Federal Register / Vol. 77, No. 72 / Friday, April 13, 2012 / Proposed Rules 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. 

• Federal eRulemaking portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

on Docket No. FWS–R9–MB–2011– 

0054. 

• 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 OIRA_DOCKET@OMB.eop.gov 

(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 INFOCOL@fws.gov 

(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’’ 

(§ 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 § 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 


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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 § 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 (§ 22.27 and § 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 (§ 22.21), exhibition 

(§ 22.21), Native American religious use 

(§ 22.22), depredation/health and safety 

(§ 22.23), and falconry (§ 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 

§ 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 § 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 


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Federal Register / Vol. 77, No. 72 / Friday, April 13, 2012 / Proposed Rules 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 longterm 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 nonpurposeful 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 nonpurposeful eagle take for up to 30 years. 

The proposed application processing fee 

for such programmatic, small-impact 

projects such as some small wind 


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22270 Federal Register / Vol. 77, No. 72 / Friday, April 13, 2012 / Proposed Rules 

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 § 22.26 permits. 

TABLE 1—PROPOSED APPLICATION COSTS, AMENDMENT FEES, AND TRANSFER FEES

Current fees Proposed fees 

Application 

cost 

Additional 

cost for 

every 5 

years * 

Amendment 

fee Transfer fee Application cost 

Additional 

costs for every 

5 years * 

Amendment 

fee Transfer fee 

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

Permit tenure Application 

processing fee 

Administration 

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

Permit tenure Application 

processing fee 

Administration 

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 


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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

Task No. Service biologist and examiner task 

Grade level and hours 

GS 9 GS 11 GS 12 GS 13 GS 14 

1 ............. Participate in preapplication communication with a potential applicant................... 12 12 10 ..................

2 ............. Participate in preapplication technical assistance with a potential 

applicant.

.................. 10 20 10 ..................

3 ............. Coordinate regionally and nationally on permit preapplication/ 

permit application.

.................. 25 25 .................. ..................

4 ............. Review and determine the adequacy of the information an applicant provides................... 12 12 1 ..................

5 ............. Conduct any internal research necessary to verify information in 

the application or evaluate the biological impact of the proposed activity.

.................. 12 2 1 ..................

6 ............. Coordinate internally, regionally on application (tribal, SHPO, biological, etc)................... 20 2 4 2 

7 ............. Evaluate whether the proposed activity meets the issuance criteria................... 8 4 .................. ..................

8 ............. Prepare or review NEPA documentation ...................................... .................. 80 80 80 ..................

9 ............. Prepare either a permit or a denial letter for the applicant ........... .................. 12 4 .................. ..................

10 ........... When necessary to evaluate the impact of the proposed activity, 

visit the location to examine site-specific conditions.

.................. 16 16 3 ..................

11 ........... Monitor reports over 30 years ....................................................... .................. 60 40 40 ..................

12 ........... Evaluate project impacts for adaptive management, including coordination with permittee if minimization or mitigation measures are not adequate.12 20 20 20 4 

Total hours ..................................................................................... 12 287 237 169 6 

Cost per hour (Step 5 × 1.5 × 1.25) 2 ............................................ $50 .92 $61 .61 $73 .85 $87 .82 $103 .78 

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 lowerbound 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

2012 2013 2014 2015 2016 2017 2018 2019 2020– 

2041* 30 yr 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. 


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TABLE 6—ESTIMATED BASELINE ECONOMIC IMPACT ASSOCIATED WITH BASELINE FEES TO GOVERNMENT AND PRIVATE

SECTOR APPLICANTS ($2011)—LOWER-BOUND ESTIMATE

Discount rate Government 

cost 

Private cost Total net cost to 

government Application 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

Discount rate Government 

cost 

Private cost Total net cost to 

government Application 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

2012 2013 2014 2015 2016 2017 2018 2019 2020– 

2041 

30 year 

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

Discount rate Government 

cost 

Private cost Total net cost to 

government Application 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 


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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

Discount rate Government 

cost 

Private cost Total net cost to 

government Application 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 § 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, smallimpact’’ 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 


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22274 Federal Register / Vol. 77, No. 72 / Friday, April 13, 2012 / Proposed Rules 

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 


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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. 

