OR-WA (http://www.opm.gov/oca/12tables/html/por_h.asp).
\2\ 1.5 for employee benefits and other Government costs; 1.25 for overhead for Service Field Offices.

Lower-Bound Estimate

    For the purposes of this analysis the Service has estimated both a 
lower-bound and upper-bound economic impact scenario. Under the lower-
bound scenario, the Service estimates that over the next 30 years it 
will process 1,043 permit applications. Permit applications will begin 
modestly in this year and quickly rise to an average of 40 per year 
beginning in the year 2020. Table 5 shows specifically how many permits 
each year, by type, the Service expects. In addition, the Service 
expects that they will have to process on average one amendment per 
year beginning in 2013.

                                   Table 5--Estimated Permit Applications by Tenure (2012-2041)--Lower-Bound Estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                 30 yr
                                              2012       2013       2014       2015       2016       2017       2018       2019    2020-2041*    total
--------------------------------------------------------------------------------------------------------------------------------------------------------
5-year...................................          0          0          0          0          0          0          0          0           0  .........
10-year..................................          1          1          1          2          2          2          3          3           3         81
15-year..................................          0          1          1          2          2          2          4          4           4        104
20-year..................................          0          1          2          3          4          5          5          5           6        157
25-year..................................          0          0          0          0          0          0          0          0           0  .........
30-year..................................          2          2          4          6         10         12         20         21          22        561
Small-impact.............................          1          2          3          4          5          5          5          5           5        140
                                          --------------------------------------------------------------------------------------------------------------
    Total................................          4          7         11         17         23         26         37         38        * 40      1,043
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Per Year.

    * Based on the estimated number of permit applications identified 
in Table 3, the Service estimates that the government would incur a net 
loss of over $32.1 million (three percent discount rate) or $18.5 
million (seven percent discount rate) under the current fee structure. 
This is illustrated in Table 6.

[[Page 22272]]



   Table 6--Estimated Baseline Economic Impact Associated With Baseline Fees to Government and Private Sector Applicants ($2011)--Lower-Bound Estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Private cost
                                                                                     ---------------------------------------------------  Total net cost
                           Discount rate                             Government cost    Application                                       to government
                                                                                            fees          Amendments     Total private
--------------------------------------------------------------------------------------------------------------------------------------------------------
0.03
    NPV............................................................     $32,835,964         $640,579           $9,800         $650,379     ($32,185,585)
    ANN............................................................      (1,675,267)         (32,682)            (500)         (33,182)       1,642,085
0.07
    NPV............................................................      18,873,469          368,192            6,205          374,397      (18,499,072)
    ANN............................................................      (1,520,945)         (29,671)            (500)         (30,171)       1,490,774
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The net loss to government associated with processing permits is 
expected to fall under the proposed new fees to less than $0.5 million 
under both a three percent and seven percent discount rate. Table 7 
shows the results.

       Table 7--Estimated Economic Impact Associated With Proposed Fees to Government and Private Sector Applicants ($2011)--Lower-Bound Estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Private cost
                                                                                     ---------------------------------------------------  Total net cost
                           Discount rate                             Government cost    Application                                       to government
                                                                                            fees          Amendments     Total private
--------------------------------------------------------------------------------------------------------------------------------------------------------
0.03
    NPV............................................................      $8,204,590       $7,777,030          $19,600       $7,782,926        ($421,664)
    ANN............................................................        (418,592)        (396,778)          (1,000)        (397,079)          21,513
0.07
    NPV............................................................       1,613,041        1,510,720           12,409        1,513,022         (100,019)
    ANN............................................................        (129,989)        (121,744)          (1,000)        (121,929)           8,060
--------------------------------------------------------------------------------------------------------------------------------------------------------

Upper-Bound Economic Impact Estimate

    For the upper-bound cost analysis, the Service is providing a 
conservative estimate of impacts. Specifically, this analysis is based 
on an assumption that every permit application will be for the maximum 
number of years (30). While the Service does not yet offer a 30 year 
permit, the Service expects these permits, if approved, to be in high 
demand, particularly from wind power generator farms as the lifecycle 
of these plants are expected to last longer than 30 years.
    According to the American Wind Energy Association, the level of 
production is expected to double by the end of this century in order to 
meet a goal of providing 20 percent of the country's electricity supply 
(http://www.awea.org/issues/supply_chain/Market-Growth-Potential.cfm). 
Based on the 2009 final rule's assumption that there would be 20 
private programmatic permits issued annually, this analysis assumes 
that by 2020 industry will be seeking on average 40 permits per year. 
Over the next thirty years, the Service could issue 1,108 30-year 
permits. The Service also estimates, for purposes of this analysis that 
there will be one amendment, on average per year. Table 8 shows the 
baseline calculation of future impacts to the government under the 
existing fee structure based on the application assumptions just 
mentioned. If the fee structure is not changed, the government would 
incur a total net cost of over $35.2 million based on a three percent 
discount rate, as shown in Table 9. This roughly translates into an 
impact of $50,250 per permit.

