9920 Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Parts 13 and 22 

[Docket No. FWS–HQ–MB–2020–0023; 

FF09M30000–234–FXMB12320900000] 

RIN 1018–BE70 

Permits for Incidental Take of Eagles 

and Eagle Nests 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, are revising the 

regulations for the issuance of permits 

for eagle incidental take and eagle nest 

take. The purpose of these revisions is 

to increase the efficiency and 

effectiveness of permitting, improve 

clarity for the regulated community, and 

increase the conservation benefit for 

eagles. In addition to continuing to 

authorize specific permits, we created 

general permits for certain activities 

under prescribed conditions, including 

general permit options for qualifying 

wind-energy generation projects, power 

line infrastructure, activities that may 

disturb breeding bald eagles, and bald 

eagle nest take. We also made 

improvements to the specific permit 

requirements and process. We also 

revised permit fees and clarified 

definitions. 

DATES: Effective April 12, 2024. 

Information Collection Requirements: 

If you wish to comment on the 

information collection requirements in 

this rule, please note that the Office of 

Management and Budget (OMB) is 

required to make a decision concerning 

the collection of information contained 

in this rule between 30 and 60 days after 

the date of publication of this rule in the 

Federal Register. Therefore, comments 

should be submitted to OMB by March 

13, 2024. 

ADDRESSES:

Document availability: The finding of 

no significant impact, final 

environmental assessment, and 

supplementary information used in 

development of this rule, including a 

list of references cited, technical 

appendices, and public comments 

received are available at https://

www.regulations.gov in Docket No. 

FWS–HQ–MB–2020–0023. Documents 

and additional information can also be 

found at: https://www.fws.gov/ 

regulations/eagle. 

Information Collection Requirements: 

Written comments and suggestions on 

the information collection requirements 

should be submitted within 30 days of 

publication of this document to https:// 

www.reginfo.gov/public/do/PRAMain. 

Find this particular information 

collection by selecting ‘‘Currently under 

Review—Open for Public Comments’’ or 

by using the search function. Please 

provide a copy of your comments to the 

Service Information Collection 

Clearance Officer, U.S. Fish and 

Wildlife Service, 5275 Leesburg Pike, 

MS: PRB (JAO/3W), Falls Church, VA 

22041–3803 (mail); or Info_Coll@fws.gov 

(email). Please reference OMB Control 

Number 1018–0167 in the subject line of 

your comments. 

FOR FURTHER INFORMATION CONTACT: 

Jerome Ford, Assistant Director— 

Migratory Birds Program, U.S. Fish and 

Wildlife Service, telephone: (703) 358– 

2606, email: jerome_ford@fws.gov. 

Individuals in the United States who are 

deaf, deafblind, hard of hearing, or have 

a speech disability may dial 711 (TTY, 

TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. 

SUPPLEMENTARY INFORMATION: 

Background 

The U.S. Fish and Wildlife Service 

(Service) is the Federal agency delegated 

with the primary responsibility for 

managing bald eagles (Haliaeetus 

leucocephalus) and golden eagles 

(Aquila chrysaetos) under the Bald and 

Golden Eagle Protection Act 16 U.S.C. 

668–668d; [hereinafter the ‘‘Eagle 

Act’’]). The Eagle Act prohibits the take, 

possession, and transportation of bald 

eagles and golden eagles except 

pursuant to Federal regulations. The 

Eagle Act authorizes the Secretary of the 

Interior to issue regulations to permit 

the ‘‘taking’’ of eagles for various 

purposes, including when ‘‘necessary 

. . . for the protection of other interests 

in any particular locality,’’ provided the 

taking is compatible with the 

preservation of eagles (16 U.S.C. 668a). 

Regulations pertaining to eagle permits 

are set forth in title 50 of the Code of 

Federal Regulations (CFR) at 50 CFR 

part 22. These regulations authorize the 

take of eagles by an activity: They do 

not purport to nor can they authorize 

the underlying activity itself. 

In 2009, subsequent to the delisting of 

the bald eagle from the List of 

Endangered and Threatened Wildlife at 

50 CFR 17.11, the Service promulgated 

regulations (74 FR 46836, Sept. 11, 2009 

[hereinafter the ‘‘2009 Eagle Rule’’]) at 

50 CFR part 22 that established two new 

permit types for the incidental take of 

eagles and eagle nests. Incidental take 

means foreseeable take that results from, 

but is not the purpose of, an activity. 

These regulations were revised in 2016 

(81 FR 91494, December 16, 2016 

[hereinafter the ‘‘2016 Eagle Rule’’]) to 

extend tenure, update the Service’s 

Eagle Management Unit (EMU) 

boundaries, require preconstruction 

monitoring for wind-energy projects, 

and to amend the preservation standard. 

The 2016 Eagle Rule was supported by 

a programmatic environmental impact 

statement (PEIS), and the Service’s final 

decision was described in a record of 

decision, both of which are available at 

https://www.regulations.gov in Docket 

No. FWS–R9–MB–2011–0094. 

On September 14, 2021, the Service 

published an advance notice of 

proposed rulemaking (ANPR) to inform 

the public of changes the Service is 

considering that expedite and simplify 

the permit process authorizing 

incidental take of eagles (86 FR 51094). 

The ANPR also advised the public that 

the Service may prepare a draft 

environmental review pursuant to the 

National Environmental Policy Act of 

1969, as amended. In the ANPR, we 

invited input from Tribes, Federal 

agencies, State agencies, 

nongovernmental organizations, and the 

general public for any pertinent issues 

we should address, including 

alternatives to our proposed approach 

for authorizing eagle incidental take. 

The public comment period closed on 

October 29, 2021. The Service used 

these comments to prepare a proposed 

rule and a draft environmental 

assessment (DEA) which we released on 

September 30, 2022 (87 FR 59598). The 

60-day public comment period was 

extended to December 29, 2022 (87 FR 

72957, November 28, 2022). The DEA 

and proposed rule are available in 

Docket No. FWS–HQ–MB–2020–0023 

(available at https://

www.regulations.gov). 

Comments and materials we received, 

as well as supporting documentation we 

use in preparing the environmental 

analysis, are available for public 

inspection. For more information on 

public comments see the Response to 

Public Comments below. The Service 

also announces the availability of the 

finding of no significant impact (FONSI) 

for the Service’s final environmental 

assessment (FEA). The FONSI is the 

final step in the National Environmental 

Policy Act (NEPA) process for this eagle 

rulemaking action, which includes 

revisions to the regulations governing 

permits for incidental take of eagles and 

take of eagle nests. The FONSI and FEA 

are available in Docket No. FWS–HQ– 


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Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Rules and Regulations 9921 

MB–2020–0023 (available at https://

www.regulations.gov). 

With this rulemaking, we do not 

change the 2016 preservation standard 

or PEIS management objectives. The 

Eagle Act and existing regulations 

require that any authorized take of 

eagles be ‘‘compatible with the 

preservation’’ of bald and golden eagles 

(16 U.S.C. 668a). Under existing 

regulations, the preservation standard is 

defined as consistent with the goals of 

maintaining stable or increasing 

breeding populations in all eagle 

management units and the persistence 

of local populations throughout the 

geographic range of each species (50 

CFR 22.6). 

In 2009, the Service adopted different 

management criteria for bald eagles and 

golden eagles because of the different 

population statuses and growth rates of 

each species. We determined this 

approach is necessary both to achieve 

the preservation standard and to avoid 

being unnecessarily restrictive. We do 

not alter this approach with this 

rulemaking. In this rulemaking, the 

Service uses the recently updated 

population-size estimates and allowable 

take limits for bald eagles (87 FR 5493, 

February 1, 2022). 

This Rulemaking 

Overview 

The Service creates a new subpart E 

within 50 CFR part 22 for eagle permit 

regulations authorizing take that is 

necessary for the protection of other 

interests in any particular locality (eagle 

take for other interests). This new 

subpart includes revised provisions for 

processing specific permits and creates 

general permits. General permits 

authorize incidental take by activity 

type that occur frequently enough for 

the Service to have developed a 

standardized approach to permitting 

and ensure permitting is consistent with 

the preservation standard. These 

regulations also restructure the existing 

specific permit regulations. These 

regulations apply, regardless of whether 

infrastructure is constructed before or 

after the final regulations. 

We amend these regulations to better 

align with the purpose and need 

described in the 2016 PEIS. In the 2016 

Eagle Rule, the Service sought to: 

(1) increase compliance by 

simplifying the permitting framework 

and increasing certainty; 

(2) allow for consistent and efficient 

administration of the program by 

Service staff; 

(3) regulate based on best available 

science and data; and 

(4) enhance protection of eagles 

throughout their ranges by increasing 

implementation of avoidance, 

minimization, and mitigation of adverse 

impacts from human activities. 

In this rulemaking, we create a new 

subpart E for regulations governing the 

permitting of eagle take for other 

interests. We adopt two regulations for 

administering permitting: specific 

permits (§ 22.200) and general permits 

(§ 22.210). We further specify activityspecific eligibility criteria and permit 

requirements in four sections based on 

activity and type of eagle take: 

• incidental take for permitting wind 

energy (§ 22.250), 

• incidental take for permitting power 

lines (§ 22.260), 

• disturbance take (§ 22.280), and 

• nest take (§ 22.300). 

For clarity and consistency, we have 

also moved regulatory content on permit 

conditions to a new section (§ 22.215) 

and content on compensatory mitigation 

standards to a new section (§ 22.220). 

We have created new definitions to 

define ‘‘general permit’’ and ‘‘incidental 

take’’ and included clarifying 

modifications to the definitions of 

‘‘eagle management unit,’’ ‘‘eagle nest,’’ 

and ‘‘in-use nest’’ (§ 22.6). We have 

redesignated related regulations 

pertaining to permit requirements for 

take of golden eagle nests (moved from 

§ 22.75 to § 22.325) and permits for bald 

eagle take exempted under the 

Endangered Species Act (moved from 

§ 22.90 to § 22.400) to a new subpart E, 

with only the modification of a 

nonsubstantive change to the section 

title for § 22.325. Finally, we have 

adopted administrative updates to 50 

CFR part 13, General Permit Procedures, 

to update the text regarding 

information-collection requirements and 

the table of application fees. These 

changes to the designated section 

numbers for previous regulations are as 

follows: 

Previous regulations in 50 CFR 

part 22 Regulatory subject matter 

New sections in 

50 CFR part 22, 

subpart E 

§§ 22.80 and 22.85 ...................... Specific permits ...................................................................................................................

General permits ...................................................................................................................

§ 22.200 

§ 22.210 

§§ 22.80 and 22.85 ...................... Permit conditions ................................................................................................................. § 22.215 

§ 22.80 ......................................... Compensatory mitigation ..................................................................................................... § 22.220 

§ 22.80 ......................................... Wind energy project incidental take .................................................................................... § 22.250 

§ 22.80 ......................................... Power line incidental take ................................................................................................... § 22.260 

§ 22.80 ......................................... Eagle disturbance take ........................................................................................................ § 22.280 

§ 22.85 ......................................... Eagle nest take ................................................................................................................... § 22.300 

§ 22.75 ......................................... Golden eagle nest take for resource recovery operations ................................................. § 22.325 

§ 22.90 ......................................... Bald eagle take exempted under the Endangered Species Act ......................................... § 22.400 

Specific Permits and General Permits for 

Eagle Take 

Under these new and updated 

regulations, the Service will authorize 

eagle take using general permits and 

specific permits. General permits 

simplify and expedite the permitting 

process for activities that have relatively 

consistent and low risk to eagles and 

well-established avoidance, 

minimization, and compensatory 

mitigation measures. General-permit 

applicants self-identify eligibility and 

register with the Service. This includes 

providing required application 

information and fees and certifying that 

they meet eligibility criteria and will 

implement permit conditions and 

reporting requirements. 

The Service will implement general 

permits for the following activities: (1) 

certain categories of bald eagle nest take, 

(2) certain activities that may cause bald 

eagle disturbance take, (3) eagle 

incidental take associated with power 

line infrastructure, and (4) eagle 

incidental take associated with certain 

wind energy projects. These are 

described in more detail in the 

following sections. The Service will 

audit general permits to ensure 

applicants are appropriately interpreting 

and applying eligibility criteria and 

complying with permit conditions. 

Audits will include reviewing 

submitted application materials and 

reports. The Service will also request 

and review any plans or strategies 


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required by permit conditions, like 

adaptive management plans. 

The Service will continue to issue 

specific permits, which require 

submission of application materials to 

the Service for review and development 

of permit conditions. To maintain a 

review process adequate to meet the 

preservation standard for eagles, the 

Service retains the specific-permit 

approach for situations that have 

increased or uncertain risks to eagles. 

The applicant is responsible for 

submitting a qualifying application. The 

Service will determine, based on the 

materials provided, whether the 

application meets regulatory 

requirements. The Service is responsible 

for identifying and using the best 

available information in making these 

determinations. If an applicant is unable 

to meet Service data standards in 

applying, the Service may waive these 

data standards provided: (1) the 

application otherwise meets issuance 

criteria, (2) the Service has adequate 

information to estimate take, and (3) the 

waiver will be consistent with 

preservation of the eagle species. There 

is no process to petition the Service for 

a waiver; rather, this process will be at 

the Service’s discretion and 

documented in the permit file. Specific 

permit conditions must meet or exceed 

the requirements of general permits, 

except when not practicable or when 

site-specific data warrants 

customization. 

If the best available information 

indicates that continuing 

implementation of a general permit 

program is inconsistent with the 

preservation of bald eagles or golden 

eagles, the Service may suspend the 

general permit program temporarily or 

indefinitely. This suspension may apply 

to all or part of general-permit 

authorizations. Consistent with 50 CFR 

part 21 and part 22 permitting, Tribes or 

States may choose to be more restrictive 

than Federal regulations. Permittees 

must comply with Tribal and State laws 

and regulations to be in compliance 

with Federal eagle permits. 

Eagle Incidental Take Permits for Wind 

Energy 

With this rulemaking, the Service 

seeks to implement efficiencies in 

authorizing incidental take associated 

with wind energy projects. This final 

rule creates a general permit option for 

projects in areas that are low risk to 

eagles. We also revise the specific 

permit process to provide clarity to 

applicants and ensure processing is 

efficient and consistent with the 

preservation standard. With broader 

participation in permitting, the Service 

anticipates increased benefits to eagle 

populations as more projects implement 

avoidance, minimization, and 

mitigation measures. 

The Service uses a combination of 

eagle relative abundance and proximity 

to eagle nests as eligibility criteria for 

wind energy general permits. The 

Service uses the Cornell Status and 

Trends definition of relative abundance 

and relative abundance products 

(Cornell Lab of Ornithology, Ithaca, New 

York, available at: https://

science.ebird.org/en/status-and-trends). 

Relative abundance values determined 

for a project must be based on these 

publicly available Status and Trends 

relative abundance products for bald 

eagles and golden eagles. To help 

project proponents quickly determine 

eagle relative abundance, the Service 

will maintain an online mapping tool 

(https://arcg.is/CKLKy1). 

For first-time applicants, generalpermit eligibility is based on eagle 

relative abundance and proximity to 

eagle nests at the time of application. 

All turbines must be located in an area 

with eagle relative abundance less than 

the threshold identified by regulation 

(§ 22.250(c)(1)(ii) for both bald eagles 

and golden eagles). All turbines, 

including the space occupied by blades 

or other turbine infrastructure, must 

also be located at least 2 miles from a 

golden eagle nest and at least 660 feet 

from a bald eagle nest (§ 22.250(c)(1)(i)). 

Project proponents are expected to 

survey for eagle nests with due 

diligence and in accordance with any 

Service guidance for nest surveys. 

The Service considered allowing 

general permit applicants to select 

authorization for just one species. By 

requiring both species, the Service is 

able to reduce administration costs and 

keep the general permit process simple. 

Both species are widely distributed and 

co-occur in most States. The Service 

recognizes that the risk to each species 

is not uniform, and we factored in the 

relative risk to each species into the 

relative abundance criteria, the nest 

buffers, and the compensatory 

mitigation requirements. 

The Service added an eligibility 

criterion for wind energy projects that 

are renewing a general permit 

(§ 22.250(c)). A general permittee 

remains eligible to renew their permit, 

even if the Service revises eagle relative 

abundance thresholds or eagles 

construct a nest within the speciesspecific setback distances, as long as the 

project remains in compliance with all 

other general permit requirements. This 

includes provisions regarding the 

discovery of eagle remains or injured 

eagles remaining fewer than four eagles 

of the same species within a 5-year 

permit tenure (§ 22.210(b)(2)(i)). This 

eligibility applies to the turbines 

authorized under the original general 

permit and does not apply if there was 

a lapse in permit coverage or if any 

turbines are added to the project. It does 

apply if the turbines change ownership. 

If a project adds turbines, the new 

turbines must meet the qualifications for 

a first-time general permit 

(§ 22.250(c)(1)) when renewing a general 

permit for a project. If there is a lapse 

in coverage, the project must qualify for 

a first-time general permit 

(§ 22.250(c)(1)) and may then renew 

(§ 22.250(c)(2)), if eligible, or apply for 

a specific permit. 

The Service acknowledges that 

existing wind projects have less ability 

to adapt to the location-based nature of 

the general permit eligibility criteria (as 

defined in § 22.250(b)). After extensive 

review, the Service could not identify 

general permit eligibility criteria with 

which a project could self-certify that 

did not add extensive complexity or 

uncertainty. However, the Service 

retained the proposed eligibility 

criterion that any existing project that 

does not meet general permit eligibility 

criteria can submit an application for a 

specific permit (§ 22.200(b)) and request 

a letter of authorization to obtain a 

general permit (§ 22.250(c)). The Service 

will review all information provided in 

the application, including any sitespecific, pre- or post-construction data. 

The Service will issue a letter of 

authorization to apply for a general 

permit if we determine that the take 

rates at the existing project are likely to 

be consistent with or lower than eagle 

take rates expected at similar-sized 

wind facilities that qualify for general 

permits. If an applicant receives a letter 

of authorization, we may refund the 

specific-permit application fee, but to 

cover the cost of review, we will not 

refund the administration fee. The letter 

of authorization may require additional 

avoidance, minimization, or 

compensatory mitigation requirements 

if appropriate (for example, when 

needed to ensure consistency with 

general permit take rates). 

The Service estimates that more than 

80 percent of existing land-based wind 

turbines in the lower 48 States may be 

eligible for general permits. Wind 

projects in Alaska, Hawaii, island 

territories, and the offshore environment 

should apply for a specific permit if 

authorization for eagle incidental take is 

sought. Authorization for incidental 

take due to power line infrastructure is 

not included under a general permit for 

wind. The Service expects wind projects 

to avoid risk to eagles by ensuring 


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power line infrastructure is avian-safe, 

either by design or use of covers. In the 

rare circumstance associated power line 

infrastructure poses an electrocution or 

collision risk to eagles, authorization 

under the power line regulation is most 

appropriate. Specific permits are 

available for wind projects that do not 

meet general permit eligibility criteria or 

request the customization of a specific 

permit. We have created multiple tiers 

within specific permits: Tier 1, Tier 2, 

and Tier 2 with reimbursable agreement. 