Activity 

Number of 

non-Federal 

respondents * 

Number of 

responses 

Completion 

time per 

response 

Total annual 

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 

OIRA_DOCKET@OMB.eop.gov (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 INFOCOL@fws.gov 

(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 

§ 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 


tkelley on DSK3SPTVN1PROD with PROPOSALS
22276 Federal Register / Vol. 77, No. 72 / Friday, April 13, 2012 / Proposed Rules 

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 § 13.11(d)(4) to 

read as follows: 

§ 13.11 Application procedures. 

* * * * * 

(d) * * * 

(4) * * * 

Type of permit CFR 

citation 

Permit 

application 

fee 

Administration 

fee 1

Amendment 

fee 

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/Education ............................................................ 50 CFR 21 75 ........................ ........................

Migratory Bird Special Purpose/Salvage ............................................................... 50 CFR 21 75 ........................ ........................

Migratory Bird Special Purpose/Game Bird Propagation ...................................... 50 CFR 21 75 ........................ ........................

Migratory Bird Special Purpose/Miscellaneous ..................................................... 50 CFR 21 100 ........................ ........................

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 Protection of Health and Safety .............. 50 CFR 22 100 ........................ ........................

Golden Eagle Nest Take ....................................................................................... 50 CFR 22 100 ........................ 50 


tkelley on DSK3SPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 72 / Friday, April 13, 2012 / Proposed Rules 22277 

Type of permit CFR 

citation 

Permit 

application 

fee 

Administration 

fee 1

Amendment 

fee 

Eagle Transport—Scientific or Exhibition .............................................................. 50 CFR 22 75 ........................ ........................

Eagle Transport—Native American Religious Purposes ....................................... 50 CFR 22 No fee ........................ ........................

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

Eagle Take—Associated With But Not the Purpose of an Activity—Programmatic, small-impact projects, 5- to 30-year tenure.50 CFR 22 5,000 ........................ 1,000 

Eagle Take—Associated With But Not the Purpose of an Activity—Programmatic, up to 5-year tenure.50 CFR 22 36,000 2,600 1,000 

Eagle Take—Associated With But Not the Purpose of an Activity—Programmatic, over 5-year to 10-year tenure.50 CFR 22 36,000 5,200 1,000 

Eagle Take—Associated With But Not the Purpose of an Activity—Programmatic, over 10-year to 15-year tenure.50 CFR 22 36,000 7,800 1,000 

Eagle Take—Associated With But Not the Purpose of an Activity—Programmatic, over 15-year to 20-year tenure.50 CFR 22 36,000 10,400 1,000 

Eagle Take—Associated With But Not the Purpose of an Activity—Programmatic, over 20-year to 25-year tenure.50 CFR 22 36,000 13,000 1,000 

Eagle Take—Associated With But Not the Purpose of an Activity—Programmatic, over 25-year to 30-year tenure.50 CFR 22 36,000 15,600 1,000 

Eagle Take—Associated With But Not the Purpose of an Activity—Transfer of a 

programmatic permit.

50 CFR 22 1,000 ........................ ........................

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 Harbor Agreement) .................................... 50 CFR 17 50 ........................ 25 

ESA Enhancement of Survival (Candidate Conservation Agreement with Assurances).50 CFR 17 50 ........................ 25 

ESA Incidental Take (Habitat Conservation Plan) ................................................ 50 CFR 17 100 ........................ 50 

ESA and CITES Import/Export and Foreign Commerce ....................................... 50 CFR 17 100 ........................ 50

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 registration ..................................................... 50 CFR 17 100 ........................ ........................

CITES Import (including trophies under ESA and MMPA) ................................... 50 CFR 

17, 18, 

23.

100 ........................ 50 

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/Re-Export .............................................. 50 CFR 23 50 ........................ ........................

CITES Appendix II Export (native furbearers and alligators—excluding live animals).50 CFR 23 100 ........................ 50 

CITES Master File (includes files for artificial propagation, biomedical, etc. and 

covers import, export, and re-export documents).

50 CFR 23 200 ........................ 100 

—Renewal of CITES Master File .......................................................................... 50 CFR 23 100 ........................ ........................