                                    Table 8--Estimated Permit Applications by Type (2012-2041)--Upper-Bound Estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                30 year
                                               2012       2013       2014       2015       2016       2017       2018       2019    2020-2041    total
--------------------------------------------------------------------------------------------------------------------------------------------------------
30-year...................................         20         22         25         27         30         32         35         37         40      1,108
                                           -------------------------------------------------------------------------------------------------------------
    Total.................................         20         22         25         27         30         32         35         37         40      1,108
--------------------------------------------------------------------------------------------------------------------------------------------------------


       Table 9--Estimated Economic Impact Associated With Baseline Fees to Government and Private Sector Applicants ($2011)--Upper-Bound Estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Private cost
                                                                                     ---------------------------------------------------  Total net cost
                           Discount rate                             Government cost    Application                                       to government
                                                                                            fees          Amendments     Total private
--------------------------------------------------------------------------------------------------------------------------------------------------------
0.03
    NPV............................................................     $35,912,443         $700,596           $9,315         $709,911     ($35,202,532)
    ANN............................................................      (1,832,226)         (35,744)            (475)         (36,219)       1,796,007
0.07
    NPV............................................................      21,655,515          422,466            5,737          428,203      (21,227,312)
    ANN............................................................      (1,745,140)         (34,045)            (462)         (34,507)       1,710,633
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 22273]]

    Table 10 shows the calculated total cost to industry over the next 
30 years under the revised fee and amendment structure. The Table shows 
both the net present value of impacts of total costs as well as 
annualized costs using both a three percent and seven percent discount 
rate as prescribed by the Office of Management and Budget. Based on a 
three percent rate, the total maximum cost to the Service would be 
$35.9 million compared to a total private sector application cost of 
$36.2 million. The net discounted cost to the government associated 
with processing these applications would be $257,000, which is 
equivalent to about $350 per permit. Under this proposal the government 
would recoup the cost of its services (as identified in Table 2) on 
essentially a break-even basis.

       Table 10--Estimated Economic Impact Associated With Proposed Fees to Government and Private Sector Applicants ($2011)--Upper-Bound Estimate
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Private cost
                                                                                     ---------------------------------------------------  Total net cost
                           Discount rate                             Government cost    Application                                       to government
                                                                                            fees          Amendments     Total private
--------------------------------------------------------------------------------------------------------------------------------------------------------
0.03
    NPV............................................................     $35,912,443      $36,150,772          $18,630      $36,169,401         $256,958
    ANN............................................................      (1,832,226)      (1,844,386)            (950)      (1,845,336)         (13,110)
0.07
    NPV............................................................      21,655,515       21,799,229           11,474       21,810,704          155,189
    ANN............................................................      (1,745,140)      (1,756,721)            (925)      (1,757,646)         (12,506)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Over time, the application processing and administration fees 
needed to recoup costs to the Service will likely need to increase to 
account for inflation. Adjustment in fees may also be warranted to 
reflect actual costs (versus the cost estimates we are using for this 
rulemaking). Consequently, we anticipate revising the fee schedule 
periodically in the future. However, each permittee who has paid the 
fees required at the time his or her permit was issued would not be 
required to submit additional administration fees during the life of 
the permit.
    In a separate notice being published in today's Federal Register, 
we are soliciting public comment on all other aspects of the 
nonpurposeful eagle take permit regulations at Sec.  22.26 that are not 
addressed in this proposed rule.

Public Comments

    We request comments on this proposed rule. Specifically, we are 
interested in public comment on the Service's plan to require 
commitment from long-term programmatic permit applicants to implement 
additional specified mitigation measures if take exceeds predicted 
levels or if monitoring or new scientific information indicates that 
such measures are necessary to protect eagles adequately. We are 
interested in public comment on how such an approach could be developed 
in a way that would be practicable. Also, we are interested in 
suggestions for identifying and specifically defining what we are 
referring to as ``programmatic, small-impact'' projects that are 
expected to result in take of eagles over the life of their operations 
but are expected to have negligible impacts on bald or golden eagle 
populations, individually.
    We request public comment on whether the fee proposal should be 
revised in the final regulation to consist of a processing fee to be 
paid on submission of the permit application and an administration fee 
to be paid if the applicant is advised that the permit has been 
approved. We also seek comment on whether the administration fee that 
would recoup the costs of monitoring during the life of the permit 
should be a one-time expense paid when the permit is issued. The 
alternative would be to require the permittee to pay for those costs 
periodically over the life of the permit.
    You may submit your comments and supporting materials by one of the 
methods listed in ADDRESSES. We request that you submit comments by 
only one method. We will not consider comments sent by email or fax, or 
written comments sent to an address other than the one listed in 
ADDRESSES. If you submit a comment via http://www.regulations.gov, your 
entire comment--including any personal identifying information--will be 
posted on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request that we withhold this 
information from public review, but we cannot guarantee that we will be 
able to do so. We will post all hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection at http://www.regulations.gov, or by 
appointment, during normal business hours, by contacting one of the 
people listed above under FOR FURTHER INFORMATION CONTACT.