Changes to the fee structure associated 

with these tiers are described in the 

Changes to the Fees section below. Tier 

1 specific permits are for lowcomplexity wind project applications 

(1) that can comply with general permit 

conditions or require only minor 

modifications, (2) where fatality 

estimates can be calculated with sitespecific data collected to Service 

standards and submitted using the 

Service’s information reporting template 

or where the applicant agrees to use the 

Service’s generalized fatality estimation 

process (i.e., using the nationwide 

specific permit priors) for specific 

permits, (3) that agree to use a Serviceapproved conservation bank or in-lieu 

fee program to complete required 

compensatory mitigation, and (4) where 

the Service’s decision can be 

categorically excluded under NEPA. 

The Service anticipates expediting Tier 

1 specific permit application processing. 

Tier 2 specific permits are for 

moderately complex applications that 

(1) need modifications to general-permit 

conditions, including negotiated 

compensatory-mitigation requirements 

or (2) for which fatality estimation 

requires more evaluation of site-specific 

data, or (3) negotiation of other 

requirements. For the highest 

complexity applications, such as 

applications that require more extensive 

permit-condition negotiations, cannot 

be categorically excluded from 

additional procedural requirements of 

NEPA, or other unique circumstances, 

the Service will charge the Tier 2 fee 

and require applicants, including 

government agencies, to enter into a 

reimbursable agreement with the 

Service to offset additional Service costs 

associated with this added complexity 

and review time in excess of 275 hours. 

The Service will no longer specify an 

authorized number of eagles that may be 

incidentally killed or injured on the face 

of general or specific permits. Permits 

will authorize the incidental take of 

eagles. This means that permittees will 

not be considered out of compliance for 

exceeding an authorized level of eagle 

take. General permittees, however, must 

remain in compliance with the 

discovered eagle provisions, which are 

different from estimated eagle take. 

However, to ensure consistency with 

our preservation standard, we will 

estimate the number of eagles taken for 

internal tracking and calculating 

compensatory mitigation requirements. 

The Service will track estimated take 

that has been authorized for bald eagles 

and golden eagles within each eagle 

management unit (EMU) and local area 

population (LAP). We will use the bestavailable information and tools in 

making these calculations, including 

compiling information on discovered 

eagle remains and injured eagles, 

applying statistical modeling to estimate 

eagle take that has been authorized 

under permits, and comparing estimated 

take and provided compensatory 

mitigation with EMU take limits and 

LAP thresholds. 

The Service received numerous 

comments regarding the Service-led 

monitoring in the proposed rule. The 

Service reexamined the potential of 

using operations and maintenance staff 

to conduct concurrent monitoring 

instead. Ultimately, we decided to 

reduce the requirement for general 

permits to concurrent monitoring 

because that will still provide the 

information the Service requires while 

resulting in a substantial cost savings to 

the regulated community compared to 

the proposed Service-led monitoring. 

The Service intends to publish 

monitoring standards for specific 

permits that will be designed to 

maximize flexibility to the regulated 

community so permittees can select the 

best fatality monitoring method for their 

project, while still giving the Service the 

information needed to ensure we are 

authorizing take consistent with our 

preservation standard. Monitoring must 

be conducted in accordance with permit 

conditions and, if available, Service 

guidance. The Service may use 

administration fees to validate 

concurrent monitoring methods and 

analyze concurrent monitoring data. 

Under specific permits, additional 

monitoring may be included in the 

permit conditions, such as for 

permittees wanting to reduce mitigation 

requirements by implementing 

experimental technology or postconstruction monitoring. The Service 

will require only third-party monitoring 

when warranted (e.g., addressing 

compliance concerns or applying 

controversial approaches). 

Compensatory mitigation is required 

for general permits. General permits 

must obtain eagle credits from a Serviceapproved conservation bank or in-lieu 

fee program based on the hazardous 

volume of the project (§ 22.250(f)(7)(ii)). 

An eagle credit is the amount of 

compensatory mitigation needed to 

offset the take of an eagle. Serviceapproved in-lieu fee programs and 

conservation banks will be authorized 

for particular EMUs, consistent with the 

methodology approved by the Service. 

However, the Service will retain the 

right to direct funds from an EMU-scale 

to an LAP-scale, if the Service identifies 

concerns with a particular LAP. 

Compensatory mitigation is also 

required for specific permits for wind 

energy. Applicants must include their 

expected method of compensatory 

mitigation in the permit application 

(§ 22.250(f)(7)(i)). The Service will 

derive the amount of compensatory 

mitigation required using a projectspecific fatality estimate, based upon 

either site-specific data that meets the 

Service’s data collection standards or 

the Service’s generalized fatality 

estimation process (i.e., using the 

nationwide specific permit priors). 

These priors are probability 

distributions, created using information 

from a range of projects under Service 

review and others described with 

sufficient detail in Whitfield (2009), that 

describe exposure and collision 

probability in the Service’s collision risk 

model before any site-specific 

information is taken into account. All 

compensatory mitigation for golden 

eagles must be performed at a 1.2:1 

(mitigation:take) ratio. The Service 

expects Tier 1 specific permits to use a 

Service-approved conservation bank or 

in-lieu fee program to meet mitigation 

requirements. Tier 2 specific permit 

applications may use a Serviceapproved conservation bank or in-lieu 

fee program or submit a plan to the 

Service for implementing compensatory 

mitigation consistent with § 22.200 and 

Service-wide mitigation policies. To 

ensure consistency with the 

preservation standard, wind energy 

projects that are eligible for general 

permits but choose to obtain a specific 

permit will be required to meet or 

exceed the general permit mitigation 

requirements. Compensatory mitigation 

is not required for wind turbine 

infrastructure that is considered 

baseline. Baseline, as described in the 

2016 PEIS, refers to infrastructure that 

existed and was operating in its current 

configuration and size prior to 

September 11, 2009. 

The Service retains the maximum 30- 

year tenure for specific permits for wind 

projects. This tenure is appropriate 

given the amount of time that wind 

energy projects typically operate on the 

landscape. Specific permits may be 

requested and authorized for any 

duration (in 1-year increments) up to 30 


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years. General permits for wind projects 

are valid for 5 years from the date of 

registration. Upon expiration of general 

permits, project applicants may reapply 

and obtain a new 5-year general permit. 

General permits for eagle take cannot be 

amended during each 5-year term. 

For both general and specific permits, 

the Service will continue requiring 

implementation of all practicable 

avoidance and minimization measures 

to reduce the likelihood of take. These 

conditions would likely include 

reducing eagle attractants at a site (e.g., 

minimizing prey populations or perch 

locations), minimizing human-caused 

food sources at a site (e.g., roadkill, 

livestock), and implementing adaptivemanagement plans that modify facility 

operations at a site if certain 

circumstances occur, such as when a 

certain number of eagle mortalities are 

detected. General permit conditions will 

be nonnegotiable and fixed for the term 

of the permit. Renewed general permits 

will have the most current version of 

general permit conditions. Specific 

permit conditions will use the general 

permit conditions as a foundation but 

may be modified or added to as 

appropriate. The appropriate fee tier 

will be charged based on the amount of 

negotiation and modification required. 

Permittees must train relevant 

employees to look for, recognize, and 

report eagle take as part of their regular 

duties. Permit conditions will specify a 

minimum frequency required (e.g., once 

every 3 months) and require that trained 

employees visually scan for injured 

eagles and eagle remains while in the 

vicinity of project infrastructure. Permit 

conditions will direct disposal (e.g., 

shipped to National Eagle Repository) 

and reporting (e.g., summary emailed to 

the Service) requirements and timelines. 

When three or four eagles of one 

species are discovered within the 

general permit tenure, we require 

additional conditions. If three eagles of 

one species are found, the permittee 

must notify the Service and implement 

an adaptive management plan. If a 

fourth eagle of that same species is 

found, these steps must be repeated, and 

the project would no longer qualify for 

future general permits. The discoveredeagles provision aids in identifying the 

rare project eligible for a general permit 

but experiencing more take than other 

projects covered by general permits. By 

requiring notification from projects 

operating under general permits if three 

and four eagles are found, we ensure 

that the overall take authorized by the 

general-permit program remains within 

the range we predict and is 

appropriately offset to the degree 

necessary for the preservation of each 

eagle species. It is important to note that 

found eagle remains at any project 

represent only the minimum number of 

eagles that may have been killed by a 

project. Depending on the probability of 

detection, which is determined by 

factors like site topography and 

vegetation, the number of eagles 

actually taken may be close to the 

number of eagles found, or the number 

actually taken could be substantially 

higher. 

We will allow time for project 

proponents to adjust to these amended 

regulations. Project proponents who 

have submitted a permit application 

will have 6 months from the publication 

date of the final rule to choose whether 

to have their application reviewed and 

administered under all the provisions of 

the prior regulations, as amended in 

2016, or all the provisions of the current 

regulations. Any application fees paid 

prior to the publication date of the final 

rule may be used to pay for application 

and administration fees required under 

the new regulations. However, the 

Service will not refund any application 

fees paid prior to the publication date of 

the final rule because the Service will 

have already undergone substantial 

processing of the application. Project 

proponents who hold a permit under 

the 2016 regulations may continue 

under that permit’s conditions until the 

permit expires. Permittees that want to 

modify existing permits to comply with 

current regulations may contact their 

permitting office to determine if a 

substantive amendment request or a 

new application is most appropriate. 

Eagle Incidental Take Permits for Power 

Lines 

Power line entities have expressed 

interest in obtaining authorization for 

eagle incidental take caused by 

powerline infrastructure; however, a 

number of barriers have limited 

participation in permitting. We create a 

general permit option for power line 

entities that can comply with 

standardized conditions. We also revise 

the specific permit process to provide as 

an option for power line entities that 

require more customization. The Service 

anticipates increased benefits to eagle 

populations as more power line entities 

obtain permits and implement required 

avoidance, minimization, and 

mitigation measures. 

All power line entities are eligible for 

general permits. The Service 

recommends a general permit for any 

power line entity that can comply with 

standardized general permit conditions. 

Specific permits are available for power 

line entities that seek customized permit 

conditions. We have created multiple 

tiers within specific permits: Tier 1, Tier 

2, and Tier 2 with reimbursable 

agreement. Tier 1 specific permits are 

for low-complexity applications that 

require minor modifications to the 

general-permit conditions and where 

the Service’s decision can be 

categorically excluded under NEPA. 

The Service anticipates expediting Tier 

1 application processing. Tier 2 specific 

permits are for moderately complex 

applications that can be categorically 

excluded from additional NEPA 

procedural requirements and need 

unique or substantive modifications to 

the general-permit conditions, such as 

negotiated compensatory mitigation 

requirements. In the rare circumstance a 

power line application exceeds 275 

hours in review time, the Service will 

charge the Tier 2 fee and require 

applicants, including government 

agencies, to enter into a reimbursable 

agreement with the Service to offset 

additional Service costs associated with 

this added complexity and increased 

review time exceeding 275 hours. 

Exceeding 275 hours is expected only in 

rare cases; for example, if the Service’s 

decision cannot be categorically 

excluded under NEPA or permit 

conditions require extensive 

negotiations. 

The Service will not specify a number 

of eagles authorized on the face of 

general or specific permits. However, 

the Service will use annual reports 

submitted by permittees to estimate the 

number of eagles taken for internal 

tracking and to ensure consistency with 

our preservation standard. We will use 

the best-available information and tools 

in making these calculations. The 

monitoring required for general permits 

and most specific permits will be 

limited to concurrent monitoring by 

operations and maintenance personnel 

while onsite. Monitoring must be 

conducted in accordance with permit 

conditions and, if available, Service 

guidance. The Service may use 

administration fees to validate 

concurrent monitoring methods and 

analyze concurrent monitoring data. 

Specific permits may require concurrent 

monitoring or additional monitoring. 

For both general and specific permits, 

the Service will require implementation 

of all practicable avoidance and 

minimization measures to reduce the 

likelihood of take. To aid in assessing 

what measures are practicable to 

implement, the Service will refer to the 

Avian Power Line Interaction 

Committee (APLIC) suggested practices, 

including Suggested Practices for Avian 

Protection on Power Lines: The State of 

the Art in 2006 and Reducing Avian 

Collisions with Power Lines: The State 


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of the Art in 2012, as well as updated 

versions or new suggested practice 

documents, as they become available. 

General permits for power line entities 

include the conditions listed in 

§ 22.260(d). Specific permit conditions 

will use the general permit conditions 

as a foundation but may be modified or 

added to as appropriate. The 

appropriate fee tier will be charged 

based on the amount of negotiation and 

modification required. 

As part of general-permit conditions, 

the Service requires power line entities 

to develop four strategies: collision 

response, proactive retrofit, reactive 

retrofit, and shooting response, as 

defined in § 22.260(b). The Service 

encourages power line entities with an 

Avian Protection Plan (APP) to 

incorporate these strategies into the 

APP. However, power line entities may 

choose to include these four strategies 

as part of an APP or as stand-alone 

strategies. 

Collision response strategy describes 

the process to identify collision-caused 

mortality events, evaluate factors, and 

implement risk-reduction strategies (see 

§ 22.260(b) and (d)). The Service expects 

risk-reduction strategies to be 

commensurate with future collision 

risk. For example, an entity would 

implement all practicable risk-reduction 

strategies for a power-line segment with 

repeat mortality events in a high-risk 

location but for power-line segments 

with rare or no known collision events, 

no action or continued monitoring may 

be appropriate. 

Proactive retrofit strategy describes 

how existing infrastructure will be 

converted to avian-safe (as defined in 

§ 22.260(b)) within a set timeline (see 

§ 22.260(b) and (d)). Investor-owned 

utilities must have a 50-year proactive 

retrofit strategy to convert poles in highrisk eagle areas to avian-safe; therefore, 

10 percent of poles in high-risk eagle 

areas must be converted during each 

general-permit 5-year tenure 

(§ 22.260(d)(2)(i)). High-risk eagle areas 

occur where eagles are likely to be 

present and interact with power line 

infrastructure. Conversely, low-risk 

eagle areas occur where eagles are not 

present or unlikely to interact with 

power line infrastructure, such as urban 

areas. Applicants will be responsible for 

the assessment of high-risk eagle areas, 

based on this standard. Other utilities 

(publicly owned or cooperative) must 

have a 75-year proactive retrofit strategy 

to convert poles in high-risk eagle areas 

to avian-safe; therefore, 7 percent of 

poles in high-risk eagle areas must be 

converted during each permit tenure 

(§ 22.260(d)(2)(ii)). The Service uses the 

U.S. Energy Information Administration 

definitions for investor-owned, publicly 

owned, and cooperative utilities. The 

Service recognizes that this strategy may 

take more time than the other strategies 

to develop. As a condition of the general 

permit, general permittees that do not 

already have a proactive retrofit strategy 

will have 3 years from the effective date 

of this final rule to develop one. 

Reactive retrofit strategy describes 

how infrastructure will be retrofit to 

avian-safe in response to an eagle 

electrocution or death (see § 22.260(b) 

and § 22.260(d)). A total of 13 poles or 

a half-mile segment of line must be 

retrofit. The typical pole selection is the 

pole that caused the electrocution and 

six poles in each direction. However, if 

retrofitting other poles in the circuit 

provides more benefit to eagles, those 

poles may be retrofitted by prioritizing 

the highest risk poles closest to the 

electrocution event. Poles outside of the 

circuit that caused the electrocution 

may be counted towards this retrofit 

requirement only if all poles in the 

circuit are already avian-safe. 

Converting poles to buried line is an 

avian-safe retrofit. 

To implement the above strategies, 

power line entities evaluate the 

electrocution or collision incident 

within 90 days and implement a 

response within 1 year of the incident. 

If extenuating circumstances occur in 

implementing the strategies, such as 

catastrophic weather, extensive fire, or 

other event that substantively disrupts 

power delivery, the power line entity 

must do the following: (1) Document 

and maintain records of the relevant 

circumstances, including why 

circumstances are extenuating and the 

plan to implement the delayed retrofits 

or collision reduction measures. (2) If 

implementation of delayed retrofits or 

collision reduction measures will 

extend past the expiration of the current 

general permit tenure and the permittee 

wants to renew the general permit, 

notify the Service at least 180 days prior 

to permit expiration. (3) If the general 

permit is renewed, any delayed retrofits 

or collision reduction measures must be 

implemented during the renewed 

general permit tenure. Otherwise, the 

permittee is no longer eligible for a 

general permit; however, the permittee 

may apply for a specific permit. 

Shooting response strategy describes 

the process the permittee follows when 

eagles are found killed or injured near 

power line infrastructure to identify if 

shooting is suspected, communicate 

with law enforcement, and identify and 

implement appropriate shootingreduction strategies (see § 22.260(b) and 

§ 22.260(d)). Power line entities are not 

responsible for law enforcement of nor 

liable for shooting events. At a 

minimum, power line entities must 

immediately contact the Service’s Office 

of Law Enforcement if an eagle is found 

killed or injured near power line 

infrastructure and shooting is suspected. 

Where there are repeated shooting 

events, the power line entity should 

develop other strategies, including 

coordinating with the relevant landmanagement agency if the death or 

injury occurs on government property. 

The Service is working with APLIC and 

others to develop resources and 

suggested practices. It is generally 

assumed that eagle remains or injured 

eagles discovered in the vicinity of 

power line infrastructure are taken by 

that power line infrastructure, unless 

necropsy or other information proves 

otherwise. 

In addition to the above strategies, 

power line entities must also consider 

eagles in siting and design for new 

construction and rebuild projects and 

ensure that all poles constructed in 

high-risk areas are avian-safe, as 

practicable. This provision is not 

required if it would impact human 

health and safety, require overly 

burdensome engineering, or have 

significant adverse effects on biological, 

cultural, or historical resources. 

Permittees must also train onsite 

personnel to scan for and appropriately 

report discovered eagle remains. Under 

specific permits, additional monitoring 

may be required. 

Compensatory mitigation is required 

for both general permits and specific 

permits. General permits must 

implement a proactive retrofit strategy 

(§ 22.260(d)(3)). Compensatory 

mitigation for specific permits will be 

determined for each application and 

included in permit conditions 

(§ 22.260(e)(2)). The Service will track 

take that has been authorized for bald 

eagles and golden eagles within each 

eagle management unit (EMU) and local 

area population (LAP). 

General permits for power line 

entities are valid for 5 years from the 

date of registration. Upon expiration of 

a general permit, a project applicant 

may reapply and obtain a new 5-year 

general permit. General permits cannot 

be amended during each 5-year term. 

The Service retains a maximum tenure 

of 30 years for specific permits for 

power line entities. The 30-year tenure 

is appropriate given the extended time 

power line infrastructure is expected to 

operate on the landscape. Specific 

permits may be requested and 

authorized for any duration (in 1-year 

increments) up to 30 years. 


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Eagle Disturbance Take Permits 

More than two-thirds of the eagle-take 

permits the Service currently issues are 

for incidental disturbance by activities 

conducted near bald eagle nests. 

Incidental take by disturbance is 

different from incidental take resulting 

in injury or mortality. To reduce 

complexity and improve clarity, this 

final rule creates a new stand-alone 

regulatory section for the incidental take 

of bald eagles or golden eagles by 

disturbance (§ 22.280). This regulation 

revises portions of the previous 

disturbance-take regulation (50 CFR 

22.80). The Service retains the existing 

definition of ‘‘disturb’’ (50 CFR 22.6) 

and clarifies further what does and does 

not constitute disturbance take 

(§ 22.280(b)). 