—Single-use permits issued on Master File .......................................................... 50 CFR 23 2 5 ........................ ........................

CITES Annual Program File .................................................................................. 50 CFR 23 50 ........................ ........................

—Single-use permits issued under Annual Program ............................................ 50 CFR 23 2 5 ........................ ........................

CITES replacement documents (lost, stolen, or damaged documents) ............... 50 CFR 23 50 ........................ 50 

CITES Passport for Traveling Exhibitions and Pets .............................................. 50 CFR 23 3 75 ........................ ........................

CITES/ESA Passport for Traveling Exhibitions ..................................................... 50 CFR 23 3 100 ........................ ........................

CITES Introduction from the Sea .......................................................................... 50 CFR 23 100 ........................ 50 

CITES Participation in the Plant Rescue Center Program .................................... 50 CFR 23 No fee ........................ ........................

CITES Registration of Commercial Breeding Operations for Appendix-I wildlife 50 CFR 23 100 ........................ ........................

CITES Request for Approval of an Export Program for a State or Tribe (American Ginseng, Certain Furbearers, and American Alligator).50 CFR 23 No fee ........................ ........................

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 Wildlife ..................................................... 50 CFR 16 25 ........................ ........................

Wild Bird Conservation Act (WBCA) 

Personal Pet Import ............................................................................................... 50 CFR 15 50 ........................ ........................

WBCA Scientific Research, Zoological Breeding or Display, Cooperative Breeding.50 CFR 15 100 ........................ 50 

WBCA Approval of Cooperative Breeding Program .............................................. 50 CFR 15 200 ........................ 100 

—Renewal of a WBCA Cooperative Breeding Program ....................................... 50 CFR 15 50 ........................ ........................

WBCA Approval of a Foreign Breeding Facility .................................................... 50 CFR 15 4 250 ........................ ........................


tkelley on DSK3SPTVN1PROD with PROPOSALS
22278 Federal Register / Vol. 77, No. 72 / Friday, April 13, 2012 / Proposed Rules 

Type of permit CFR 

citation 

Permit 

application 

fee 

Administration 

fee 1

Amendment 

fee 

Marine Mammal Protection Ac 

Marine Mammal Public Display ............................................................................. 50 CFR 18 300 ........................ 150 

Marine Mammal Scientific Research/Enhancement/Registered Agent or Tannery.50 CFR 18 150 ........................ 75 

—Renewal of Marine Mammal Scientific Research/Enhancement/Registered 

Agent or Tannery.

50 CFR 18 75 ........................ ........................

1Assessed when a permit is issued. 

2Each. 

3Per animal. 

4Per species. 

* * * * * 

3. Amend § 13.24 by revising 

paragraph (c) to read as follows: 

§ 13.24 Right of succession by certain 

persons. 

* * * * * 

(c) In the case of permits issued under 

§ 17.22(b) through (d) or § 17.32(b) 

through (d) or permits issued under 

§ 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 § 13.25 by revising 

paragraph (b) and adding a new 

paragraph (f) to read as follows: 

§ 13.25 Transfer of permits and scope of 

permit authorization. 

* * * * * 

(b) Permits issued under § 17.22(b) 

through (d) or § 17.32(b) through (d) or 

permits issued under § 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 

§ 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 § 22.26 by revising 

paragraph (h) and adding paragraph (i) 

to read as follows: 

§ 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 § 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 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 22 

[Docket No. FWS–R9–MB–2011–0094: 

91200–1231–9BPP] 

RIN 1018–AY30 

Eagle Permits; Revisions to 

Regulations Governing Take 

Necessary To Protect Interests in 

Particular Localities 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: We solicit public comment on 

possible revisions to regulations under 

the Bald and Golden Eagle Protection 

Act for permits to take eagles where the 

take is associated with, but not the 

purpose of, otherwise lawful activities. 

During the 2 years that the regulations 

have been in effect, some stakeholders 

have expressed concerns with some 

provisions of the rule. We are giving 

interested members of the public the 

opportunity to review the regulations 

and recommend revisions that would 

create a more efficient permit process 


tkelley on DSK3SPTVN1PROD with PROPOSALS