Required Determinations

Regulatory Planning and Review (Executive Order 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is significant under Executive Order 12866. OMB bases its 
determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government;
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions;
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients; and
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effect of the rule on small businesses, 
small organizations, and small government jurisdictions. However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule would not have a significant economic impact on a 
substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal

[[Page 22274]]

agencies to provide the statement of the factual basis for certifying 
that a rule would not have a significant economic impact on a 
substantial number of small entities. We have examined this proposed 
rule's potential effects on small entities as required by the 
Regulatory Flexibility Act and determined that this action would not 
have a significant economic impact on a substantial number of small 
entities.
    In the nearly two and a half years since the eagle permit 
regulations were published, we have received only one programmatic 
permit application, which was for a utility-scale wind energy facility. 
As noted previously, we anticipate a greater volume of permit 
applications in the future, although we expect the number to increase 
gradually for a period of years and perhaps eventually reach an average 
of 40 or fewer per year.
    Utility-scale wind energy facilities and electric transmission 
companies are likely to be the most frequent programmatic permit 
applicants, because of the known risk to eagles from collisions with 
wind turbines and electric power lines. Although smaller wind energy 
facilities could seek programmatic permits, we anticipate that most of 
the applications for wind energy facilities will be for those that are 
commercial or utility scale. Small projects often will consist of 
turbines with smaller structural dimensions (smaller tower and rotor 
blades) than commercial scale turbines. The number of turbines 
associated with utility-scale facilities, and their distribution on the 
landscape, are such that they are likely to pose a much greater risk of 
incidentally taking eagles than are facilities with few, smaller 
turbines.
    Given current domestic wind energy cumulative wind capacity and 
other wind energy industry statistics, we anticipate that a substantial 
number of applicants for programmatic permits for wind energy projects 
will be small entities as defined in 13 CFR 121.201 (e.g., industrial 
building construction companies with less than $33.5 million of annual 
receipts, or electrical generating companies with less than 4 million 
megawatt hours of generation, transmission and/or distribution). The 
SBA Small Business Size Standards identifies utilities engaged in 
electric power generation and electric power distribution as small 
entities if their total output for the preceding fiscal year did not 
exceed 4 million megawatt hours. Using this standard, we estimate that 
a substantial number of applicants for a programmatic permit would be 
small entities.
    An applicant for a programmatic permit would pay a $36,000 
processing fee, or $5,000 for a small-impact project, to apply for a 
permit up to 30 years. Additionally a permittee would pay an 
administration fee ranging from $2,600 to $15,600, depending upon the 
permit tenure. No administration fee would be assessed for a small-
impact permit. Amortized over the life of a 30-year permit, this would 
range from $167 per year to $1,720 per year. We believe most applicants 
will seek a 30-year permit to match the life of the project. We do not 
believe this would impose a significant economic impact on these small 
entities. We may lack information on other potential economic impacts 
to these small entities. Therefore, we request comments and information 
from industry and any other interested parties regarding probable 
economic impacts of this proposal.
    Although businesses in other business sectors, such as railroads, 
timber companies, and pipeline companies could also apply for 
programmatic permits, we anticipate the number of permit applicants in 
such sectors to be very small, on the order of one or two per year for 
each such sector. Thus, we anticipate that the proposed rule would not 
have a significant economic impact on a substantial number of small 
entities in sectors other than the utility sector as described above.
    In addition to the increased application processing fee, the 
additional specified mitigation measures that could be required under 
the terms and conditions of permits issued with a term of longer than 5 
years could result in some additional costs to the permittee, but those 
costs should be offset by the reduction in uncertainty for the 
permittee achieved by securing a 30-year programmatic permit rather 
than a 5-year standard permit. Consequently, we certify that because 
this proposed rule would not have a significant economic effect on a 
substantial number of small entities, a regulatory flexibility analysis 
is not required.
    This proposed rule is not a major rule under SBREFA (5 U.S.C. 
804(2)).
    a. This proposed rule would not have an annual effect on the 
economy of $100 million or more.
    b. This proposed rule would not cause a major increase in costs or 
prices for consumers; individual industries; Federal, State, or local 
government agencies; or geographic regions.
    c. This proposed rule would not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we have determined the following:
    a. This proposed rule would not ``significantly or uniquely'' 
affect small governments. A small government agency plan is not 
required. The proposed regulations changes would not affect small 
government activities in any significant way.
    b. This proposed rule would not produce a Federal mandate of $100 
million or greater in any year. It is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act.