The Service creates general permits 

for eagle incidental take by disturbance 

in § 22.280. The Service uses the 

standardized approach to permitting 

based on the 2007 Activity-Specific 

Guidelines of the National Bald Eagle 

Management Guidelines (hereinafter the 

‘‘Guidelines’’). Between publication of 

the Guidelines in 2007 and nationwide 

eagle-population surveys in 2018, we 

estimate that bald eagle populations 

have quadrupled in the Lower 48 

United States (USFWS. 2021. Final 

Report: Bald Eagle Population Size: 

2020 Update. December 2020. Division 

of Migratory Bird Management, 

Washington DC U.S.A.). This includes 

growth into environments that are 

developed or in the process of being 

developed, increasing the demand for 

permits for eagle disturbance. By 

creating general permits, the Service 

will better align the conservation value 

gained from permitting with ensuring 

the preservation of eagles. We estimate 

about 85 percent of projects that cause 

disturbance will qualify for general 

permits. 

General permits are available for the 

disturbance of bald eagles when the 

disturbance will be a result of one or 

more of the following activities: 

building construction, linear 

infrastructure construction and 

maintenance, alteration of shorelines 

and water bodies, alteration of 

vegetation, motorized recreation, 

nonmotorized recreation, aircraft 

operation, prescribed burn operations, 

and loud intermittent noises. General 

permits cover conducting the activity, as 

well as pre-construction work, 

including geotechnical work. The 

Service did not include prescribed-burn 

operations in the proposed rule because, 

at the time, we considered such 

activities part of alteration of vegetation. 

However, after considering public 

comment on the issue and to ensure 

clarity for the regulated community, we 

included prescribed burning as a 

potential disturbance activity in the 

final regulation. Prescribed burning 

includes the footprint of the burn as 

well as where biproducts of the burn 

will be present, such as smoke, ash, or 

embers. Specific permits are available 

for disturbance to bald eagles from 

activities that are not eligible for general 

permits and any activity that may result 

in disturbance to golden eagles. 

The Service specifies distances in the 

regulation within which these activities 

may cause disturbance. Activities 

occurring farther than the distances 

specified below do not require a permit 

because they are unlikely to cause 

disturbance. Regularly occurring 

activities that occur within these 

distances and pre-date an eagle pair’s 

selection of a given nest site are 

assumed tolerated by the eagles, 

unlikely to cause disturbance, and do 

not require a permit. 

Tribes communicated concern about 

the issuance of general permits for nest 

disturbance and nest take on lands of 

Tribal interest. In response, the Service 

has restricted eligibility, and general 

permits are not available for nest 

disturbance or nest take for nest 

structures located in Indian country, as 

defined in 18 U.S.C. 1151. The Service 

considers the case-by-case review of 

specific permits appropriate for nests 

located in Indian country. This 

restriction does not apply when the 

Tribal government is the applicant for 

the permit on their own land. 

Hazing—the use of nonlethal methods 

to disperse eagles away from a site— 

does not constitute eagle disturbance 

unless it is adjacent to an in-use nest 

and disrupts eagle breeding activity. 

The intent of hazing is to deter eagle 

depredation (e.g., substantial injury to 

wildlife or agriculture) or reduce threats 

to human or eagle health and safety by 

temporarily displacing individual eagles 

from a location. We currently 

recommend nest buffers of 660 feet for 

bald eagles and 1 mile for golden eagles. 

The Service also considers activities 

that are conducted adjacent to a 

communal roost or foraging area do not 

constitute eagle disturbance and do not 

require a permit. ‘‘Communal roost site’’ 

and ‘‘foraging area’’ are defined by 

regulation (50 CFR 22.6). Removal of a 

foraging area has greater potential to 

cause disturbance; therefore, we further 

clarify here that activities that 

completely prevent the use of a foraging 

area may cause disturbance. A 

proponent of a project likely to fully 

prevent the use of a foraging area should 

apply for a specific permit, particularly 

if the activity will remove all foraging 

opportunities within 1 mile of an in-use 

nest. 

The Service will require monitoring 

eagles under general and specific 

disturbance-take permits. Monitoring 

will typically consist of collecting 

information sufficient to determine 

whether nestlings have fledged from the 

nest. Specific permits for disturbance 

may require monitoring as long as 

necessary to determine any impacts to 

the eagles for which take is authorized, 

including up to 3 years after permit 

tenure. The Service does not require 

compensatory mitigation for general 

permits. Compensatory mitigation may 

be required for specific permits to 

ensure the preservation of eagles. For 

example, any disturbance take of golden 

eagles that is not part of the Service’s 

previously established 2009 baseline or 

disturbance take of bald eagles that 

exceeds the LAP authorized-take 

threshold and is otherwise 

unsustainable requires implementation 

of compensatory mitigation. Monitoring, 

and if required, compensatorymitigation outcomes must be reported 

annually. 

For both specific and general 

disturbance permits, we will require 

that applicants provide the coordinates 

of the nest(s) for which they are 

requesting disturbance authorization. 

Precise location information is 

necessary for both the Service staff who 

conduct eagle-population management 

and law enforcement. For disturbance 

take, we retain a 5-year tenure for 

specific permits and implement a 1-year 

tenure for general permits. These 

permits are renewable in the rare 

circumstance that an activity is likely to 

cause disturbance to eagles over a long 

period of time. In the rare event that the 

Service’s decision to issue a disturbance 

specific permit cannot be categorically 

excluded under NEPA, a reimbursable 

agreement may be used to cover costs 

associated with the preparation of an 

environmental analysis and compliance 

with the procedural requirements of 

NEPA. 

For both specific and general permits, 

we require permit conditions that 

include implementation of measures to 

avoid and minimize, to the extent 

practicable, the risk that authorized 

activities may disturb eagles. To 

determine practicability, the Service 

will consider eagle-population status, 

the known efficacy of the measure, and 

the potential burden on the permittee. 

For specific permits, applicants will 

have the opportunity to provide input 

into these permit conditions. Generalpermit conditions will be standardized 

by activity type based on effective 


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techniques that have been consistently 

and successfully used in specific 

permits for the past 10 years or more. 

The Service uses this rulemaking to 

clarify that the regulations for 

disturbance take of eagles will be used 

to authorize the incidental take of eagle 

nests. Incidental take of nests caused by 

activities includes actions that agitate or 

bother eagles to a degree that interferes 

with normal breeding and sheltering 

behavior. For example, prescribed burns 

may result in the disturbance of 

breeding eagles through smoke exposure 

and may disrupt breeding activity by 

unintentionally taking nests when a fire 

moves unexpectedly across break lines 

or into tree canopies. Authorization is 

provided only for incidental take of 

nests that occurs after application of all 

practicable avoidance and minimization 

measures. Incidental take authorization 

does not include take caused by lack of 

due diligence or negligence; for 

example, failure to identify nest 

locations prior to conducting an 

activity. 

To date, incidental take of nests has 

been a rare issue and, therefore, is 

currently most appropriately addressed 

under specific permits. However, the 

Service will regularly review this issue 

with other implementation decisions. 

Applicants requesting incidental take of 

nests must demonstrate that incidental 

nest take cannot be practicably avoided. 

The Service does not anticipate 

authorizing the incidental take of nests 

for development activities. In the 

Service’s experience, developers have 

sufficient knowledge of the landscape 

and control of their activity to make 

incidental nest take practicably 

avoidable during development. 

Eagle Nest Take Permits 

The Service has revised the 

regulations for eagle nest take (§ 22.300). 

This final rule creates a general permit 

for the take of bald eagle nests in certain 

circumstances. We retain specific 

permits for the take of any golden eagle 

nest as well as for the take of bald eagle 

nests that is not eligible for a general 

permit. We also clarify that relocation or 

obstruction of a nest constitutes nest 

take. 

We retain the four justifications for 

authorizing eagle nest take, which are 

emergency, health and safety, removal 

from human-engineered structures, and 

other purposes. We also add protection 

of species on the List of Endangered and 

Threatened Wildlife (§ 17.11) as a 

purpose for eagle nest take. General 

permits are limited to bald eagle nest 

take for the purposes of emergencies, 

protection of health and safety, and 

protection of human-engineered 

structures. In Alaska only, bald eagle 

nests may also be taken for other 

purposes. After more than 10 years of 

issuing permits to remove bald eagle 

nests, the Service has developed 

standard permit conditions that can be 

applied to authorizing the take of bald 

eagle nests using general permits for 

these purposes. 

We will continue to require specific 

permits for any take of golden eagle 

nests because these situations have 

unique conditions that require sitespecific permitting and because of the 

population status of golden eagles. We 

will also continue to require a specific 

permit for take of bald eagle nests under 

the ‘‘other purposes’’ in the lower 48 

States because the Service must ensure 

that those permits provide a net benefit 

to eagles. The net-benefit determination 

depends on the circumstances of the 

purpose requiring nest take. In Alaska, 

general permits are appropriate because 

the Service has already developed and 

implemented standard conditions there 

and Alaska has a robust bald eagle 

population. 

In this rulemaking, the Service adds a 

fifth justification for authorizing the 

take of eagle nests when necessary for 

the protection of species on the List of 

Endangered and Threatened Wildlife 

(§ 17.11) under the Endangered Species 

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

1531–1544). This activity would require 

a specific permit issued only to a 

Federal, State, or Tribal agency 

responsible for implementing actions for 

the protection of the species of concern. 

With expanding bald eagle populations, 

the Service anticipates an increase in 

situations where bald eagle management 

may be a necessary part of 

implementing recovery plans. 

The Service will not require 

monitoring for general permits. After 

more than a decade of annual 

monitoring reports, we expect a 1-year 

permit tenure to better capture the 

necessary information to meet the 

preservation standard than requiring 

monitoring. In addition, a 1-year permit 

term without required monitoring is less 

burdensome to the applicant. Specific 

permits may require monitoring—for 

example, a permittee may need to 

monitor the area near where a nest was 

removed for one or more seasons to 

determine whether the affected eagles 

relocate and successfully fledge young. 

To be conservative, we will assume that 

each nest take authorized by the general 

permit will result in a loss of breeding 

productivity for one breeding season. 

We may change this practice in the 

future if data warrants a change in our 

assumption. 

The Service will not require 

compensatory mitigation for nest-take 

general permits, unless it is for other 

purposes in Alaska where compensatory 

mitigation is required to achieve the 

associated net benefit. General permits 

for nest take are limited to bald eagle 

nests in situations that are typically 

hazardous to eagles or where eagles 

benefit from resolving the situation 

requiring the permit. Compensatory 

mitigation is also not generally 

warranted for nest-take general permits 

because of the improving population 

status of bald eagles. Compensatory 

mitigation may be required for specific 

permits. In determining compensatory 

mitigation, the Service will consider the 

purpose for the nest take, whether nest 

take reduces risk to eagles, and the 

population status of the species. A 

specific-permit applicant may meet this 

requirement by obtaining the Serviceapproved number of eagle credits from 

a Service-approved conservation bank 

or in-lieu fee program. The applicant 

may also propose other types of 

compensatory mitigation for Service 

approval. 

For both specific and general nest take 

permits, we will require that applicants 

provide the coordinates of the nest(s) for 

which they are requesting take 

authorization. Precise location 

information is necessary for both the 

Service staff who conduct eaglepopulation management and law 

enforcement. The permit application 

may also require supporting 

documentation for certain types of 

requests (for example, an arborist report 

in the case of hazard-tree removal). 

For nest take, we retain the 5-year 

limit for specific permits and implement 

a 1-year limit for general permits. These 

permits are renewable. The Service 

considered providing for a longer 

general-permit tenure; however, doing 

so would require that the Service 

require further monitoring from all 

general permittees that was inconsistent 

with the purpose of general permits. We 

have crafted these reduced tenure and 

permit-per-nest requirements to better 

ensure general permits for nest take are 

compatible with the preservation of 

eagles. 

Permit conditions will include the 

applicable regional-breeding-season 

start date. Additionally, the general 

permit will authorize the removal of a 

specific nest. General permits may 

authorize bald eagle nest removal from 

the nesting substrate at the location 

requested and the location of any 

subsequent nesting attempts by the 

eagle pair within one-half mile of the 

location requested for the duration of 

the permit if the subsequent nest reVerDate Sep<11>2014 21:12 Feb 09, 2024 Jkt 262001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\12FER2.SGM 12FER2

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creates the emergency, safety, or 

functional hazard of the original nest. 

Take of an additional eagle nest more 

than one-half mile away requires an 

additional permit. 

Changes to Definitions and Procedures 

As part of this rulemaking, we have 

narrowed the definition of ‘‘eagle nest’’ 

to exclude nest structures on failed 

nesting substrate. Previously, we 

defined ‘‘eagle nest’’ to mean any 

assemblage of materials built, 

maintained, or used by bald eagles or 

golden eagles for the purpose of 

reproduction. We have added a 

qualification that it must be possible for 

eagles to reuse the nesting substrate for 

breeding purposes. Nesting substrate 

that, due to natural circumstances, is no 

longer and will never again be available 

to eagles for functional use will no 

longer meet the regulatory definition of 

an eagle nest. This definition of ‘‘eagle 

nest’’ does not allow for modification of 

alternate (unused) nest substrate to a 

degree that prevents future breeding 

activity. These activities will continue 

to constitute nest take. 

We revise this definition to address 

uncommon but occasional instances in 

which eagle nests or nesting substrate 

are impacted by weather or other 

natural factors to such a degree that they 

become permanently unusable to eagles 

for reproductive purposes. For example, 

if a nest tree falls and the bald eagle nest 

retains its structure, the nest would no 

longer retain the official designation of 

an eagle nest as the substrate was 

substantively changed by the nest tree 

falling. A permit is not necessary for 

individuals and organizations to destroy 

and remove materials that formerly held 

the designation of an eagle nest but no 

longer meet the definition. However, 

individuals and organizations may not 

collect these materials nor possess them 

beyond what is necessary to dispose of 

the nest. Eggs, feathers, and other eagle 

parts are often naturally incorporated 

into nests with time. The Eagle Act 

prohibits possession, transportation, 

and sale of these items, either 

individually or in their incorporated 

state with former nesting materials, 

without Federal authorization. 

We also have revised the definition of 

‘‘in-use nest’’ to clarify that the eggs 

referred to in the definition of in-use 

nest must be viable. As with our 

revision of the definition for ‘‘eagle 

nest,’’ this change ensures that our 

definition is more relevant to what is 

biologically important to eagles. 

Nonviable eggs may persist in a nest or 

even become incorporated into a nest’s 

structure. However, by their nature, 

these eggs will not hatch. Under 

previous definitions, permittees have 

been prevented from removing what is 

otherwise an alternate nest because of 

the presence of nonviable eggs outside 

of breeding season. In implementing the 

revised definition, the Service presumes 

that eggs are viable unless the applicant 

provides evidence to document 

otherwise (e.g., absence of adults for 

several days, presence of eggs out of 

breeding season). 

For clarity, we add a definition of 

‘‘general permit’’ to 50 CFR part 22 to 

distinguish general permits from the 

definition of ‘‘permit’’ in 50 CFR 10.12. 

We interpret the statutory language 

requiring a permit to be procured from 

the Service for take of bald eagles for 

any purpose to include general permits 

set forth in this document as well as the 

more typical individual or specific 

permits (see 16 U.S.C. 668a). 

We clarify in the regulation pertaining 

to illegal activities (50 CFR 22.12) that 

obtaining an eagle permit of any type for 

a continuing activity does not in and of 

itself resolve take that occurred before 

issuance of the permit. This provision is 

currently in § 22.80(e)(8) but applies to 

all of the regulations in part 22 and is 

therefore better located in § 22.12. We 

also have updated the definition of 

‘‘eagle management unit’’ and include a 

definition of ‘‘incidental take’’ to 

improve transparency to the public and 

general-permit applicants. 

Along with this final rule, the Service 

will also implement the three following 

changes to our implementation of 

incidental-take permits for eagles. We 

will apply the baseline take for golden 

eagles established in the 2009 EA 

nationwide. Currently, baseline take for 

golden eagles is limited to only west of 

the 100th meridian. In the 2016 PEIS, 

the Service conservatively assumed that 

all authorized take of golden eagles east 

of the 100th meridian should require 

compensatory mitigation regardless of 

whether the authorized take was 

occurring prior to September 11, 2009, 

and was considered part of the baseline. 

However, recent information on the 

population status of golden eagles in the 

Eastern United States demonstrates that 

this conservative restriction is not 

necessary to ensure that take of golden 

eagles is compatible with the 

preservation standard, so we are 

eliminating this unnecessary restriction. 

We will also update the number of 

bald eagles debited from EMU take 

limits and LAP thresholds when 

authorizing nest disturbance, based on 

new information. Before this change, the 

Service assumed a loss of productivity 

equivalent to 1.33 bald eagles per year 

for each authorized nest disturbance in 

the United States, except in the 

Southwest, where we assumed a loss of 

0.95 bald eagles per year. Based on 

recent Service analysis of new 

information, we will update the 

nationwide debit from 1.33 to a value of 

0.26 bald eagles per year. However, 

because of low sample sizes in our 

analysis, we are not updating the debit 

in the Southwest, which will remain at 

0.95 bald eagles per year. 

Finally, we will remove the 10 

percent threshold for unauthorized 

mortality in a local area population 

(LAP) that was introduced with the 

2016 rulemaking. We have since 

concluded that georeferenced data on 

unauthorized eagle mortalities are 

sparse and biased, making meaningful 

evaluation and application of 

unauthorized take at the LAP scale 

difficult or impossible. 

Changes to Fees 

The Service charges application fees 

to cover the costs of administering 

regulations and permits. This includes 

paying for staff to: provide technical 

assistance and guide applicants through 

the permitting process, review 

application information, assess the 

biological impact and environmental 

effects of the proposed activity, and 

evaluate whether the applicant meets 

eligibility and issuance criteria. For 

specific permits, these actions are 

primarily conducted before permit 

issuance. For general permits, these 

actions will be conducted as part of an 

auditing process to ensure applicants 

are correctly interpreting eligibility 

criteria and complying with permit 

conditions and requirements. Fees are 

also used to pay for developing and 

maintaining an online permitregistration system and database. 

General-permit fees include an 

administration fee. In response to public 

comments, the Service adjusted the 

administration fee to reflect the 

elimination of the proposed Service-led 

monitoring. Instead, the administration 

fee will be used to maintain and groundtruth the permit program to ensure it is 

compatible with the preservation of 

eagles, including to: (1) better 

understand eagle population dynamics, 

including the risk to eagles from 

authorized activities; (2) better 

understand mitigation outcomes, 

including researching and validating 

avoidance, minimization, and 

compensatory mitigation measures; (3) 

address and improve various 

components of the eagle permitting 

program, including gathering and 

analyzing demographic data, GPS 

tagging and tracking eagles for 

programmatic monitoring, and 

researching and validating monitoring 


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measures. Some portion of the 

administration fees may also be used, as 

necessary, to fund Service staff time to 

manage and implement the general 

permit administration fees. Specificpermit fees also include an 

administration fee. We will use the 

administration fee for specific permits 

for the same purpose as application 

fees—to fund staff for the administration 

of specific permits, including 

environmental review and support of 

the online permit system and database. 

The permit fee and administration fee 

must be paid at the time of application. 

We consider permit renewals to be 

permit applications for fee purposes. 

General permits cannot be amended. 

However, specific permits may be 

amended during their tenure. There are 

three types of amendments. 

Administrative amendments are 

administrative changes, including name 

and address information. Consistent 

with § 13.11(d)(5), there is no fee 

charged for administrative amendments. 