Takings

    In accordance with E.O. 12630, the rule would not have significant 
takings implications. This proposed rule does not contain any 
provisions that could constitute taking of private property. Therefore, 
a takings implication assessment is not required.

Federalism

    This proposed rule would not have sufficient Federalism effects to 
warrant preparation of a Federalism assessment under E.O. 13132. It 
would not interfere with the States' abilities to manage themselves or 
their funds. No significant economic impacts are expected to result 
from the regulations change.

Civil Justice Reform

    In accordance with E.O. 12988, the Office of the Solicitor has 
determined that the rule would not unduly burden the judicial system 
and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

Paperwork Reduction Act

    This proposed rule contains a collection of information that we are 
submitting to the Office of Management and Budget (OMB) for review and 
approval under Sec. 3507(d) of the Paperwork Reduction Act (PRA). OMB 
has reviewed and approved the information collection requirements 
associated with migratory bird permits and assigned OMB Control Number 
1018-0022, which expires February 28, 2014. This approval includes 5-
year eagle take programmatic permits.
    We propose to revise the regulations for permits for nonpurposeful 
take of golden eagles and bald eagles where the take is associated 
with, but not the purpose, of the activity. We propose to extend the 
maximum term for programmatic permits to 30 years, if they incorporate 
conditions requiring the permittee to implement additional adaptive 
conservation measures if necessary to ensure the preservation of

[[Page 22275]]

eagles. This change will facilitate the development of renewable energy 
and other projects that are designed to be in operation for many 
decades. This change will also provide more certainty to project 
proponents and their funding sources, while continuing to protect 
eagles consistent with statutory mandates. We also propose to raise the 
application processing fee for 5-year programmatic permits from $1,000 
to $36,000. See above, under ``Permit Application Processing Fee and 
Administration Fee'' for more detailed information on the increase in 
permit fees.
    For permits valid for more than 5 years, we propose to charge a fee 
sufficient to offset the estimated costs associated with processing and 
our periodic review of these permits. Revised OMB circular A-25 directs 
Executive Branch agencies to recover costs, stating that, ``When a 
service (or privilege) provides special benefits to an identifiable 
recipient beyond those that accrue to the general public, a charge will 
be imposed (to recover the full cost to the Federal Government for 
providing the special benefit, or the market price).'' Further, 
Circular A-25 directs that, ``Except as provided in Section 6c, user 
charges will be sufficient to recover the full cost to the Federal 
Government (as defined in Section 6d) of providing the service, 
resource, or good when the Government is acting in its capacity as 
sovereign.'' Thus, the directive to the Service is to recover the costs 
for working with applicants, assessing permit applications, and 
undertaking monitoring associated with each permit. Many of these costs 
are borne by the Service prior to receiving an eagle permit.
    We are requesting that OMB assign a new control number for the 
requirements associated with the new programmatic permits. When we 
publish the final rule, we will incorporate the new requirements into 
OMB Control Number 1018-0022 and discontinue the new number. An agency 
may not conduct or sponsor and you are not required to respond to a 
collection of information unless it displays a currently valid OMB 
control number.
    Title: Long-Term Eagle Take Programmatic Permits, 50 CFR 13 and 22.
    OMB Control Number: None. This is a new collection.
    Service Form Number(s): 3-200-71 and 3-202-15.
    Type of Request: New collection.
    Description of Respondents: Individuals; businesses; and State, 
local, and tribal governments. We expect that the majority of private 
applicants seeking a 30-year permit will be in the energy production 
and electrical distribution business.
    Respondent's Obligation: Required to obtain or retain a benefit.
    Frequency of Collection: On occasion.

----------------------------------------------------------------------------------------------------------------
                                                  Number of non-                    Completion
                    Activity                          Federal        Number of       time per      Total annual
                                                   respondents *     responses       response       hours spent
----------------------------------------------------------------------------------------------------------------
Application **..................................              20              20             452           9,040
Monitoring and Reporting........................              20              20             312           6,240
Recordkeeping...................................              20              20              30             600
Amendments......................................               3               3              70             210
Transfers.......................................               3               3             120             120
                                                 ---------------------------------------------------------------
    Totals......................................              66              66  ..............          16,210
----------------------------------------------------------------------------------------------------------------
* For the next three years, we expect a maximum of 20 private entities to apply for programmatic long-term
  permits.
** Includes researching permit requirements, conducting pre-application surveys/studies, and completing the
  application form.