Substantive amendments are those that 

pertain to the purpose and conditions of 

the permit. Consistent with 

§ 13.11(d)(5), we will charge an 

amendment fee. The Service will charge 

an amendment fee and an 

administration fee for permitteerequested substantive amendments that 

require new analysis, such as 

modifications that result in reestimating take, re-evaluating 

compensatory mitigation requirements, 

or requiring additional environmental 

review to comply with procedural 

requirements under NEPA (§ 22.200(e)). 

For general permits, the Service 

adopts a scaled administration-fee 

structure to accommodate different sizes 

of projects. For power lines, generalpermit administration fees are separated 

into Tier 1 for non-investor-owned and 

Tier 2 for investor-owned. The Service 

uses the U.S. Energy Information 

Administration’s definition of investorowned utilities as ‘‘large electric 

distributors that issue stock owned by 

shareholders’’ (https://www.eia.gov/). 

For wind energy, general-permit 

administration fees are separated into 

Tier 1 for distributed and community 

wind projects and Tier 2 for utility wind 

projects. We use the Service’s LandBased Wind Energy Guidelines 

definition of these terms (https://

www.fws.gov). The Service may revise 

the interpretation of these terms in 

future rulemakings. 

The Service retains the existing tiers 

of commercial and noncommercial for 

disturbance and nest-take permits. 

Applications are commercial, unless (1) 

an individual applies using section A of 

the application form for activities on 

that individual’s privately owned 

property for individual purposes, or (2) 

a government or not-for-profit entity 

applies for take associated with public 

property using section B of the 

application form and includes 

documentation demonstrating its 

qualifying status (e.g., documentation 

that the entity is a government agency 

or that the entity is a current, recognized 

nonprofit organization by the Internal 

Revenue Service (IRS) as described in 

section 501(c)(3)). 

For specific permits, the Service 

estimates a wide range of potential 

permit costs. Costs would vary based on 

factors like the complexity of the 

application or the required 

environmental review. To accommodate 

this wide range, the Service includes a 

tiered fee structure in § 13.11(d) and 

describes criteria for each tier in 

§ 22.200(c)(2)(vii) and below. For 

incidental take, the Service will charge 

a Tier 1 application fee when specificpermit conditions require negligible 

modification from the standardized 

general-permit conditions, including the 

use of a Service-approved in-lieu fee 

program or conservation bank for 

compensatory mitigation. Tier 1 permits 

would require Service staff to review 

and evaluate the application and 

coordinate internally prior to permit 

issuance. We do not anticipate requiring 

additional environmental compliance 

review under NEPA for Tier 1 specific 

permits beyond documenting that the 

action is within the scope of the existing 

2016 PEIS and the 2023 EA issued with 

this rulemaking. For wind energy or 

other applications that require a fatality 

estimate, Service estimation of expected 

take must require minimal data 

manipulation; for example, the 

applicant collects site-specific data 

according to Service standards or adopts 

the Service’s generalized fatality 

estimate (i.e., using the nationwide 

specific permit priors). 

The Service will assess a Tier 2 fee for 

specific permits of moderate to high 

complexity that cannot or do not wish 

to meet the requirements for Tier 1. 

Because Tier 2 applications are more 

complex, more staff hours, including 

higher graded staff, are required to 

review application information, assess 

biological impacts and environmental 

effects of the proposed activity, and 

determine whether the application 

meets eligibility and issuance criteria. 

These projects may include more 

complex technical assistance, 

coordination with other programs or 

agencies, and documenting NEPA 

compliance. We estimate the amount of 

staff time to complete these tasks for 

moderately complex projects will be 250 

to 275 hours per permit based on 

processing times for similarly complex 

permits issued by the Service. 

We retain the provision in 

§ 13.11(d)(2) that allows an applicant to 

request, and the Service to support, 

issuance of one consolidated permit 

when more than one type of permit is 

required for an activity and those 

permits are issued by the same office. 

When the Service supports 

consolidation, a single specific permit 

may authorize multiple activities, for 

example power lines with nest take or 

wind energy with power lines. The 

Service will develop guidance for 

consolidating permits. Because of the 

automated nature of general permits that 

have avoidance, minimization, and 

compensatory mitigation requirements 

developed for each activity, a project 

proponent would have to obtain the 

relevant individual general permits. 

Therefore, consolidating general permits 

is not allowed. 

The Service expects specific-permit 

applicants to diligently pursue 

obtaining a permit after applying. We 

will consider a permit application 

abandoned or withdrawn if an applicant 

does not respond to requests for 

information or engage in good-faith 

negotiations. Once we consider an 

application abandoned or withdrawn, 

the applicant must submit a new 

application, including fees, to obtain 

take coverage for the activity. 

Once effective, under this final rule 

the Service will not charge an 

application fee to government entities, 

consistent with other permits issued in 

accordance with § 13.11(d)(3); the 

Service will charge an administration 

fee to any Federal, Tribal, State, or local 

government agency for permits issued 

under part 22 subpart E. The Service 

may also require government agencies to 

enter into a reimbursable agreement. 

This fee is necessary to ensure the 

permitting program remains consistent 

with the preservation of eagles. 

Administrative Changes 

The Service has made the following 

administrative changes to the 

organizational structure of our eagletake-authorization regulations to 

improve clarity. To reduce confusion, 

we redesignate the current subpart C 

‘‘Specific Eagle Permit Provisions’’ as 

‘‘Eagle Possession Permit Provisions.’’ 

We create a new subpart E pertaining to 

‘‘Take of Eagles for Other Interests.’’ 

This subpart now houses regulations 

that authorize permits for the taking of 

eagles for the protection of other 

interests in any particular locality. 

We redesignate regulations for 

permits to take golden eagle nests for 


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resource development and recovery 

operations from § 22.75 to subpart E, at 

§ 22.325. We update the section heading 

as ‘‘Golden eagle nest take for resource 

recovery operations’’ to clarify that this 

regulation applies to resource 

development or recovery operations as 

authorized by 16 U.S.C. 668a. The 

purpose of this regulation is to authorize 

the removal of golden eagle nests that 

are physically in the way of resource 

recovery operations, such as on the cliff 

wall of a mine. We do not change the 

regulatory requirements that any take 

authorized must be compatible with the 

preservation of eagles (newly designated 

§ 22.325(c)) and cannot be reasonably 

avoided (newly designated 

§ 22.325(c)(1)). The take of nests in 

proximity to resource development and 

recovery operations to minimize the risk 

of disturbance, injury, or mortality to 

eagles is authorized under § 22.300. We 

also redesignate the current regulations 

at § 22.90 pertaining to permits for bald 

eagle take exempted under the 

Endangered Species Act to § 22.400 in 

subpart E. 

Sequencing of General Permits 

Registration Availability 

To implement the general permits 

authorized under this rulemaking, the 

Service is developing an online generalpermit registration system. After the 

effective date of this regulation, April 

12, 2024, the Service will implement the 

general permit registration system in 

stages to ensure the technology is 

working appropriately. General permit 

registration for incidental take of eagles 

by wind energy projects and by power 

lines is anticipated to be available 

starting on May 6, 2024. General permit 

registration for disturbance of eagles and 

take of eagle nests is anticipated to be 

available starting on July 8, 2024. In the 

event these availability dates change, 

the Service will provide updated dates 

on https://www.fws.gov/regulations/ 

eagle and the ePermits website https:// 

epermits.fws.gov. Those interested in 

applying for a wind energy or power 

line general permit between the 

effective date of the rule and the 

availability of the registration system 

may apply by: (1) completing 

application form 3–200–71, including 

sections B–D and the general permit 

questions in section E and (2) emailing 

the complete, signed form to 

migratorybirdpermits@fws.gov. The 

Service will reply to the email with the 

general permit conditions. Entities must 

comply with and are authorized by the 

general permit conditions until the 

registration system is available. Once 

available, entities will have 10 business 

days to register for a general permit 

using the registration system, including 

paying fees. Failure to register, once 

available, voids the prior coverage 

granted through the above process. 

For those interested in applying for 

disturbance or nest take permits, the 

Service will continue to use specific 

permits for the remainder of the 2024 

nesting season. For activities starting on 

or after September 1, 2024, general 

permits registration is expected to be 

available. However, in the event it is 

not, the procedure described in the 

paragraph above will be used starting 

July 8th until the registration system is 

available. 

Compliance With the Endangered 

Species Act 

The general permits addressed in the 

regulations may not be used for an 

activity if implementing the 

requirements of the general permit may 

affect ESA-listed species or species 

proposed for listing or designated or 

proposed critical habitat (e.g., burying a 

cable to avoid impacts to eagles would 

result in effects to an ESA-listed snake 

or plant). In those cases, the proponent 

should apply for a specific permit and, 

if appropriate, the Service will conduct 

an intra-service section 7 consultation 

on its issuance of the eagle incidental 

take permit. That said, since eagle 

incidental take permits would authorize 

only the incidental take of eagles and 

not the underlying activity, except as it 

relates to implementing the conditions 

of the permit, the Service’s issuance of 

an eagle incidental take permit would 

not serve as a nexus for ESA section 7 

purposes for the underlying activity. 

Response to Public Comments 

The Service received 203 unique 

letters, which contained 1,649 

individual substantive comments, on 

the proposed rule. The following 

sections contain a summary of the 

substantive public comments we 

received on the proposed rule and our 

responses. Topics are listed in 

alphabetical order. Where appropriate, 

we explain why we did or did not 

incorporate the changes suggested by 

the commenters into this final rule. Due 

to the high number of comments, this 

summary presents major themes 

occurring throughout the comments. 

Not included are the many comments 

providing general support for provisions 

of the rulemaking. Likewise, we do not 

include summaries of any comments 

providing general opposition, unless 

they contain suggestions for 

improvement. We also do not respond 

to comments that we considered to be 

outside the scope of this rulemaking. 

Audits 

Issue. Commenters requested more 

information regarding the proposed 

audit program, including details about 

the auditing process, required 

documentation, and expectations for 

audited entities. Some comments 

expressed concerns with the estimated 

annual percentage of audited projects, 

with many indicating a desire for more 

projects to be audited annually. 

Response. We are developing internal 

auditing procedures and external 

answers to frequently asked questions 

on audits. Limited desktop audits and 

onsite inspections will be conducted to 

determine if a project meets eligibility 

criteria and whether the permittee is 

complying with the regulations and 

permit conditions. In general, Service 

staff will conduct an audit following 

similar procedures to how staff 

currently review a permit application 

and administer permits. Audits may 

include reviewing application materials 

for completeness and general-permit 

eligibility. We will verify required 

reports were submitted and review the 

reports. Any required records, plans, or 

other documents will be requested of 

the permittee and reviewed. If there is 

a compliance concern, the applicant 

will be given the opportunity to submit 

additional information to address the 

concern. If, during an audit, the Service 

determines that the permittee is not 

eligible for a general permit or is out of 

compliance with general permit 

conditions, we will communicate to the 

permittee options for coming into 

compliance. 

The Service has estimated the number 

of audits that can be conducted each 

year based on the expected average time 

to conduct an audit and the fee money 

available to fund staff to conduct audits. 

Staff will conduct as many audits as 

possible with the available funds. There 

are many uncertainties right now as to 

how much staff time is needed to 

conduct an audit. We estimate 

approximately 1 percent of general 

permits will be audited each year. If we 

find general permittees are providing 

complete information, audits may go 

quickly and more projects can be 

audited. We will regularly assess the 

cost-per-audit and the percentage of 

projects audited to adjust the fee 

structure accordingly. 

Avoidance and Minimization Measures 

Issue. Several commenters expressed 

concern with a lack of specificity in the 

regulation regarding avoidance and 

minimization measures. 

Response. The role of regulation is to 

establish performance standards, 


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whereas the role of permit conditions is 

to provide specificity on how those 

performance standards may be met by 

each permittee. Overly prescriptive 

regulations are difficult to keep current 

and can limit innovation. Instead, we 

will provide permit conditions and 

other documents to communicate the 

Service’s recommendations on how to 

meet regulatory requirements. 

Avoidance and minimization 

requirements for general permits are 

based on the most commonly applied 

and effective measures learned by the 

Service from more than a decade of 

permitting. Eligibility criteria and the 

performance standards established in 

the regulation conditions can be revised 

through rulemaking. As information and 

technology change, the Service may 

update our recommendations and 

expectations on how eligibility criteria 

and conditions may be met. 

Issue. Some commenters expressed 

the desire to see permit conditions that 

incorporate the use of experimental or 

emerging technology to avoid and 

minimize incidental take by wind 

energy projects, including Identiflight 

Bird Detection System, painting one 

turbine blade black, or seasonal 

restrictions on wind turbine operation. 

Response. The Service supports 

science and technology that increases 

safe eagle passage through wind energy 

facilities. There is no restriction on 

permittees implementing these 

technologies, which can be used to meet 

the performance standards of the 

regulation. However, the efficacy of 

these technologies and the details 

surrounding their implementation have 

not been sufficiently studied to warrant 

prescriptive requirements in these 

regulations at this time. The Service 

continues to stay abreast of scientific 

developments and may include these 

types of technologies in future 

rulemakings if evidence demonstrates 

their effectiveness. Specific permit 

applicants may request that the Service 

consider the permittee’s use of emerging 

technologies when the Service estimates 

fatality. 

Issue. We received requests to include 

perch discouragers as a standard 

avoidance and minimization measure 

for power line poles. 

Response. We did not require perch 

discouragers as a minimization measure 

for power line general permits because 

the effectiveness is situation dependent. 

We encourage the use of perch 

deterrents where they may be effective. 

However, APLIC has moved away from 

broad implementation of perch 

discouragers because devices installed 

to prevent perching may provide a 

substrate to secure nest material, and, in 

some cases, may increase electrocution 

risk (APLIC 2023). Prather and Messmer 

(2010) tested several types of perch 

discouragers and found no difference in 

perching on poles with or without 

discouragers. However, we support the 

use of perch discouragers in situations 

where it is the best or only option for 

reducing electrocution of eagles. 

Issue. Multiple commenters requested 

that we create ‘‘no go zones’’ or similar 

restrictions prohibiting the installation 

of wind turbines in the most important 

areas for eagles. 

Response. The Service did not create 

‘‘no go zones’’ because doing so is 

outside the scope of the Eagle Act. The 

Service’s authority under the Eagle Act 

allows the regulation of incidental take 

of bald eagles and golden eagles. Our 

regulatory authority does not extend 

beyond that mandate to prohibit the 

installation of wind turbines or other 

infrastructure. The Eagle Act ensures 

the preservation of our two eagle species 

by protecting the survival and breeding 

productivity of individual birds but 

does not directly mandate protection of 

eagle habitat. Consequently, the Eagle 

Act does not give the Service authority 

to prohibit certain types of land use, 

including development. Instead, it 

allows us to influence certain types of 

land use to reduce the risk of take of 

bald eagles and golden eagles, including 

disturbance of breeding eagles, and to 

require avoidance, minimization, and 

compensatory mitigation from 

individuals and entities unable to avoid 

taking these species. These features of 

our regulatory process are common to 

both existing regulations and these new 

regulations. 

Climate Change 

Issue. The Service received comments 

regarding the implications of climate 

change for this rulemaking and the 

inclusion of climate change in the EA. 

Response. The Service recognizes the 

threats that climate change poses to 

eagles as well as other wildlife. The 

Service supports all actions that address 

climate change, including renewable 

energy development. The Service 

believes that this rule will help facilitate 

the development of renewable energy 

projects by revising the current 

permitting approach for eagle incidental 

take. The permit framework developed 

for renewable projects creates clear 

expectations for projects to achieve 

compliance, in some cases with no 

direct interaction with the Service (e.g., 

general permits). The Service is 

balancing the need for regulatory 

certainty, eagle preservation, and the 

need for renewable energy development 

to combat climate change. While we 

intend the changes to the eagle-permit 

regulations to encourage more projects 

to apply for a permit, we expect that this 

rulemaking will have no impact on the 

number of future renewable energy 

projects on the landscape and, thus, no 

impact on the trajectory of climate 

change. 

Compensatory Mitigation 

Issue. The Service received numerous 

comments related to compensatory 

mitigation requirements, including 

advocating for different methods to 

achieve these requirements, including 

lead abatement, carcass removal from 

roads, and habitat enhancement. 

Response. The Service is actively 

working on reviewing and approving 

other forms of mitigation and 

encourages potential mitigation 

providers to submit their proposals. As 

part of this rule, we created a new 

regulation specific to compensatory 

mitigation to more clearly signal 

requirements to the public. Quantifying 

the benefits of various compensatory 

mitigation measures and developing 

standards for their application in 

permitting is complex. To date, the 

Service has authorized power pole 

retrofits and lead abatement as 

compensatory mitigation measures. The 

Service is actively developing other 

compensatory mitigation methods, such 

as roadside carcass removal, that will 

decrease eagle mortality or increase 

eagle productivity. The Service 

encourages interested mitigation 

providers to contact the Service with 

ideas on compensatory mitigation 

methods. The Service agrees that it is 

important to develop compensatory 

mitigation methods that offset different 

sources of mortality and have a wider 

range of mitigation providers across the 

country. We will continue to engage 

stakeholders and develop additional 

guidance and standards for approving 

mitigation providers. This will include 

gathering information to address 

mitigation measure effectiveness and 

uncertainty and establishing appropriate 

assurances for the durability of 

mitigation measures. 

Issue. Some commenters expressed 

concerns with scaling compensatory 

mitigation at the Eagle-ManagementUnit (EMU) level rather than the localarea-population (LAP) level. 

Response. The final rule retains the 

requirement to site compensatory 

mitigation within the same EMU where 

the take is authorized. Authorized take 

may affect individual eagles that are 

both resident and migratory. Banding 

records have demonstrated eagle 

movements within EMUs beyond 

individual LAPs. Thus, requiring that 


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compensatory mitigation occur at small 

scales (e.g., the LAP scale) may be 

limiting the benefits of compensatory 

mitigation unnecessarily and doing so at 

an inappropriate ecological scale. 

Additionally, limiting compensatory 

mitigation options to the LAP scale is 

currently not practicable until there are 

sufficient mitigation providers capable 

of supporting every LAP. When 

compensatory mitigation is required by 

the Service to address an LAP concern, 

the regulation prioritizes implementing 

compensatory mitigation in the LAP 

where the impacts occurred. 

Issue. Several commenters expressed 

concerns with requiring compensatory 

mitigation for bald eagles and indicated 

this requirement is not necessary to 

meet the preservation standard. 

Response. The general-permit 

compensatory mitigation requirement 

includes a small portion for bald eagles. 

This is necessary to ensure that the 

general-permit program is consistent 

with the preservation standard 

established by the Eagle Act and 

implementing regulations. General 

permits do not provide for the projectspecific review prior to issuance; 

therefore, possible LAP effects must be 

addressed after issuance. One tool is to 

require a small amount of compensatory 

mitigation from general permittees that 

the Service can direct to areas where 

LAP thresholds are at risk of being 

exceeded. The rate of this extra 

compensatory mitigation is based on 

bald eagle take predictions, but the 

mitigation amounts provided can be 

used for either species of eagle. If an 

applicant does not want to pay this 

extra mitigation cost, which the Service 

expects to be relatively small for each 

project, the applicant may apply for a 

specific permit where project-specific 

review would determine mitigation 

requirements. 

Issue. Several commenters proposed a 

conservation fund or conservation fee in 

addition to any required compensatory 

mitigation. 