    Estimated Total Nonhour Burden Cost: $688,000, based primarily on 
application processing fees, as well as fees for amendments to permits 
and for transfer of permits. States, local governments, and tribal 
governments are exempt from paying these fees.
    As part of our continuing effort to reduce paperwork and respondent 
burdens, we invite the public and other Federal agencies to comment on 
any aspect of the reporting burden, including:
    (1) Whether or not the collection of information is necessary, 
including whether or not the information will have practical utility;
    (2) The accuracy of our estimate of the burden for this collection 
of information;
    (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 
respondents.
    Send your comments and suggestions on this information collection 
to the Desk Officer for the Department of the Interior at OMB-OIRA at 
(202) 395-5806 (fax) or <a href="/cdn-cgi/l/email-protection#b8f7f1eaf9e7fcf7fbf3fdecf8f7f5fa96ddd7c896dfd7ce"><span class="__cf_email__" data-cfemail="d29d9b80938d969d91999786929d9f90fcb7bda2fcb5bda4">[email protected]</span></a> (email). Please 
provide a copy of your comments to the Service Information Collection 
Clearance Officer, U.S. Fish and Wildlife Service, MS 2042-PDM, 4401 
North Fairfax Drive, Arlington, VA 22203 (mail), or <a href="/cdn-cgi/l/email-protection#a2ebece4ede1edeee2c4d5d18cc5cdd4"><span class="__cf_email__" data-cfemail="b8f1f6fef7fbf7f4f8decfcb96dfd7ce">[email protected]</span></a> 
(email).

National Environmental Policy Act

    We have analyzed this proposed rule in accordance with the National 
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) and Department 
regulations at 43 CFR part 46. The changes we propose to 50 CFR 22.26 
would have negligible new effects. Although take authorizations under 
the proposed regulations could be valid for up to 30 years, we would 
continue to require appropriate mitigation for impacts to eagles and 
will thoroughly evaluate the effects to eagles at periodic intervals 
during the life of the permit. If necessary, we would require the 
permittee to implement additional measures specified in the terms and 
conditions of the permit to further safeguard eagles. This would be 
similar to the current process, which could also require an applicant 
to implement additional measures to renew a permit after expiration of 
the current 5-year term limit. In 2009, we completed a Final 
Environmental Assessment (FEA) on the take authorized by permits under 
Sec.  22.26 when we published those permit regulations (U.S. Fish and 
Wildlife Service; Final Environmental Assessment: Proposal to Permit 
Take as Provided Under the Bald and Golden Eagle Protection Act; April 
2009). The proposed changes to the regulation would fully comply with 
the FEA. Any take of eagles under these proposed revisions must be 
compatible with the preservation of the eagles and cannot be permitted 
if it would exceed the take thresholds established in the 2009 FEA.
    We have determined that the proposed changes to 50 CFR 22.26 are 
categorically excluded under the NEPA because the action is a revision 
of regulations that would change the tenure of a permit issued under 50 
CFR

[[Page 22276]]

22.26. A change in the permit tenure would not remove the permittee's 
obligation to comply with the provisions of the permit. The revision of 
50 CFR 10.13 is strictly administrative. Therefore, it is categorically 
excluded from further NEPA requirements (43 CFR 46.210(i)). No more 
comprehensive NEPA analysis of the regulations change is required.

Endangered and Threatened Species

    Section 7 of the Endangered Species Act (ESA) of 1973, as amended 
(16 U.S.C. 1531 et seq.), requires that ``The Secretary [of the 
Interior] shall review other programs administered by him and utilize 
such programs in furtherance of the purposes of this Act'' (16 U.S.C. 
1536(a)(1)). It further states that the Federal agency must ``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'' (16 U.S.C. 1536(a)(2)). This proposed rule 
would not affect endangered or threatened species or critical habitats; 
it simply proposes to increase the number of years that a programmatic 
permit may be valid under certain conditions. In addition, each 
individual permit must comply with the provisions of section 7 at the 
time the permit is issued.

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we have 
evaluated potential effects on federally recognized Indian tribes and 
have determined that this proposed rule would not interfere with 
tribes' abilities to manage themselves, their funds, or tribal lands. 
However, we have not yet consulted with tribes regarding this proposed 
rule.
    Some tribes that value eagles as part of their cultural heritage 
objected to the promulgation of the 2009 eagle take permit rule based 
on the belief that the regulations would not adequately protect eagles. 
Those tribes may perceive further negative effects from these proposed 
changes. However, eagles would be sufficiently protected under this 
proposal because only those applicants who commit to adaptive 
management measures to ensure the preservation of eagles will receive 
permits with terms longer than 5 years.

Energy Supply, Distribution, or Use (Executive Order 13211)

    E.O. 13211 addresses regulations that significantly affect energy 
supply, distribution, and use. E.O. 13211 requires agencies to prepare 
Statements of Energy Effects when undertaking certain actions. Although 
this rule, if finalized as proposed, would facilitate the funding, 
construction, and operation of numerous energy generation projects, 
including wind power facilities, the rule is not a significant 
regulatory action under E.O. 13211, and no Statement of Energy Effects 
is required.

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.

Proposed Regulation Promulgation

    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--GENERAL PERMIT PROCEDURES

    1. The authority for part 13 continues to read as follows:

    Authority: 16 U.S.C. 668a, 704, 712, 742j-l, 1374(g), 1382, 
1538(d), 1539, 1540(f), 3374, 4901-4916; 18 U.S.C. 42; 19 U.S.C. 
1202; 31 U.S.C. 9701.

    2. Revise the table in Sec.  13.11(d)(4) to read as follows:


Sec.  13.11  Application procedures.

* * * * *
    (d) * * *
    (4) * * *

----------------------------------------------------------------------------------------------------------------
                                                                      Permit
             Type of permit                    CFR citation         application   Administration   Amendment fee
                                                                        fee           fee \1\
----------------------------------------------------------------------------------------------------------------
                                            Migratory Bird Treaty Act
----------------------------------------------------------------------------------------------------------------
Migratory Bird Import/Export...........  50 CFR 21..............              75  ..............  ..............
Migratory Bird Banding or Marking......  50 CFR 21..............          No fee  ..............  ..............
Migratory Bird Scientific Collecting...  50 CFR 21..............             100  ..............              50
Migratory Bird Taxidermy...............  50 CFR 21..............             100  ..............  ..............
Waterfowl Sale and Disposal............  50 CFR 21..............              75  ..............  ..............
Special Canada Goose...................  50 CFR 21..............          No fee  ..............  ..............
Migratory Bird Special Purpose/          50 CFR 21..............              75  ..............  ..............
 Education.
Migratory Bird Special Purpose/Salvage.  50 CFR 21..............              75  ..............  ..............
Migratory Bird Special Purpose/Game      50 CFR 21..............              75  ..............  ..............
 Bird Propagation.
Migratory Bird Special Purpose/          50 CFR 21..............             100  ..............  ..............
 Miscellaneous.
Falconry...............................  50 CFR 21..............             100  ..............  ..............
Raptor Propagation.....................  50 CFR 21..............             100  ..............  ..............
Migratory Bird Rehabilitation..........  50 CFR 21..............              50  ..............  ..............
Migratory Bird Depredation.............  50 CFR 21..............             100  ..............              50
Migratory Bird Depredation/Homeowner...  50 CFR 21..............              50  ..............  ..............
----------------------------------------------------------------------------------------------------------------
                                      Bald and Golden Eagle Protection Act
----------------------------------------------------------------------------------------------------------------
Eagle Scientific Collecting............  50 CFR 22..............             100  ..............              50
Eagle Exhibition.......................  50 CFR 22..............              75  ..............  ..............
Eagle Falconry.........................  50 CFR 22..............             100  ..............  ..............
Eagle--Native American Religion........  50 CFR 22..............          No fee  ..............  ..............
Eagle Take permits--Depredation and      50 CFR 22..............             100  ..............  ..............
 Protection of Health and Safety.
Golden Eagle Nest Take.................  50 CFR 22..............             100  ..............              50

[[Page 22277]]