Response. The Service has numerous 

authorities that allow it to charge an 

entity permit fees and enter into 

reimbursable agreements. Funds 

collected through permit fees and 

reimbursable agreements are used to 

defer the cost of administering the 

permit program, including, but not 

limited to, salary and other staff-related 

costs and costs to ensure that issuance 

of permits is compatible with the 

preservation of eagles. Based on 

suggestions provided in public 

comments and as consistent with the 

use of collected fees, the Service will 

use these fees to fund analysis to: (1) 

better understand eagle population 

dynamics, including the risk to eagles 

from authorized activities; (2) better 

understand mitigation outcomes, 

including researching and validating 

avoidance, minimization, and 

compensatory mitigation measures; and 

(3) address and improve various 

components of the eagle permitting 

program, including gathering and 

analyzing demographic data, GPS 

tagging and tracking eagles for 

programmatic monitoring, and 

researching and validating monitoring 

measures. The Service does not have 

express statutory authority under the 

Eagle Act to require contribution into a 

conservation fund beyond these 

purposes, nor the specific authority to 

direct such funds if they were collected. 

Changes to Fees 

Issue. Multiple commenters suggested 

that the fees for general permits were 

too high and would disincentivize 

smaller entities from participating. 

Response. In the final rule, the 

Service has adopted a scaled fee 

approach for both general permits and 

specific permits. For power lines, 

general-permit administration fees are 

separated into Tier 1 for non-investorowned utilities and Tier 2 for investorowned utilities (using U.S. Energy 

Information Administration definitions). 

For wind energy, general-permit 

administration fees are separated into 

Tier 1 distributed and community scale 

and Tier 2 utility scale, using the 

Service’s Land-Based Wind Energy 

Guidelines definitions. For specific 

permits, the Service created a tiered fee 

structure for wind energy and power 

line projects consisting of three tiers: 

Tier 1, Tier 2, and Tier 2 with 

reimbursable agreement, where a Tier 1 

fee is charged for standard applications 

and a Tier 2 fee is charged for complex 

applications. A reimbursable agreement 

will be used when processing time 

exceeds 275 staff hours. The Service 

retains the current non-commercial and 

commercial tiering for disturbance and 

nest take permits. 

Coordination With States 

Issue. Several commenters stressed 

the need for the Service to coordinate 

with other Federal and State agencies on 

the issuance of general and specific 

permits. 

Response. The Service values 

coordination with Tribal, State, and 

Federal partners, and we intend to 

continue to coordinate and share 

information about permits issued. For 

general permits, we will regularly be 

compiling and distributing information 

on general permits issued. We have 

updated the regulation to reflect what 

information will be made readily 

available to partners and the public. For 

specific permits, the Service will 

continue to consult States, Tribes, and 

other Federal agencies as part of our 

normal permitting procedures. In 

addition, Department of the Interior 

disclosure policies (68 FR 52610, Sept. 

4, 2003) under the Privacy Act also 

provide for routine disclosures to 

Federal, Tribal, State, local, or foreign 

agencies, including to exchange 

information on permits granted or 

denied, to ensure compliance with all 

applicable permitting requirements and 

obtain advice relevant to approving or 

denying a permit. 

Issue. Some commenters expressed 

concern about the locations of eagle 

nests being shared with the public, 

while others stated that some States are 

prohibited from disclosing nest 

locations and that the Service should 

not require that information on permit 

applications. 

Response. The Service requires 

precise location information on nest 

locations to properly analyze effects to 

eagles, including LAP effects, as well as 

for law enforcement purposes. The 

Service will take all available measures 

to protect eagles and their nest 

locations. The Service will continue to 

coordinate with State wildlife agencies 

on these matters. 

Issue. We received comments that 

expressed concerns with the take of 

eagles in States where either the bald 

eagle, golden eagle, or both are listed as 

threatened or endangered at the State 

level. These comments requested that 

the Service provide details regarding 

coordination with the States with 

respect to the distribution of authorized 

take across individual EMUs, as well as 

in relation to the quantification of LAP 

thresholds. 

Response. Federal issuance of a 

permit does not supersede Tribal or 

State protections of a species. Tribes, 

States, and other Federal agencies are 

not required to authorize incidental take 

of bald eagles or golden eagles, even if 

a permittee has obtained a Service 

general or specific permit. It is the 

responsibility of the permittee to ensure 

they are in compliance with all 

applicable laws and regulations. To 

support the protection of local 

populations in this rulemaking, the 

Service has retained the existing 

preservation standard that requires the 

Service to determine that permits we 

issue are consistent with eagle 

preservation at the EMU and LAP 

scales. Under general permits, the 

Service will not analyze cumulative take 

at the LAP scale prior to general permit 

issuance. However, the Service will 


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review general permits issued and 

analyze cumulative take at the LAP 

scale if an area of concern is identified. 

States are encouraged to review the 

Service’s issued permits and submit any 

information to the Service that might 

assist with assessing impacts to LAPs. If 

the Service is concerned about the 

status of any LAP, we can either (a) 

direct compensatory mitigation to areas 

of concern, or (b) suspend the generalpermit program in whole or in part. 

Definitions 

Issue. The Service received comments 

on the definition of ‘‘in-use nest,’’ 

particularly regarding determining egg 

viability and nests that are considered 

under construction. 

Response. The purpose of this change 

is to address the increasing frequency of 

instances of bald eagle nest activity 

outside of the breeding season, 

including non-viable eggs in nests 

outside of breeding season and nests 

being maintained outside of breeding 

season. The Service agrees with the 

expressed difficulty of determining if an 

egg is viable in the field. Eggs should be 

assumed viable, unless evidence proves 

otherwise. Evidence like the absence of 

adults for several days or presence of 

eggs out of breeding season should be 

used to assess the likelihood of an egg 

being viable. We removed the 

protections for nests under construction 

or under maintenance for bald eagles. 

The previous definitions were part of a 

conservative approach for the 

recovering bald eagle that is no longer 

warranted. These changes are 

appropriate and improve consistency 

between the Eagle Act nest protections 

with the Migratory Bird Treaty Act nest 

protections. 

EA Alternatives 

Issue. The Service should reconsider 

Alternative 2 in the draft EA. 

Response. The Service did reconsider 

Alternative 2 and again concludes it has 

a high risk of not meeting our 

preservation standard if implemented. 

Under Alternative 2, the regulations 

would be revised to include a general 

permit for land-based wind energy 

facilities only, with eligibility based on 

a project’s distance from eagle nests and 

compensatory mitigation requirements 

in the form of a flat, per-project fee for 

mitigation. Adopting Alternative 2 is 

problematic because neither the Service 

nor project proponents know where all 

eagle nests on the landscape are located. 

This lack of data reduces our ability to 

reliably determine whether a specific 

wind project is eligible for a general 

permit. This situation also adds 

uncertainty for projects as well as to any 

assessment the Service might perform. 

Considering this, we expect Alternative 

2 would come with the highest risk of 

inconsistency with our preservation 

standard compared to the other 

alternatives. 

The Service concludes that the 

general-permit program described under 

Alternatives 3 and 4 will best 

accomplish the dual goals of increasing 

participation and increasing 

conservation for eagles, where more 

than 80 percent of existing turbines on 

the landscape are eligible for general 

permits (and the associated benefits of 

those general permits) and where paths 

to a streamlined issuance of specific 

permits are described. 

The Service also concludes that 

Alternative 2’s flat fee for mitigation and 

monitoring may disincentivize smaller 

projects (e.g., tens of turbines) from 

applying for take permits compared to 

larger projects (e.g., hundreds of 

turbines). The Service estimates that an 

average wind project qualifying for a 

general permit will pay $312,000 in 

compensatory mitigation under 

Alternative 2. This is nearly ten times 

the estimated compensatory mitigation 

cost of $37,200 for Alternatives 3 and 4. 

Although industry trends may be 

toward new construction of larger 

facilities and consolidated ownership, 

wind energy facilities are long lived 

(usually 30 years or more). Older 

facilities will continue to operate and 

must be considered when estimating 

participation in eagle incidental-take 

permitting and when considering 

financial impacts to permittees under 

Alternative 2 (Section 5.4.5.1 of the 

Environmental Assessment). Although 

risk to eagles from small facilities that 

are eligible for general permits may be 

relatively low, under Alternative 2, 

those businesses would be more 

susceptible to future enforcement 

actions and associated enforcement 

costs in the event of an eagle take if they 

remain unpermitted due to the 

relatively high cost of flat fees. 

EA Economic Analysis 

Issue. The Service received several 

comments on our estimated mitigation 

costs, with some commenters suggesting 

our estimates were too high while others 

suggested they were too low. 

Response. Because compensatory 

mitigation is provided either by the 

permittee or a third party, costs can vary 

widely. We acknowledge that the costs 

estimated for compensatory mitigation 

under all alternatives in the FEA are 

estimates and are likely to vary, perhaps 

substantially, across all permitted 

projects based on the mitigation method 

selected, the in-lieu fee program or 

conservation bank selected, and other 

details. These details are difficult to 

account for in an economic analysis, but 

we considered them as accurately as 

possible based on current data and our 

estimated projections. In the FEA, the 

Service estimates compensatory 

mitigation for an average wind energy 

general permit to be $37,200. These 

estimates are based solely on estimates 

of compensatory-mitigation costs using 

power pole retrofits, which are the only 

cost estimates the Service currently has 

available. 

Issue. The Service received comments 

specifically on our cost estimates for 

retrofitting power poles under the 

power line regulation. 

Response. We updated the FEA to 

reflect our assumption that the proactive 

retrofit requirements associated with 

this rule are not expected to result in 

additional costs to power line entities. 

As stated in section 5.6.5 of the FEA, the 

Service assumes that power line entities 

most likely to apply for a permit are 

entities that have a risk of taking eagles 

and are already retrofitting power poles, 

thus already meeting this requirement. 

Eligibility—Wind Energy General Permit 

Issue. Many commenters expressed 

concerns with the general-permit 

eligibility for wind energy, specifically 

regarding the distance from bald eagle 

nests. 

Response. The Service acknowledges 

the uncertainty that is created if bald 

eagles initiate nesting near a project 

with a wind energy general permit. 

Therefore, we revised eligibility criteria 

(§ 22.250(c)) to provide that a general 

permittee remains eligible to renew 

their permit, even if the Service revises 

eagle relative abundance thresholds or 

eagles construct nests within the 

species-specific setback distances, as 

long as the project does not discover the 

remains of four eagles of the same 

species within a 5-year permit tenure. 

Issue. Multiple comments requested 

that the Service create a general permit 

option for existing wind energy projects 

(as defined in § 22.250(b)) occurring 

within the specific permit zone. 

Response. The Service acknowledges 

the unique challenges of existing 

projects being subject to new 

regulations. However, after extensive 

review, the Service could not identify a 

set of general-permit eligibility criteria 

that a project could self-certify without 

adding extensive complexity or 

uncertainty. Therefore, the Service 

retained and clarified the eligibility 

criterion that any existing project that 

does not meet general permit eligibility 

criteria can apply for a specific permit 

(§ 22.200(b)(7) while requesting a letter 


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of authorization to obtain a general 

permit (§ 22.250(c)). 

The Service will review all 

information provided in the application, 

including any site-specific, preconstruction or post-construction data. 

If we determine that the take rates at the 

existing project are likely to be 

consistent with or lower than eagle take 

rates expected at similar-sized wind 

facilities that qualify for general 

permits, the Service will issue a letter of 

authorization to register for a general 

permit. If an applicant receives a letter 

of authorization, we may refund the 

specific permit application fee, but to 

cover the cost of review, we will not 

refund the administration fee. The letter 

of authorization may require additional 

avoidance, minimization, or 

compensatory mitigation requirements 

as needed to ensure consistency with 

general permit take rates. The Service 

anticipates expediting the processing of 

these applications. 

Issue. Commenters suggested that the 

Service should allow the use of sitespecific data to determine eligibility for 

general permits. 

Response. The Service recognizes the 

value in site-specific data. However, the 

purpose of general permits is to apply 

an efficient and streamlined approach 

for issuing permits to projects that the 

Service can pre-determine pose 

relatively low risk to eagles. It is not 

currently possible to evaluate sitespecific data in an automated manner, 

which is necessary for general permits. 

Applicants that prefer to use sitespecific data may apply for a specific 

permit and request review for inclusion 

in the general-permit program as 

described in a previous comment 

response. 

Issue. Commenters suggested that 

existing projects should still qualify for 

a general permit even if some of the 

project’s turbines are within the specific 

permit zone. 

Response. The Service reviewed at 

length the possibility of automatically 

allowing general-permit eligibility for 

projects that overlap the boundaries 

between specific and general permit 

zones. This deviation from the proposed 

rule appears simple but comes with an 

increased risk that our general permit 

program would be inconsistent with the 

preservation standard established by the 

Eagle Act and implementing 

regulations. The risk is further increased 

because the projects that would be 

eligible for general permits by partially 

overlapping the general-permit zone 

would very likely create higher risk to 

eagles than other projects that fully 

encompass the general-permit zone. The 

Service must choose between 

addressing that risk by increasing the 

mitigation costs for all general 

permittees or retaining that all turbines 

must be in the general permit zone. 

Because of how substantive the 

increased mitigation costs were, the 

Service instead provides a mechanism 

for existing projects to request an 

eligibility determination case-by-case as 

described in a previous comment 

response. 

Issue. Comments noted that many 

existing projects would not qualify for a 

general permit and stated that many of 

the current deficiencies with the 

specific permit program would still be 

present under the new regulations. 

Response. The Service has developed 

and will implement a streamlined 

approach to specific permits. One 

approach we considered and adopted in 

the final rule was the creation of new 

tiers for reviewing specific-permit 

applications. The purpose of these tiers 

is to separate the specific-permit 

applications that are able to adopt 

standardized approaches from those 

which request more extensive review 

and negotiation. Applicants that are 

willing to accept standard specificpermit conditions (and do not require 

additional NEPA analysis) are eligible 

for a less expensive application fee and 

faster permit-review times. 

Eligibility—Relative Abundance Map 

and Thresholds 

Issue. Comments suggested that the 

relative abundance maps should 

indicate levels of risk so developers 

could choose to avoid the highest risk 

areas, or, at a minimum, understand 

increased mitigation costs that might be 

associated with higher risk areas. 

Response. The map published with 

the final rule uses eagle relative 

abundance as an index for potential 

risk. We use relative abundance data for 

eagles because the presence of more 

eagles in a given area at different times 

of the year results in more interactions 

between turbines and eagles and 

therefore increased risk of collisions. 

Thus, relative abundance data is an 

effective proxy for determining the risk 

of eagle take in a particular location. 

Although there are only two levels of 

risk depicted in this map, it does 

highlight areas that the Service has 

deemed to have relatively high or 

relatively uncertain risk to eagles. It is 

our intent that this map will be used by 

developers when siting wind-related 

infrastructure. As additional data 

become available, we will continue to 

refine our ‘‘risk maps.’’ 

Issue. The Service received numerous 

comments regarding the use of eBird 

Status and Trends relative abundance 

products to create the relative 

abundance map. Some commenters 

expressed concern that use of eBird data 

would underestimate eagle abundance 

in areas inaccessible to birders. 

Response. The Service recognized that 

data products from the Cornell Lab of 

Ornithology using eBird data is new to 

many. It is important to distinguish that 

the data products the Service is using 

are distinct from raw eBird data. We 

consider the products from the Cornell 

Lab of Ornithology to be currently the 

best available science for developing a 

nationwide approach to permitting. We 

recognize and acknowledge the 

uncertainties that are included with this 

method, such as areas where raw eBird 

data has limited reporting. However, the 

Cornell Lab of Ornithology eBird Status 

and Trends relative abundance products 

use machine learning to fill in these 

gaps based on the models’ ability to 

relate the eBird observations to 

environmental predictors derived from 

global remote sensing data. For 

example, reliability of species 

distribution model predictions can be 

increased for unsampled locations and 

times by relating environmental 

predictors to observed occurrences or 

abundances. This approach allows us to 

predict abundance in places that may 

not be frequented as often (or at all) by 

eBird users. 

Issue. Several comments suggested we 

use information from other datasets 

(e.g., migration counts, telemetry 

studies, roost registries, USGS breeding 

bird survey, Audubon Christmas Bird 

Count, and the Midwinter Bald Eagle 

Survey) to supplement and improve 

maps either in addition to or as part of 

the eBird models. 

Response. The Service agrees that the 

best information should be used to 

determine eagle relative abundance. To 

implement general permits, the Service 

must regulate at the national scale, 

which is why this regulation relies on 

data products from the Cornell Lab of 

Ornithology. The Service intends to 

incorporate other data into our mapping 

efforts, as appropriate. However, it will 

take time to review each dataset, 

including its assumptions and biases, 

and incorporate those data into mapping 

efforts in a meaningful way and at 

appropriate scales. We welcome 

additional information and data that 

could help with risk mapping and any 

investment in data integration efforts. 

Issue. We received comments 

requesting that the Service further 

stratify relative abundance thresholds 

according to differences in geography 

(e.g., northern and southern for bald 

eagles and eastern and western for 

golden eagles). 


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Response. The Service considered 

further stratification and the creation of 

separate relative abundance criteria for 

each eagle species preceding the public 

comment period. However, adding 

additional strata would have changed 

the scale at which the relative 

abundance is evaluated and would have 

added significant complexity to the 

general permit program for wind energy 

facilities. Thus, we elected not to 

incorporate these changes. 

The Service will update the map and 

relative abundance thresholds 

periodically. In the FEA, we suggested 

every 5 years or different intervals if 

information suggests shorter or longer 

intervals are more appropriate. Between 

updates, the Service will consider any 

suggestions for better and more effective 

ways to map relative eagle abundance. 

General Permits 

Issue. One commenter indicated that 

they thought the proposed rule placed 

too much emphasis on general permits. 

Previously, all eagle take was permitted 

with specific permits. 

Response. This rule emphasizes 

general permits because that is the 

provision that is being introduced with 

this rulemaking. The Service has 

retained the specific permit approach 

and provisions. In this rulemaking, the 

Service has created general permits as 

an alternative approach to obtaining 

eagle take authorization for projects that 

meet eligibility criteria. The purpose of 

general permits is to simplify and 

expedite the permitting process for 

activities for which the Service has 

well-established avoidance and 

minimization measures and that have 

relatively consistent and low risk to 

eagles. The regulations are based on the 

well-established avoidance, 

minimization, and compensatory 

mitigation measures that the Service has 

been implementing as permit conditions 

for the past 14 years. This approach 

allows us to confidently authorize take 

consistent with the preservation 

standard established by the Eagle Act 

and implementing regulations without 

requiring Service review prior to 

issuance. We will continue to refine the 

general permit approach and 

incorporate public input on eligibility 

criteria for all general-permit categories 

included in this rule to ensure that 

general permits effectively simplify and 

expedite the permit process for eligible 

projects while meeting the preservation 

standard. 

Issue. Many comments recommended 

that the Service allow project 

proponents to apply for a separate 

permit for bald and golden eagles, as 

opposed to requiring coverage for both 

species. 

Response. In reviewing comments, the 

Service realized we did not sufficiently 

explain in the proposed rule that the 

mitigation requirements are specific to 

that EMU and proportional to golden 

eagle abundance in the EMU. 