 
Eagle Transport--Scientific or           50 CFR 22..............              75  ..............  ..............
 Exhibition.
Eagle Transport--Native American         50 CFR 22..............          No fee  ..............  ..............
 Religious Purposes.
Eagle Take--Associated With but Not the  50 CFR 22..............             500  ..............             150
 Purpose of an Activity.
Eagle Take--Associated With But Not the  50 CFR 22..............           5,000  ..............           1,000
 Purpose of an Activity--Programmatic,
 small-impact projects, 5- to 30-year
 tenure.
Eagle Take--Associated With But Not the  50 CFR 22..............          36,000           2,600           1,000
 Purpose of an Activity--Programmatic,
 up to 5-year tenure.
Eagle Take--Associated With But Not the  50 CFR 22..............          36,000           5,200           1,000
 Purpose of an Activity--Programmatic,
 over 5-year to 10[dash]year tenure.
Eagle Take--Associated With But Not the  50 CFR 22..............          36,000           7,800           1,000
 Purpose of an Activity--Programmatic,
 over 10-year to 15[dash]year tenure.
Eagle Take--Associated With But Not the  50 CFR 22..............          36,000          10,400           1,000
 Purpose of an Activity--Programmatic,
 over 15-year to 20[dash]year tenure.
Eagle Take--Associated With But Not the  50 CFR 22..............          36,000          13,000           1,000
 Purpose of an Activity--Programmatic,
 over 20-year to 25[dash]year tenure.
Eagle Take--Associated With But Not the  50 CFR 22..............          36,000          15,600           1,000
 Purpose of an Activity--Programmatic,
 over 25-year to 30[dash]year tenure.
Eagle Take--Associated With But Not the  50 CFR 22..............           1,000  ..............  ..............
 Purpose of an Activity--Transfer of a
 programmatic permit.
Eagle Nest Take........................  50 CFR 22..............             500  ..............             150
Eagle Nest Take--Programmatic..........  50 CFR 22..............            1000  ..............             500
Eagle Take--Exempted under ESA.........  50 CFR 22..............          No fee  ..............  ..............
----------------------------------------------------------------------------------------------------------------
                                     Endangered Species Act/CITES/Lacey Act
----------------------------------------------------------------------------------------------------------------
ESA Recovery...........................  50 CFR 17..............             100  ..............              50
ESA Interstate Commerce................  50 CFR 17..............             100  ..............              50
ESA Enhancement of Survival (Safe        50 CFR 17..............              50  ..............              25
 Harbor Agreement).
ESA Enhancement of Survival (Candidate   50 CFR 17..............              50  ..............              25
 Conservation Agreement with
 Assurances).
ESA Incidental Take (Habitat             50 CFR 17..............             100  ..............              50
 Conservation Plan).
ESA and CITES Import/Export and Foreign  50 CFR 17..............             100  ..............              50
 Commerce.
ESA and CITES Museum Exchange..........  50 CFR 17..............             100  ..............              50
ESA Captive-bred Wildlife Registration.  50 CFR 17..............             200  ..............             100
--Renewal of Captive-bred wildlife       50 CFR 17..............             100  ..............  ..............
 registration.
CITES Import (including trophies under   50 CFR 17, 18, 23......             100  ..............              50
 ESA and MMPA).
CITES Export...........................  50 CFR 23..............             100  ..............              50
CITES Pre-Convention...................  50 CFR 23..............              75  ..............              40
CITES Certificate of Origin............  50 CFR 23..............              75  ..............              40
CITES Re-export........................  50 CFR 23..............              75  ..............              40
CITES Personal Effects and Pet Export/   50 CFR 23..............              50  ..............  ..............
 Re-Export.
CITES Appendix II Export (native         50 CFR 23..............             100  ..............              50
 furbearers and alligators--excluding
 live animals).
CITES Master File (includes files for    50 CFR 23..............             200  ..............             100
 artificial propagation, biomedical,
 etc. and covers import, export, and re-
 export documents).
--Renewal of CITES Master File.........  50 CFR 23..............             100  ..............  ..............
--Single-use permits issued on Master    50 CFR 23..............           \2\ 5  ..............  ..............
 File.
CITES Annual Program File..............  50 CFR 23..............              50  ..............  ..............
--Single-use permits issued under        50 CFR 23..............           \2\ 5  ..............  ..............
 Annual Program.
CITES replacement documents (lost,       50 CFR 23..............              50  ..............              50
 stolen, or damaged documents).
CITES Passport for Traveling             50 CFR 23..............          \3\ 75  ..............  ..............
 Exhibitions and Pets.
CITES/ESA Passport for Traveling         50 CFR 23..............         \3\ 100  ..............  ..............
 Exhibitions.
CITES Introduction from the Sea........  50 CFR 23..............             100  ..............              50
CITES Participation in the Plant Rescue  50 CFR 23..............          No fee  ..............  ..............
 Center Program.
CITES Registration of Commercial         50 CFR 23..............             100  ..............  ..............
 Breeding Operations for Appendix-I
 wildlife.
CITES Request for Approval of an Export  50 CFR 23..............          No fee  ..............  ..............
 Program for a State or Tribe (American
 Ginseng, Certain Furbearers, and
 American Alligator).
Import/Export License..................  50 CFR 14..............             100  ..............              50
Designated Port Exception..............  50 CFR 14..............             100  ..............              50
Injurious Wildlife Permit..............  50 CFR 16..............             100  ..............              50
--Transport Authorization for Injurious  50 CFR 16..............              25  ..............  ..............
 Wildlife.
----------------------------------------------------------------------------------------------------------------
                                        Wild Bird Conservation Act (WBCA)
----------------------------------------------------------------------------------------------------------------
Personal Pet Import....................  50 CFR 15..............              50  ..............  ..............
WBCA Scientific Research, Zoological     50 CFR 15..............             100  ..............              50
 Breeding or Display, Cooperative
 Breeding.
WBCA Approval of Cooperative Breeding    50 CFR 15..............             200  ..............             100
 Program.
--Renewal of a WBCA Cooperative          50 CFR 15..............              50  ..............  ..............
 Breeding Program.
WBCA Approval of a Foreign Breeding      50 CFR 15..............         \4\ 250  ..............  ..............
 Facility.
----------------------------------------------------------------------------------------------------------------