Commenters expressed concern that 

projects in the East, where golden eagle 

use of wind projects is seasonal and 

generally relatively low, would be 

paying to compensate for authorized 

golden eagle take in the West, where 

golden eagle use of wind projects can be 

relatively high. This is not the case. 

Projects in the Atlantic and Mississippi 

EMU have a lower golden eagle 

mitigation rate that is commensurate 

with the generally lower risk of golden 

eagle take in those EMUs. Similarly, 

projects in the Central and Pacific EMUs 

will be required to pay a higher 

compensatory mitigation rate for golden 

eagles, commensurate with the generally 

higher risk of golden eagle take there. 

There is a small amount of additional 

mitigation required in all EMUs, to 

provide funds if a LAP threshold is 

exceeded and mitigation is necessary for 

the program to remain consistent with 

our preservation standard. These details 

are covered in the Final Environmental 

Assessment associated with this 

rulemaking. 

Between the proposed and final rule, 

the Service again analyzed the 

possibility of authorizing general 

permits by species and did not select 

that approach at this time. While 

seemingly a straightforward request, 

separating the species introduces 

uncertainty, which increases the risk 

and complexity of general permits. To 

meet the preservation standard, the 

Service estimates general permit 

mitigation requirements based on 

enrollment and has no basis for 

predicting how many projects will opt 

for coverage of one species versus both. 

The Service would effectively need to 

develop separate general permits for 

each species, including corresponding 

eligibility thresholds, eligibility maps, 

mitigation costs, and perhaps 

monitoring standards. In the interest of 

keeping general permits easy to apply 

for and implement, the Service retained 

the requirement that all general permits 

authorize take of both eagle species. The 

Service will continue to review this 

approach in future rulemaking. 

To illustrate the mitigation costs that 

will be required under general permits 

and how they differ across project sizes 

and across EMUs, consider two 

hypothetical projects: one with 30 and 

one with 100 project turbines, all 

turbines having a 95.7m rotor diameter. 

Both projects are eligible for a general 

permit and are located in the Atlantic/ 

Mississippi EMU (where general permit 

mitigation rates for golden eagles are the 

lowest). We will also consider those 

same two projects as being eligible for 

general permits in the Pacific EMU 

(where general permit mitigation rates 

for golden eagles are the highest). The 

30-turbine project in the Atlantic/ 

Mississippi EMU would be required to 

mitigate for 0.20 golden eagles and 0.06 

additional eagles (LAP mitigation), or 

0.26 total eagles, every 5 years. That 

same project in the Pacific EMU would 

be required to mitigate for the take of 

0.42 golden eagles and 0.06 additional 

eagles (LAP mitigation), or 0.48 total 

eagles, every 5 years. The 100-turbine 

project in the Atlantic/Mississippi EMU 

would be required to mitigate for 0.66 

golden eagles and 0.20 additional eagles 

(LAP mitigation), or 0.86 total eagles 

every 5 years. That same 100-turbine 

project in the Pacific EMU would be 

required to mitigate for 1.40 golden 

eagles and 0.20 additional eagles (LAP 

mitigation), or 1.60 total eagles every 5 

years. 

These two hypothetical projects 

illustrate the relatively low cost of 

obtaining golden eagle take coverage for 

projects that are eligible for a general 

permit, and especially the lower cost for 

smaller projects and projects in the East, 

where golden eagle presence is seasonal 

and they are generally less abundant 

than in many parts of the West. We are 

hopeful that general permit applicants 

who think their risk to golden eagles is 

low will view this relatively low 

mitigation cost as worth the price of 

incidental take authorization for golden 

eagles, in the event such take should 

occur. If applicants wish to receive a 

permit for only one eagle species, they 

may apply for a specific permit. 

Issue. Several comments expressed 

concern with regard to potential 

suspension or termination of the general 

permit program, including a suggestion 

that suspension or termination should 

be subject to public notice and comment 

prior to finalization. 

Response. The Service recognizes the 

uncertainty that a potential suspension 

or termination causes. Suspension or 

termination of general permitting is an 

important aspect to allow the Service to 

respond quickly in the event of sudden 

changes in eagle populations at the LAP 

or EMU scale; however, it is not a step 

the Service would take lightly and 

without a notice and comment process. 

Regulations currently allow for the 

revocation of a permit if ‘‘the 

population(s) of the wildlife or plant 

that is the subject of the permit declines 

to the extent that continuation of the 


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permitted activity would be detrimental 

to maintenance or recovery of the 

affected population’’ (50 CFR 

13.28(a)(5)). The Service will regularly 

evaluate whether the authorized take of 

bald eagles and golden eagles under 

general permits remains compatible 

with the preservation of eagles. If the 

Service finds that issuance of general 

permits in a particular LAP or EMU is 

not compatible with the preservation of 

bald eagles or golden eagles, we would 

first consider adding additional 

precautions to the permitting program 

through rulemaking. Rulemaking 

requires public review and comment 

periods. However, the Service is 

preserving, as a last resort, the option of 

suspending general permit issuance 

locally or nationally after publishing a 

notice in the Federal Register. This 

notice may include an opportunity for 

the public to comment on next steps. If 

the Service suspends general permitting, 

take currently authorized under a 

general permit remains authorized until 

expiration of that permit, unless the 

permittee is notified otherwise. 

Issue. Some commenters asked us to 

explain how ‘‘low effects’’ are 

determined for general permits. 

Response. Public comment indicated 

that the Service’s intent was not clear in 

the usage of the phrase ‘‘low effects.’’ 

We have modified the text to instead 

reference ‘‘low risk.’’ General permits 

simplify and expedite the permitting 

process for activities that have relatively 

consistent and low risk to eagles and 

well-established avoidance, 

minimization, and compensatory 

mitigation measures. For wind energy 

facilities, projects that have low risk 

will be determined by the relative 

abundance of eagles and the proximity 

of wind turbines to nest locations. For 

other general permits, the Service 

considers the implementation of the 

well-established avoidance and 

minimization measures to result in 

those projects being low risk to eagles. 

Guidance 

Issue. Several commenters requested 

more information regarding guidance 

documents that the Service plans to 

develop. 

Response. The Service is working on 

internal procedures, external outreach, 

and guidance documents to help the 

public understand and comply with 

these new regulations. In developing 

guidance, the Service will follow 

standard Federal guidance practices. All 

regulatory requirements are included in 

the rule. Guidance documents provide a 

step-down from the rule that explain 

and clarify the Service’s expectations on 

how to meet regulatory requirements. 

Monitoring 

Issue. While many commenters were 

supportive of the removal of third-party 

monitoring, we received comments in 

support of retaining this provision. 

Response. The third-party monitoring 

requirement has proven impracticable 

or impossible to implement at some 

projects for a variety of factors, 

including health, safety, liability, and 

access issues for project sites that are 

leased from multiple private 

landowners. These factors have created 

a barrier to obtaining a permit. The 

Service reviewed the purpose of thirdparty monitoring and determined in 

most circumstances it is sufficient to 

rely on the requirement that the 

permittee must certify that the 

information submitted is complete and 

accurate to the best of their knowledge 

and belief, subject to criminal penalty 

for supplying false information. The 

Service concluded that the existing 

penalties for false reporting under eagle 

take permits will be enough to dissuade 

most permittees from intentionally 

providing inaccurate reports. We retain 

the ability to require third-party 

monitoring on a case-by-case basis for 

specific permits, particularly if we have 

ongoing compliance concerns. 

Issue. Commenters expressed concern 

over the amount of money the Service 

was proposing to spend on monitoring. 

Response. The Service recognizes the 

tradeoff between spending money on 

monitoring or on compensatory 

mitigation. Monitoring can be 

expensive, and it may not be 

immediately clear how more monitoring 

benefits eagle preservation. The benefit 

of compensatory mitigation is more 

straightforward. While extensive 

monitoring has occurred at numerous 

wind projects, it remains difficult to 

draw programmatic, cross-project 

conclusions. Monitoring in a manner 

that allows for programmatic 

conclusions is critical to ensure 

implementing these new regulations 

will be compatible with eagle 

preservation. 

However, based on public comment, 

the Service reviewed its proposed 

approach to monitoring. We determined 

that we can accomplish monitoring 

goals under general permits with 

concurrent fatality monitoring, which 

will be required under general permits, 

and without additional monitoring 

performed by or contracted by the 

Service. In the final rule, we require 

concurrent monitoring conducted 

according to Service protocols by 

project operations and maintenance 

staff, which will be sufficient to meet 

the Service’s monitoring needs, 

provided there is sufficient participation 

in wind energy general permitting. We 

continue to require an administration 

fee, a portion of which will be used to 

validate the concurrent monitoring 

approach and analyze monitoring data. 

Issue. We received comments that 

expressed concern over the removal of 

the required 5-year check-ins. 

Response. The purpose of 5-year 

review is to update take estimates and 

related compensatory mitigation for the 

subsequent 5-year period. It also 

provides the Service with an 

opportunity to amend the permit to 

reduce or eliminate conservation 

measures or other permit conditions 

that prove to be ineffective or 

unnecessary. The purpose of these 

reviews does not change with this 

rulemaking. However, the 5-year 

requirement has introduced unintended 

uncertainty which, according to public 

comment, has reduced participation in 

eagle take permitting under the 2016 

regulations. It has also resulted in 

timing issues, where post-construction 

monitoring or other data is available offcycle from the 5-year timing (e.g., year 

3 or 4) but cannot be used until the 

scheduled check-in. Instead, check-ins 

may now be initiated by the permittee 

or the Service in response to events that 

warrant review, for example, updating 

fatality estimates and associated 

compensatory mitigation requirements 

or revising permit conditions to reflect 

the best available science. 

Issue. We received comments stating 

that our current surveys are not 

sufficient to adequately estimate eagle 

population numbers and that mortality 

data reporting is voluntary and 

unreliable. 

Response. The Service uses the best 

available science in ensuring that 

general and specific permits are 

consistent with the preservation of 

eagles. The Service has conducted aerial 

surveys for both bald eagles and golden 

eagles relatively recently and consider 

these survey efforts adequate to estimate 

populations of both species within 

applicable parts of their range. The 

Service agrees that voluntary reporting 

of mortality data is unreliable. With this 

rulemaking, the Service improves 

voluntary reporting at wind projects in 

two ways. First, through increasing 

participation in permitting and 

prescribing the concurrent monitoring 

protocol all projects use, the Service 

expects improved quantity and quality 

of eagle fatality data at wind projects. 

Second, through the collection of an 

administration fee, the Service can 

direct funds as needed to ensure 

permitting is consistent with the 

preservation standard, including by 


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survey populations and by analyzing 

project-specific mortality data. 

Issue. Commenters felt that 

monitoring related to disturbance take 

and nest take should not be required, 

specifically in instances where the 

activity does not directly take eagles, as 

with communication towers. 

Response. Unlike permits that 

authorize the incidental injury or death 

of eagles, monitoring required under 

nest take and nest disturbance permits 

is intended to detect breeding outcomes 

during current and subsequent nesting 

attempts and, if appropriate and 

practical, document if eagles breed 

again at their original or any new 

nesting location. The loss of breeding 

productivity constitutes take, as it 

prevents eagles from being added to the 

population. Monitoring requirements 

allow the Service to more accurately 

account for authorized take against our 

established species-specific take limits 

and, over time, may allow us to qualify 

or quantify the effectiveness of permit 

conditions. 

Nest Disturbance 

Issue. Comments regarding nest 

disturbance primarily focused on the 

buffer distances set for general permits, 

including those for in-use and alternate 

nests, and advocated for distances based 

on the level of tolerance to disturbance. 

Response. By specifying distances in 

our bald eagle nest disturbance general 

permit, we are not suggesting that all 

activities within these distances must 

apply for a permit. Rather, we are 

setting a standard that only those 

activities listed within the final rule 

(§ 22.280(b)) within these distances can 

receive a general permit. This standard 

is intended to prevent project 

proponents applying for unnecessary 

permits for activities beyond these 

distances that are unlikely to disturb 

breeding bald eagles. Further, the 

specific and general permits for nest 

disturbance are not a prerequisite to 

carrying out activities or starting 

projects. Instead, they cover any 

disturbance that may result as an 

unintentional consequence of an 

activity. If an individual or entity 

assesses that their activities are unlikely 

to disturb breeding eagles, they do not 

need the Service’s consent or 

concurrence to proceed, though they 

may be held liable if their activities do 

ultimately cause disturbance. 

The Service acknowledges the 

growing body of evidence 

demonstrating that some portions of the 

bald eagle breeding population 

demonstrate increased tolerance to 

human activities. Our standards under 

the nest disturbance general permit 

reflect this consideration. We use the 

330- and 660-foot distances for bald 

eagles because we are generally 

unconcerned with activities beyond 

these ranges, and we discourage 

proponents from applying for permits 

where best available science suggests 

they are unnecessary. Within those 

distances, project proponents may 

assess their relative risk to eagles (e.g., 

whether or not a similar activity is or 

has occurred closer to the nest) and 

determine whether or not to apply for a 

permit. 

Regarding alternate nests, we agree 

that, by definition, activities at these 

nests cannot expose breeding eagles to 

sensory disturbance, as the eagles are 

not present. However, as the National 

Bald Eagle Management Guidelines 

(2007) note, alterations to the nest site 

and surrounding habitat may discourage 

eagles from breeding when encountered 

by eagles returning to that nest site. We 

will continue to update the National 

Bald Eagle Management Guidelines as 

well as develop similar guidelines for 

golden eagles. 

Issue. We received requests for a 

regulatory authorization for State 

wildlife agencies for land-management 

activities that may improve eaglenesting habitat, including prescribed 

fire and mowing. 

Response. The Service acknowledges 

the usefulness of regulatory 

authorizations; however, we do not 

consider regulatory authorizations an 

appropriate mechanism to authorize the 

mortality or injury of bald eagles or 

golden eagles at this time. Most landmanagement activities, such as 

alteration of shorelines, alteration of 

vegetation, and prescribed burns, are 

eligible for general permits for eagle 

disturbance take. General permits for 

disturbance caused by agriculture, 

mining, and oil and gas operations are 

not available at this time. We have 

received permit requests for these 

activities infrequently, thus we have not 

yet developed standard avoidance and 

minimization measures. Operators of 

these and other activities may apply for 

specific permits. As we gain more 

information on the effects of these 

activities and identify effective 

avoidance and minimization measures, 

we may in future rulemakings add 

general-permit regulations for these and 

other activities. 

Issue. Commenters asked whether a 

single general permit authorizes several 

types of disturbance or whether a 

separate general permit will be needed 

for each type of disturbance that could 

occur. 

Response. Consistent with our current 

approach to permitting, a single permit 

for disturbance of bald eagle nests can 

authorize disturbance of a nest from 

multiple sources of disturbance of a 

single project or operation. For example, 

a general permit could authorize 

disturbance from land clearing, external 

construction, blasting, and operations 

and management activities associated 

with one project. The bald eagle nest 

disturbance permit is a ‘‘one permit, one 

nesting territory’’ system that simplifies 

our bald eagle population management 

tracking and reduces the amount of 

monitoring we require from permittees. 

Issue. Commenters also expressed the 

desire for one permit for all bald eagle 

disturbance associated with a given 

activity for the 5-year permit term. 

Response. Allowing coverage for an 

unspecified number of nests and ad hoc 

accounting of effects would hinder our 

ability to ensure take is consistent with 

the preservation standard established by 

the Eagle Act and implementing 

regulations. Individuals or entities that 

want to obtain coverage for disturbance 

of multiple nesting territories may apply 

for a specific permit. 

Nest Take 

Issue. Comments related to nest take 

centered on the creation of general 

permits and the lack of Service review 

of those permits. 

Response. General permits are 

generally limited to three scenarios: 

emergency circumstances, health and 

human safety concerns, or nests on 

human-engineered structures. These 

situations, such as wildfire hazard and 

structural failure, often pose risks to 

both the nest and for people. In these 

situations, it is often imperative that the 

permit be issued as quickly as possible, 

as doing so often reduces the risk or 

effects to eagles. The Service also has 

been implementing permits for these 

activities since 2009 and has welldeveloped permit conditions with 

avoidance and minimization measures. 

The expedient processing and 

standardized approach make these 

permits a great fit for general permits. 

The Service will review these permits. 

In reviewing bald eagle nest take 

permits at the program scale, given the 

current and expected number of permits 

issued and the status of the bald eagle, 

the Service is confident that issuance is 

consistent with the preservation of the 

bald eagle. We will continue to review 

nest take at the program scale to ensure 

that general permit issuance is 

consistent with the preservation of bald 

eagles. The Service will also audit a 

percentage of nest take permits, to 

ensure that the applicants meet 

eligibility criteria and comply with 

permit conditions. We will work to 


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address any compliance concerns with 

individual permittees. 

Issue. Some commenters requested 

that a single general permit for nest take 

authorize the take of multiple nests from 

a single project or across a defined area. 

Response. Issuing one general permit 

for each nest allows the Service to 

efficiently track take. If the Service 

allowed coverage for an unspecified 

number of nests, the associated ad-hoc 

accounting of effects would make it 

much more difficult for the Service to 

ensure authorized take is consist with 

the preservation standard. Specific 

permits remain available for the take of 

multiple nests. 

Issue. One commenter stated that the 

proposed regulation would no longer 

require the Service to make a finding of 

net benefit to eagles for nest take 

authorized under ‘‘other purposes.’’ The 

commenter interpreted the proposed 

rule to state that compensatory 

mitigation is required only when the 

take exceeds the limit of the applicable 

EMU. 

Response. Since 2009, the regulations 

require the finding of a net benefit to 

eagles for nest take authorized under 

‘‘other purposes.’’ For all nest-take 

requests outside of Alaska, a specific 

permit is required for the purposes of 

the Service determining whether a net 

benefit will be achieved by the proposed 

action, or, if the activity does not 

provide the net benefit, the 

compensatory mitigation proposal. The 

net benefit to eagles is scaled to the 

effects of the nest removal. The Service 

did include a general permit for ‘‘other 

purposes’’ in Alaska because of the 

scaled effects of nest removal. In Alaska, 

well-established permit conditions 

provide sufficient avoidance, 

minimization, and compensatory 

mitigation scaled to the effects of nest 

removal, given the robust population 

status of the bald eagle and the available 

nesting habitat. 

Issue. Some entities expressed 

support for the creation of general 

permits for golden eagle nest take. 

Response. The Service did not 

include but will continue to work to 

develop general permits for golden eagle 

nest take. The Service has issued few 

golden-eagle nest take permits and 

therefore does not have sufficient, wellestablished measures to create general 

conditions for golden eagle nest take. 

Issue. One commenter suggested that 

authorizing the take of eagle nests to 

protect threatened or endangered 

species should apply only to bald eagles 

due to the golden eagle’s population 

status. 

Response. With expanding bald eagle 

populations, the Service foresees 

situations arising where the take of an 

eagle nest may be necessary for the 

recovery of threatened or endangered 

species. However, the Service 

acknowledges the tradeoffs are more 

complex with golden eagles. Because 

this is an emerging issue, a specific 

permit must be obtained for this type of 

activity. The Service added an 

additional precaution in that the 

Federal, State, or Tribal agency 

responsible for the species of concern 

must obtain the permit. The Service will 

assess the tradeoffs between the eagle 

species taken and the endangered or 

threatened species. The Service will 

consider the evidence that eagles are 

limiting the recovery of a threatened or 

endangered species and analyze 

whether the eagle nest removal will 

improve recovery for the threatened or 

endangered species in question. The 

Service will consider if issuing this 

permit, including required avoidance 

and minimization measures and 

compensatory mitigation, is consistent 

with our preservation standard at both 

the LAP and EMU scale. Finally, the 

Service will consider if other methods 

are feasible that have less effect on 

eagles but will still abate or prevent the 

problem. As a final protection for 

golden eagles, the Service may require 

compensatory mitigation for the take of 

golden eagle nests. 

Permit Conditions 

Issue. Commenters asked whether the 

provisions in the new rule would apply 

to entities that currently have long-term 

incidental take permits and entities that 

applied but have yet to receive a permit. 

Response. Projects that have 

submitted an application as of February 

12, 2024, will have until August 12, 

2024, to choose whether to have their 

application reviewed and administered 

under all the provisions of the 2016 

regulations or all the provisions of these 

new regulations. Projects permitted 

under the 2016 regulations may 

continue under existing permit 

conditions until the permit expires. 

Permittees that want to modify existing 

permit conditions to comply with the 

new regulations may contact their 

permitting office at any time to 

determine whether a substantive 

amendment request or a new 

application is most appropriate. For 

qualifying projects that elect to have 

their pending applications reviewed and 

administered under all the provisions of 

these new regulations, application fees 

paid prior to August 12, 2024, may be 

used to pay for application and 

administration fees required under the 

new regulations. 

Issue. Multiple commenters expressed 

concerns over operations and 

maintenance staff conducting 

monitoring, suggesting that they might 

underreport their findings or that they 

would find too few available carcasses 

to provide useful information on eagle 

take. 

Response. There are two aspects to 

this concern. The Service acknowledges 

the concern about staff intentionally 

underreporting their findings. Based on 

input the Service received, we predict 

this will be a rare circumstance and one 

that can be discovered and addressed 

with the assistance of the Office of Law 

Enforcement. With any permit, there 

will be good actors and bad actors, and 

the Service will address bad actors 

accordingly. 

For the second aspect, the Service 

disagrees that concurrent monitoring 

will not provide useful information. 

Service analysis suggests that, on a large 

scale (e.g., aggregation of all general 

permits), concurrent monitoring will 

provide sufficient information over time 

to allow the Service to be confident that 

our resulting program-wide take 

estimates are consistent with the 

preservation of eagles. 

Issue. A commenter requested 

clarification as to when an adaptive 

management plan is required. 

Response. It is expected that wind 

energy project proponents will develop 

an adaptive management plan prior to 

or on obtaining a general permit. 

However, implementation of the 

adaptive management plan is required 

only if a certain number of fatalities are 

discovered at a wind energy facility. If 

three bald eagle injuries or mortalities, 

or three golden eagle injuries or 

mortalities, are discovered at a project 

during the 5-year general permit tenure, 

the permittee must provide the Service 

with an adaptive management plan and 

specify which avoidance and 

minimization measures the permittee 

will implement. If an injury or mortality 

of a fourth eagle of that species 

attributable to the project is discovered, 

the permittee must identify and 

implement the avoidance and 

minimization measures outlined in the 

adaptive management plan. Adaptive 

management plans may be revised 

during the permit tenure. A copy of 

adaptive management plan(s) may be 

requested by the Service at any time as 

part of an audit. 

Issue. One commenter asked for 

clarification whether circumstances 

impacting eagles outside of a specific 

permittee’s control (e.g., decrease or 

shift in population due to disease, 

climatic factors, or illegal take like 

poisoning and poaching) could result in 


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new obligations being imposed on a 

specific permit holder. 

Response. Circumstances outside the 

permittee’s and the Service’s control 

will continue to affect eagle 

populations. The permittee’s 

responsibility is to comply with the 

requirements of their permit. The 

Service’s responsibility is to ensure 

permits issued are consistent with the 

preservation of eagles, including at the 

EMU and LAP scales. If situations arise 

at the EMU and LAP scale that are 

detrimental to eagle populations, the 

Service may need to act to ensure 

preservation of eagles, which may 

include programmatic changes to 

permits or changes to a subset of 

permits. Generally, we will first attempt 

to address these issues modifying the 

requirements for or restricting new 

permits. However, consistent with 50 

CFR 13.23(b), the Service reserves the 

right to amend any permit for just cause 

at any time during its term, upon 

written finding of necessity. 

Power Lines 

Issue. Comments regarding eagle 

incidental take permits for power lines 

were focused primarily on the required 

conditions and definitions in the 

regulation. 

Response. The Service made several 

improvements to the power line 

regulation: 

1. To better align with standard 

industry terminology, the Service 

revised the term ‘‘electrocution-safe’’ to 

‘‘avian-safe.’’ 

2. The Service clarified that power 

line entities are required to ensure that 

all poles constructed in high-risk eagle 

areas are avian-safe, allowing the entity 

to determine those areas within the 

parameters provided by Service 

guidance. 

3. To address concerns regarding the 

siting of projects and buffer distances, 

we revised the conditions to read as 

follows: ‘‘For new construction and 

rebuild projects, reconstruction, or 

replacement projects, incorporate 

information on eagles into siting and 

design considerations. Minimize eagle 

risk by siting away from eagle use areas 

(e.g., nests and winter roosts), 

accounting for the risk to and 

population status of the species, unless 

this requirement would unduly impact 

human health and safety; require overly 

burdensome engineering; or have 

significant adverse effects on biological, 

cultural, or historical resources.’’ 

4. The Service modified the definition 

of ‘‘collision response strategy’’ to 

reflect that any risk-reduction strategies 

implemented post-collision should be 

commensurate with the collision risk. 

This may include no changes for one-off 

situations that are unlikely to reoccur. 

References to changes in engineering 

design have been removed and will 

instead be included in guidance. 

5. Many companies were concerned 

that the proactive retrofit strategy would 

be infeasible to implement. Proactive 

retrofit strategies are important, as they 

serve as the compensatory mitigation 

requirement for power line entities. 

However, the Service also wants to 

ensure that requirements are feasible. 

The Service modified the requirement to 

a 50-year strategy for investor-owned 

utilities and a 75-year strategy for noninvestor-owned utilities, with 5-year 

benchmarks. We also clarified that this 

requirement applies only to poles in 

high-risk eagle areas that are not aviansafe but may include other poles in the 

service area as well. The Service 

provides for delayed implementation to 

allow utilities to develop proactive 

retrofit strategies. The Service also 

provides for extenuating circumstances, 

such as catastrophic weather, wildfire, 

or other events that substantively 

disrupt power delivery, in 

implementing these strategies. Finally, 

we note that specific permits are 

available for any utility that is unable to 

implement the general permit 

requirements. 

6. The Service amended the 

conditions associated with the reactive 

retrofit strategy to clarify that the 

evaluation of the incident must be 

completed within 90 days and the 

response implemented within 1 year of 

the incident. 

7. The Service clarified that the 

minimum expectation for the eagle 

shooting response strategy is for utilities 

to notify the Office of Law Enforcement 

in the case of a confirmed or suspected 

shooting. However, we will work with 

industry to develop other commonsense response options. 

Issue. Several comments expressed 

concerns regarding the costs associated 

with implementing the avoidance and 

minimization measures for power lines. 

Response. The fees and costs to 

applicants to participate in the 

permitting framework have been 

updated and are included in the FEA. 

See tables 5–1 (No Action Alternative), 

5–4 (Alternative 2), 5–10 (Alternative 3), 

and 5–14 (Alternative 4). These tables 

comprise all fees and costs that a 

permittee is expected to accrue in 

applying for and complying with all 

permits. As stated in section 5.6.5 of the 

FEA, the Service assumes that power 

line entities most likely to apply for a 

permit are entities that have a risk of 

taking eagles and are already retrofitting 

power poles, thus already meeting this 

requirement. Therefore, the Service does 

not anticipate an added cost to power 

line entities for the retrofit requirement. 

Specific Permits 

Issue. Several commenters expressed 

concerns with delays in specific permit 

issuance review and requested that the 

Service further streamline the specific 

permit process. 

Response. The Service will be 

implementing several approaches to 

improve efficiency in the specific 

permit process. One approach codified 

in this rulemaking is the creation of new 

tiers for reviewing specific permit 

applications. These tiers separate the 

specific permit applications that require 

extensive review and negotiation from 

those that do not, creating a streamlined 

approach and corresponding reduced 

application fee for projects that meet the 

new Tier-1 criteria. 

In addition to creating a tiered 

approach allowing faster processing for 

Tier-1 specific permits, the Service will 

institute a procedural change to further 

expedite review of some projects. To 

date, 42 eagle incidental take permits 

have been issued to wind energy 

projects across the country. While all 

permit decisions were analyzed in an 

EA or, occasionally, an EIS, our 

experience with issuing these permits 

has led us to conclude that a categorical 

exclusion would be appropriate for most 

permit decisions because relevant 

environmental impacts for most 

decisions have already been analyzed in 

the 2016 PEIS and extraordinary 

circumstances are unlikely to apply, 

given the general impacts we disclosed 

in our NEPA analyses for previously 

analyzed decisions. Specific permit 

decisions we expect to categorically 

exclude from further NEPA analysis 

must, at a minimum, include the 

following criteria: (1) Estimated annual 

eagle take, after compensatory 

mitigation (if required), is below EMU 

take limits; (2) estimated annual eagle 

take, combined with other authorized 

take in the vicinity, does not exceed five 

percent of the project-specific Local 

Area Population; (3) permit conditions 

do not have the potential to cause 

effects on cultural resources or other 

historic properties protected by the 

National Historic Preservation Act; (4) 

permit issuance will not be precedent 

setting; (5) the permit decision and 

permit conditions will not be based on 

take estimates produced from new or 

unpublished methods or models; and (6) 

no other extraordinary circumstances 

that prevent application of the 

categorical exclusion exist. If the 

Service determines categorical 

exclusion is not appropriate, the Service 


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will initiate an EA or EIS in accordance 

with NEPA. To ensure linear and 

efficient progress, substantive Service 

work on these documents will begin 

after the applicant and the Service have 

completed negotiations on the 

conditions of the permit. 

Tribal Concerns 

Issue. There were concerns expressed 

regarding the removal of protections 

from § 22.85 of the existing regulations, 

including the following: 

• Evaluation of cultural significance 

of a local eagle population; 

• Finding of a practicable alternative 

to nest removal; 

• Finding of a net benefit to eagles 

and subsequent compensatory 

mitigation; 

• Determination of whether suitable 

nesting and foraging habitat is available 

to accommodate eagles displaced by 

nest removal; and 

• Finding that permits will not 

preclude higher priorities, including 

Native American Tribal religious use. 

Response. The Service did not intend 

to remove the protections listed above. 

Many were moved to other sections or 

condensed with other regulatory 

language with the intent to provide 

clarity. However, comments indicate 

this rearrangement did not improve 

clarity. We have re-expanded the 

regulatory language or relocated the 

language to the expected locations. 

Issue. Several comments from Tribes 

focused on the creation of general 

permits, particularly for nest take and 

nest disturbance. 

Response. Regarding opposition to 

general permits for nest take and nest 

disturbance, the Service notes that these 

permits are only for emergencies, for 

health and safety issues, or on humanengineered structures. In most cases, 

these situations are a risk to both eagles 

and humans. The qualifications for 

specific and general permits for nest 

disturbance and nest take are 

comparable to the standards established 

in 2016. Additionally, the conditions for 

our general permits will be based on the 

conditions the Service commonly 

requires in its current specific nest take 

and nest disturbance permits. While we 

are aiming to make applying easier for 

project proponents by simplifying the 

administrative process, we are not 

making permits easier to secure in the 

sense of relaxing requirements to protect 

eagles. 

The standards we are establishing 

around general permits for take and 

disturbance of bald eagle nests will 

assure continued preservation of this 

species for two reasons: First, because 

those standards are based on the 

knowledge and experience we have 

gained from issuing and monitoring 

hundreds of permits over nearly two 

decades, and second, a growing body of 

scientific literature has demonstrated 

that breeding bald eagles show a higher 

tolerance and resilience to disturbance 

and other impacts than previously 

thought. We do not have comparable 

data or experience in managing golden 

eagle nests and have therefore not 

opened the general-permit program up 

to removal or disturbance of goldeneagle nests in this rulemaking. 

We acknowledge and appreciate 

Tribal concerns regarding the degree of 

oversight required for general permits 

when compared to specific permits. As 

part of this final rule, we have added a 

new eligibility restriction for nestdisturbance and nest-take activities in 

Indian country, as defined in 18 U.S.C. 

1151, after recent consultation with 

Tribes. General permits will not be 

available for nest take or nest 

disturbance for nest structures located 

in Indian country, unless requested by 

the Tribe itself. Furthermore, the 

Service will make publicly available a 

list of all general permits issued, which 

Tribes can review. We will be 

implementing an audit program to 

ensure that those participating in our 

general permits are truly eligible and are 

complying with the permits’ terms. For 

specific permits, the Service will 

continue to notify Tribes regarding 

activities conducted on their lands. 

Issue. Many Tribes believe the new 

regulations remove opportunities for 

Tribal engagement and bypass 

government-to-government 

consultation, especially for potential 

impacts to Tribal lands or resources. 

Response. Throughout all phases of 

the rulemaking process, the Service has 

encouraged and continues to welcome 

government-to-government 

consultation. In addition, we conducted 

multiple information sessions 

specifically for Tribes. The Service 

acknowledges our Federal Tribal trust 

responsibilities and deeply honors our 

sovereign nation-to-nation relationship 

with Tribes. To date, one Tribe 

requested government-to-government 

consultation regarding this regulation. 

The Service made modifications to the 

final rule based on this consultation. We 

invite bilateral government-togovernment consultation at any time. 

Wind Energy 

Issue. Some commenters expressed 

concerns about the cumulative impacts 

of wind energy projects on the 

landscape on eagle populations, 

particularly at the LAP scale. 

Response. The Service has considered 

at length how to implement general 

permits for wind projects that are 

consistent with the regulatory 

preservation standard at the LAP scale. 

The Service will use all available 

information and the best available tools 

to estimate where authorized take rates 

may be the highest relative to our 

estimated eagle-population densities. 

Further, we will require Serviceapproved in-lieu fee programs to 

allocate a small amount of 

compensatory mitigation from each 

general permittee to be available to 

address LAP concerns. With these extra 

mitigation funds, in-lieu fee programs 

can deploy compensatory mitigation for 

eagles in areas where LAP thresholds 

are close to being exceeded (or have 

been exceeded). If, after expenditure of 

these funds, the Service still determines 

that general-permit issuance is not 

consistent with the preservation 

standard, we retain the right to amend, 

suspend, or revoke general permits in 

order to safeguard local eagle 

populations. 

Issue. We received comments 

regarding the take thresholds associated 

with wind energy general permits, 

including comments that such 

thresholds are not necessary for bald 

eagles, that such thresholds may cause 

the general permit program to fail, and 

requests to remove species-specific take 

thresholds. 

Response. The Service calculated the 

take threshold for bald eagles and the 

take threshold for golden eagles to 

ensure general permitting is consistent 

with the preservation of both eagle 

species. The calculated threshold for 

each species ended up being four eagles. 

Ensuring take is compatible with eagle 

preservation primarily depends on the 

take rates for each eagle species, not the 

combined take rate of eagles in general. 

Therefore, there are separate take 

thresholds for each species, not a 

combined threshold for ‘‘eagles.’’ 

Finding four golden eagles creates a 

fatality estimate similar to what we 

would expect to see at an average-sized 

project in the specific-permit zone. 

Finding four bald eagles would produce 

a similar result. However, a project that 

discovers two dead bald eagles and two 

dead golden eagles during one permit 

term would be taking eagles at lower 

rates than expected under specific 

permits and, thus, a general permit is 

appropriate. 

In response to comments that general 

permit take thresholds are not necessary 

for bald eagles, we reiterate that the goal 

of these thresholds is to ensure that the 

Service has appropriately accounted for 

the level of eagle take for projects 


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receiving general permits in a way that 

is consistent with our preservation 

standard and ensure that projects with 

relatively high risk to eagles (of either 

species) are paired with the most 

appropriate management actions that 

are commensurate with higher or 

uncertain take rates. Exceeding the 

discovered eagles thresholds established 

by these regulations is not a violation of 

the permit. Rather, a project that 

discovers more than established 

thresholds indicates that there are 

potentially unique circumstances at the 

project site that would benefit from 

Service engagement through the specific 

permit process. The specific permit 

process allows for Service review of 

site-specific data and collaboration with 

the permit applicant on development of 

additional data collection and 

avoidance and minimization approaches 

appropriate for the project to ensure 

permit issuance criteria are met and that 

authorized take is consistent with our 

preservation standard, particularly at 

the local scale. This is not possible 

under an automated general permit 

process. 

In response to the comment that the 

general permit program is likely to fail, 

our analysis of take in the general 

permit zones suggests that it should be 

a rare wind project in the general permit 

zone that takes eagles at rates high 

enough to discover four or more bald 

eagles within a 5-year period. Our 

estimates for even large wind projects in 

the general permit zone are substantially 

lower than estimated bald eagle 

fatalities at a similar-sized project in the 

specific permit zone, on which the foureagle threshold was based. Thus, we 

expect that only a small proportion of 

projects receiving general permits will 

exceed the bald eagle threshold. 

Issue. The Service received multiple 

comments regarding the use of Evidence 

of Absence software (Dalthrop et al. 

2017) for specific permits; many of the 

comments requested that the Service 

eliminate the use of Evidence of 

Absence software as a compliance 

measure. Instead of Evidence of 

Absence software, one commenter 

suggested the Service should instead 

assess compliance based on the actual 

number of eagles found during fatality 

monitoring. 

Response. The Service recognizes the 

limitations of Evidence of Absence 

software. Therefore, on specific permits 

the Service will authorize incidental 

take of bald eagles, golden eagles, or 

both but will not specify a take limit. 

The Service will continue to use the 

best available statistical programs to 

evaluate and estimate mortality rates. 

Currently Evidence of Absence software 

is the best estimator available to handle 

zero-inflated data (i.e., data that has an 

excess of zero counts). The Service will 

use estimated mortality rates to 

calculate compensatory mitigation 

requirements. The Service will also use 

estimated mortality rates to estimate the 

number of eagles authorized for internal 

tracking purposes. The Service will use 

estimated mortality rates for eagles 

instead of number of eagles found, as 

this approach is more appropriate for 

understanding how permit issuance 

effects eagle populations. 

Issue. Multiple comments expressed 

disapproval of the Collision Risk Model 

(CRM), with some stating the lack of 

predictability with the CRM results in 

increased costs and timelines. 

Response. The Service recognizes 

that, as with all models, we must 

continue working to improve the CRM. 

However, the CRM represents the best 

science available today. The CRM was 

developed using site-specific and 

species-specific eagle exposure and 

eagle collision data provided from wind 

energy facilities across the Nation and 

represents the best available data to 

assess risk to eagles by turbines. The 

Service’s CRM evaluates risk across 

projects in a consistent and predictable 

way while accounting and managing for 

uncertainty. The Service uses sitespecific data to inform the CRM and 

have the estimate reflect risk for a given 

project while accounting for variability 

in both eagle use and collision risk. In 

the 2016 eagle rule and PEIS, the 

Service described the adaptive 

management framework for 

authorization of eagle take. At wind 

facilities, the Services uses monitoring 

data—consistent with methods outlined 

in the Land-Based Wind Energy 

Guidelines (www.fws.gov/media/landbased-wind-energy-guidelines)—to 

inform the initial take authorization for 

a permit. We use monitoring data 

collected under the permit to update the 

estimates over time. Any mitigation 

paid by the permittee initially that 

exceeds updated take estimates is 

credited forward, reducing future 

mitigation burden. 