[[Page 22278]]

 
                                           Marine Mammal Protection Ac
----------------------------------------------------------------------------------------------------------------
Marine Mammal Public Display...........  50 CFR 18..............             300  ..............             150
Marine Mammal Scientific Research/       50 CFR 18..............             150  ..............              75
 Enhancement/Registered Agent or
 Tannery.
--Renewal of Marine Mammal Scientific    50 CFR 18..............              75  ..............  ..............
 Research/Enhancement/Registered Agent
 or Tannery.
----------------------------------------------------------------------------------------------------------------
\1\ Assessed when a permit is issued.
\2\ Each.
\3\ Per animal.
\4\ Per species.

* * * * *
    3. Amend Sec.  13.24 by revising paragraph (c) to read as follows:


Sec.  13.24  Right of succession by certain persons.

* * * * *
    (c) In the case of permits issued under Sec.  17.22(b) through (d) 
or Sec.  17.32(b) through (d) or permits issued under Sec.  22.26 of 
this subchapter B, the successor's authorization under the permit is 
also subject to our determination that:
    (1) The successor meets all of the qualifications under this part 
for holding a permit;
    (2) The successor has provided adequate written assurances that it 
will provide sufficient funding for any applicable conservation 
measures, conservation plan, or Agreement and will implement the 
relevant terms and conditions of the permit, including any outstanding 
minimization and mitigation requirements; and
    (3) The successor has provided such other information as we 
determine is relevant to the processing of the request.
    4. Amend Sec.  13.25 by revising paragraph (b) and adding a new 
paragraph (f) to read as follows:


Sec.  13.25  Transfer of permits and scope of permit authorization.

* * * * *
    (b) Permits issued under Sec.  17.22(b) through (d) or Sec.  
17.32(b) through (d) or permits issued under Sec.  22.26 of this 
subchapter B may be transferred in whole or in part through a joint 
submission by the permittee and the proposed transferee, or in the case 
of a deceased permittee, the deceased permittee's legal representative 
and the proposed transferee, provided we determine that:
    (1) The proposed transferee meets all of the qualifications under 
this part for holding a permit;
    (2) The proposed transferee has provided adequate written 
assurances that it will provide sufficient funding for the conservation 
measures, conservation plan, or Agreement and will implement the 
relevant terms and conditions of the permit, including any outstanding 
minimization and mitigation requirements; and
    (3) The proposed transferee has provided such other information as 
we determine is relevant to the processing of the submission.
* * * * *
    (f) In the case of permits issued under Sec.  22.26 of this 
subchapter B to a Federal, State, tribal, or local governmental entity, 
a person is under the direct control of the permittee if the person is 
under the jurisdiction of the permittee, provided the permittee has the 
regulatory authority to require the person to comply with the terms and 
conditions of the permit and the permit provides that such person(s) 
may carry out the authorized activity.

PART 22--EAGLE PERMITS

    5. The authority for part 22 continues to read as follows:

    Authority: 16 U.S.C. 668-668d; 16 U.S.C. 703-712; 16 U.S.C. 
1531-1544.

    6. Amend Sec.  22.26 by revising paragraph (h) and adding paragraph 
(i) to read as follows:


Sec.  22.26  Permits for eagle take that is associated with, but not 
the purpose of, an activity.

* * * * *
    (h) Permit duration. The duration of each permit issued under this 
section will be designated on its face and will be based on the 
duration of the proposed activities, the period of time for which take 
will occur, the level of impacts to eagles, and the nature and extent 
of mitigation measures incorporated into the terms and conditions of 
the permit. Standard permits will not exceed 5 years. A permit for 
programmatic take will be issued for a term no shorter than 5 years and 
no longer than 30 years.
    (i) Transfer of programmatic permits. Programmatic permits may be 
transferred to new owners of facilities, provided that the new owners 
have never had a permit issued by the U.S. Fish and Wildlife Service 
suspended or revoked, and have not been convicted of violating a 
Federal wildlife law in the last 10 years. The transferee must meet all 
of the qualifications under this part for holding a permit, as well as 
the requirements of Sec.  13.25(b) of this subchapter B.

    Dated: January 19, 2012.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-8086 Filed 4-12-12; 8:45 am]
BILLING CODE 4310-55-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>