The Service can evaluate alternative 

models as part of the adaptive 

management framework over time; 

however, to ensure consistency and 

adherence to management objectives, 

initial permit estimates are based on our 

peer-reviewed modeling framework. 

Monitoring can be designed, in 

coordination with the Service, to 

compare updates to the CRM modeling 

framework to results from other models. 

Any comparison would need to evaluate 

the model’s ability to quantify 

uncertainty. Similarly, the Service’s 

eagle permit biologists consider all sitespecific data available when thinking 

about potential avoidance and 

minimization measures that may reduce 

risk at a given project, but rely on the 

CRM and consistent, representative 

monitoring data to represent risk across 

all permitted projects. Site-specific data 

(e.g., mortality monitoring) without use 

of a model designed to extrapolate 

beyond the monitoring period does not 

appropriately account for variability in 

eagle risk. 

The Service will use the CRM to 

calculate eagle fatalities for internal 

tracking and calculating mitigation 

requirements for specific permits. While 

the Service generally does not 

recommend that project proponents 

propose an alternative CRM, under the 

new rule Tier 2 specific permittees with 

a reimbursable agreement may request 

consideration of an alternative CRM. 

The Service will review these requests 

on a case-by-case basis and anticipates 

requiring, at a minimum, publication of 

the alternative CRM in the Federal 

Register for public review at the cost of 

the applicant, including quantification 

of the uncertainty of the model (i.e., 

confidence in the estimate). The Service 

may also require third-party monitoring 

to validate the model. 

Issue. Commenters requested 

clarification on take limits associated 

with the permits. 

Response. Wind energy general 

permits and specific permits will not 

have a take limit associated with them. 

Wind projects with a general permit 

cannot discover four or more bald eagles 

or four or more golden eagles within a 

5-year permit term and remain eligible

for another general permit in the future.

We will continue to estimate take at

wind projects for both general and

specific permits to ensure consistency

with the preservation standard and, for

specific permits, determine required

compensatory mitigation. For specific

permits, the Service will require

additional compensatory mitigation if it

concludes (through data received in

annual reporting or otherwise) that

permitted take exceeds the level of

compensatory mitigation already

provided. If we determine that take at a

permitted facility is not consistent with

our preservation standard, we will

conduct an administrative check-in and

likely require amendments to the

permit.


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9942 Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Rules and Regulations 

Required Determinations 

Regulatory Planning and Review 

(Executive Orders 12866, 13563, and 

14094) 

Executive Order 12866 (E.O. 12866), 

as reaffirmed by E.O. 13563 and E.O. 

14094, provides that the Office of 

Information and Regulatory Affairs 

(OIRA) in the Office of Management and 

Budget (OMB) will review all significant 

rules. OIRA has determined that this 

rulemaking action is significant. 

Executive Order 14094 reaffirms the 

principles of E.O. 12866 and E.O 13563 

and states that regulatory analysis 

should facilitate agency efforts to 

develop regulations that serve the 

public interest, advance statutory 

objectives, and are consistent with E.O. 

12866, E.O. 13563, and the Presidential 

Memorandum of January 20, 2021 

(Modernizing Regulatory Review). 

Regulatory analysis, as practicable and 

appropriate, shall recognize distributive 

impacts and equity, to the extent 

permitted by law. E.O. 13563 

emphasizes further that regulations 

must be based on the best available 

science and that the rulemaking process 

must allow for public participation and 

an open exchange of ideas. We have 

developed this rule in a manner 

consistent with these requirements. 

Costs and benefits of the rule can be 

broken down into three categories; 

impacts to permittees, impacts to the 

Service, and societal impacts. Impacts to 

permittees include permitting costs as 

described in Table 1, below, as well as 

other unquantifiable costs such as the 

costs associated with reading and 

understanding the rule, time spent on 

permit application, and costs associated 

with training staff on the requirements 

of the rule. Benefits to permittees 

include the ability to acquire a permit 

and eliminate the risk of enforcement 

associated with incidental eagle take. 

Where the costs of the proposed permit 

exceed the benefits associated with the 

risk of enforcement (e.g., projects with 

low risk of incidental eagle take or 

projects with perceived low risk of legal 

enforcement), we do not expect entities 

to apply for a permit. Impacts to the 

Service include costs associated with 

processing and auditing these permits; 

these costs are anticipated to be less 

than the benefits of anticipated 

reductions in staff time associated with 

processing these permits, as general 

permits can be issued without the need 

for Service interaction. Societal impacts 

include benefits associated with an 

anticipated increase in eagle 

populations associated with reduced 

incidental take and beneficial activities 

associated with compensatory 

mitigation requirements; no societal 

costs are assumed. 

Table 1 below shows the permit count 

and cost under the 2016 regulations, the 

expected number of permits and average 

permit costs under this rule, and the 

estimated marginal costs and impacts 

between the 2016 regulations and this 

rule. Additional analysis is available in 

the supporting FEA. 

BILLING CODE 4333–15–P 


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Table 1-Average Annual Cost and Permit Count Comparison Between 2016 

Regulations and This Rule 

2016 Regulations This Rule 

Number Marginal Cost Change from 

Type of Permit Factors of Fees and Costs per 

Number 2016 Regulations to this Rule 

Annual Permit of Annual Fees and Costs per Permit ( savings in parentheses) 

Permits Permits 

Permit 

Application $1,000 $1,000 

Fee 

Administration $2,500 (Tier 1) $2,500 (Tier 1) 

Fee $10,000 (Tier 2) $10,000 (Tier 2) 

Average Note: the current framework does 

Compensatory not include wind energy general 

Wind Energy Mitigation permits. The corresponding 22 (Tier l); $37,200 $37,200 

Project (General) Costs existing type of permits are wind 52 (Tier 2) 

Average energy specific permits, the 

Monitoring numbers and costs of which are $0 $0 

Costs included below. 

Average Cost $40,700 (Tier 1) $40,700 (Tier 1) 

Per Permit $48,200 (Tier 2) $48,200 (Tier 2) 

Average 

Annual Cost $3,401,800 $3,401,800 

to Industry 

$18,000 (SP Tier 1) 

$26,000 (SP Tier 2) 

Permit $82,000 (SP Tier 2 with 

Application $36,000 reimbursable agreement) ($10,000) 

Fee ( assumes that the average 

project will be a SP Tier 2 

oroiect) 

Administration $8,000 $10,000 $2,000 Fee 

Wind Energy Average 6 6 Project (Specific) Compensatory $960,000 $1,080,000 $120,000 Mitigation 

Costs 

Average 

Monitoring $1,100,000 $1,100,000 $0 

Costs 

Average Cost $2,104,000 $2,216,000 $112,000 Per Permit 

Average 

Annual Cost $12,624,000 $13,296,000 $672,000 

to Industrv 

Permit 

Application $1,000 $1,000 

Fee 

Power Line Entities Note: the current framework does 4 (Tier 

Administration not include power line entity 1)0.2 (Tier $2,500 (Tier 1) $2,500 (Tier 1) (General) Fee general permits 2) $10,000 (Tier 2) $10,000 (Tier 2) 

Average 

Power Pole $0 $0 

Retrofit Costs 
9944 Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Rules and Regulations 

BILLING CODE 4333–15–C 

The maximum total estimated annual 

cost to industry for this rule is 

$16,821,500. The maximum total 

estimated cost over 5 years for all 

permits is $84,107,500. The average 

annual equivalent cost is $13,794,294 

with a total net present value cost of 

$68,971,471 using a 7 percent discount 

rate. The average annual equivalent cost 

is $15,407,509 with a total net present 

value of $77,037,544 at a 3 percent 

discount rate. These discount rates 

represent a range of values that the 

Office of Management and Budget 

recommends as a Federal-program 

discount rate for benefit-cost analysis 

for most Federal programs. The above 

costs represent the total gross cost of the 

rule and do not reflect the costs 

associated with the existing regulations. 

This rule is expected to create an 

estimated maximum of $3,857,500 in 

new costs annually and $19,287,500 in 

new marginal costs over 5 years, as 

compared to the 2016 regulations. These 

estimates represent the maximum 

quantifiable costs; they do not represent 

other costs that may be incurred, such 

as the costs for entities to read and 

understand the rule, time spent on 

permit application, and costs associated 

with training staff on the requirements 

of the rule. However, these new 

marginal costs are more than offset by 

savings to both industry and the Service 

in terms of reduced Eagle Act 

enforcement costs and no requirements 

for preconstruction monitoring under 

general permits and the removed 

requirement for third-party monitoring 

under specific permits. The anticipated 

74 wind-energy projects and 4 powerline entities that annually receive and 

comply with a permit will no longer be 

subject to potential enforcement under 


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Average Cost $3,500 (Tier I) $3,500 (Tier I) 

Per Permit $ 11, 000 (Tier 2) $11, 000 (Tier 2) 

Average 

Annnal Cost $16,200 $16,200 

to Industrv 

Permit 

Application $500 $500 

Fee 

Compensatory Note: the current framework does 

Mitigation not include nest disturbance $0 $0 

Nest Disturbance 

Costs general permits. The corresponding 

(General) Monitoring existing type of permits are nest 81 $0 $0 Costs disturbance specific permits, the 

Average Cost numbers and costs of which are $500 $500 Per Permit included below 

Average 

Annual Cost $40,500 $40,500 

to Industry 

Permit 

Application $2,500 $2,500 $0 

Fee 

Compensatory 

Mitigation $0 $0 $0 

Nest Disturbance 

Costs 

Monitoring 96 14 (Specific)) Costs $0 $0 $0 

Average Cost $2,500 $2,500 $0 Per Permit 

Average 

Annual Cost $240,000 $35,000 ($205,000) 

to Industry 

Permit 

Application $500 $500 

Fee 

Compensatory Note: the current framework does 

Mitigation not include nest take general $0 $0 

Costs permits. The corresponding 

Nest Take (General) Monitoring existing type of permits are nest 34 $0 $0 Costs take specific permits, the numbers 

Average Cost and costs of which are included $500 $500 Per Permit below 

Average 

Annual Cost $17,000 $17,000 

to Industry 

Permit 

Application $2,500 $2,500 $0 

Fee 

Compensatory 

Mitigation $0 $0 $0 

Costs 

Nest Take (Specific) Monitoring 40 $0 6 $0 $0 Costs 

Average Cost $2,500 $2,500 $0 Per Permit 

Average 

Annual Cost $100,000 $15,000 ($85,000) 

to Industry 

Average Annual Permits Counts and 142 $12,964,000 219 $16,821,500 $3,857,500 Costs' 
Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Rules and Regulations 9945 

the Eagle Act, which can result in 

substantial legal costs, nor will they 

incur costs to estimate and reduce their 

legal risks, which may include 

biological surveys and hiring staff and 

attorneys. While this total reduced 

enforcement cost is not quantifiable due 

to limited data, the Service expects that 

the savings exceed the total new costs 

associated with this rule. The costs of 

this rule are also offset by the 

ecosystem-services benefits associated 

with potential decreased take leading to 

increased populations of eagles. 

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, 201, 110 Stat. 847)), 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 

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. Thus, for a regulatory flexibility 

analysis to be required, impacts must 

exceed a threshold for ‘‘significant 

impact’’ and a threshold for a 

‘‘substantial number of small entities.’’ 

See 5 U.S.C. 605(b). We examined this 

rule’s potential effects on small entities 

as required by the Regulatory Flexibility 

Act and certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This analysis first estimates the number 

of businesses potentially impacted and 

then estimates the economic impact of 

this rule. 

To assess the effects of this rule on 

small entities, we focus on the proposed 

general and specific permit approach for 

incidental take by wind-energy facilities 

and electric-transmission companies. 

We also address nest disturbance and 

nest take permits for businesses in other 

sectors, such as housing and building 

construction, railroads, timber 

companies, pipeline companies, and 

gold ore mining. 

Using the North American Industry 

Classification System (NAICS), the U.S. 

Small Business Administration (SBA) 

defines a small business as one with 

annual revenue or employment that 

meets or is below an established size 

standard. While the NAICS was updated 

in 2023, we are using the 2017 NAICS 

to best compare to the most recent 2017 

Statistics of U.S. Businesses (SUSB) 

tables that contain information on 

receipts. Relevant 2017 NAICS small 

business definitions include: 

b fewer than 250 employees for 

‘‘Wind Electric Power Generation’’ 

(NAICS sector 221115), 

b fewer than 1,000 employees for 

‘‘Electric Power Distribution’’ (NAICS 

sector 221122), 

b fewer than 500 employees for 

‘‘Logging’’ (NAICS sector 113310), 

b less than $36.5 million of average 

annual receipts for ‘‘Construction of 

Buildings’’ (NAICS sectors 236115, 

236116, 236117, 236210, and 236220), 

b less than $36.5 million of average 

annual receipts for ‘‘Highway, Street, 

and Bridge Construction’’ (NAICS sector 

237310), 

b less than $15.0 million of average 

annual receipts for ‘‘Support Activities 

for Rail Transportation’’ (NAICS sector 

488210), and 

b fewer than 1,500 employees for 

‘‘Gold Ore Mining’’ (NAICS sector 

212221). 

Table 2 indicates the number of 

businesses within each industry and the 

estimated percentage of small 

businesses impacted by this rule. 

TABLE 2—DISTRIBUTION AND POTENTIAL IMPACT TO BUSINESSES 1

NAICS code Description 

Total 

firms/establishments 

Small businesses 

potentially impacted 

by this rule 

Number of 

all 

businesses 

Number of 

small 

businesses Number Percentage 

221115 ..................... Wind Electric Power Generation 2 ............................................. 459 135 22 16 

221122 ..................... Electric Power Distribution 3 ...................................................... 1,233 1,169 0 0 

113310 ..................... Logging 4 ................................................................................... 7,992 7,977 up to 13 <1 

236115 ..................... New Single-family Housing Construction (Except For-Sale 

Builders) 4.

49,215 49,143 up to 13 <1 

236116 ..................... New Multifamily Housing Construction (Except For-Sale Builders) 4.3,175 2,851 up to 13 <1 

236117 ..................... New Housing For-Sale Builders 4 ............................................. 15,483 15,099 up to 13 <1 

236118 ..................... Residential Remodelers 4 .......................................................... 103,079 102,998 up to 13 <1 

236210 ..................... Industrial Building Construction 4 .............................................. 2,997 2,847 up to 13 1 

236220 ..................... Commercial and Institutional Building Construction 4 ............... 38,079 36,100 up to 13 <1 

237310 ..................... Highway, Street, and Bridge Construction 4 ............................. 8,826 8,198 up to 13 <1 

237990 ..................... Other Heavy and Civil Engineering Construction 4 ................... 4,165 4,052 up to 13 <1 

488210 ..................... Support Activities for Rail Transportation 4 ............................... 564 484 up to 13 3 

212221 ..................... Gold Ore Mining 4 ...................................................................... 147 132 up to 2 2 

1 Data is from the latest Statistics of U.S. Businesses (SUSB) tables that contain information on receipts, which is from 2017. 

2The number of potentially impacted small businesses is based on the distribution of businesses by enterprise size from 2017 SUSB data tables, the total number of estimated annual permits, and the small business standards threshold from SBA. 3Permitting will be required at a large utility scale similar to existing Special Purpose Utility permits (SPUT permits) that the Service issues. 

4We estimate that the number of nest disturbance and nest take permits will be similar to the number issued over the last 5 years: 677. The 

non-electric and wind power generation NAICS represent sectors that have historically requested permits. We evenly distributed the estimated 

total amount of disturbance and take permits across all sectors, with the exception of gold ore mining, for the 5-year period, which comes to 67 

permits. Gold ore mining entities have historically applied for only 1 to 2 permits per year, or up to 10 over a 5-year period. We also assumed an 

evenly distributed number of permits across each year, 13, for the remainder of the sectors. 


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9946 Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Rules and Regulations 

In the last 5 years (2017 through 

2022), the Service has issued 26 permits 

to wind-energy generation facilities and 

677 specific permits to other entities, 

which averages about 141 permits 

annually. For the 677 non-wind specific 

permits, most were issued to businesses 

and to government agencies, and the 

remaining were issued to individuals. 

The number of specific permits issued 

under this rule over the first 5 years may 

be higher or lower than the existing 

permit program under the 2016 

regulations due to the creation of 

general permits and the remaining 

complexity associated with specific 

permits. General permits typically allow 

the regulated community to apply for 

and obtain a permit more easily, 

particularly when projects are designed 

at the outset to comply with generalpermit eligibility criteria. Specific 

permits are available to wind-energyproject applicants that do not meet 

general-permit eligibility criteria. Based 

on these assumptions, we estimate that 

the number of specific permits under 

this rule will be similar to the number 

of existing permits over the last 5 years, 

which is close to 30 permits. Although 

small, noncommercial, wind-energy 

facilities (e.g., single-turbine facilities 

connected to public buildings) could 

apply for incidental take permits, we 

anticipate that most of the applications 

for wind-energy facilities will be for 

utility-scale projects. The largest 

expected impacts to small businesses 

under this rule would be an increase in 

the number of permits issued to windenergy generation facilities due to the 

changes being made in the application 

requirements and the availability of 

general permits and the inclusion of 

general and specific permits tailored to 

power-line entities. We expect that this 

rule will impact 16 percent of windenergy generation small businesses, 

with the expected costs of such permits 

described in tables 3 (general permits) 

and 4 (specific permits), and a 

breakdown of general permits by 

enterprise size category in table 5. 

Electric power distribution entities 

are eligible for both general and specific 

incidental take permits in the proposed 

regulation. However, based on the 

NAICS definitions, we assume that none 

of the potential electric power 

distribution permittees would be small 

businesses. 

Businesses that apply for nest take 

and nest-disturbance permits typically 

include home construction, road 

construction, and various other 

construction projects. We assume that 

the number of nest take and nest 

disturbance permits will continue along 

this trend over the next 5 years. For this 

analysis, we evenly distributed those 

permits across industry sectors that best 

represent the NAICS industry sectors 

that applied for permits historically. We 

anticipate the number of permit 

applicants in those sectors would be 

relatively small, on the order of 1 to 13 

per year for each sector, except gold ore 

mining, which historically applied for 

only 1 to 2 permits annually. As a 

result, this rule will impact less than 1 

to 2.5 percent of small businesses in 

NAICS sectors 236115, 236116, 236117, 

236118, 236210, 236220, 237310, 

237990, 488210, and 212221. The cost 

per entity for nest take and nest 

disturbance permitting under this rule is 

minimal, totaling $100 per eagle or nest, 

per year. The minimal cost of these 

permits is not expected to result in a 

significant impact to small businesses in 

these sectors, regardless of the total 

percentage of small businesses impacted 

as a whole. 

As described above, the wind-energy 

generation industry is the only industry 

for which specific and general permits 

could result in a significant impact on 

small businesses. Table 3 shows the 

expected difference between 5-year 

costs for specific permits and 5-year 

costs for general permits for windenergy generation facilities. Windenergy generation facilities will pay less 

for a general permit compared to the 

costs associated with a standard permit 

under the 2016 regulations. The permit 

application fee (including costs for 

auditing) is reduced from $36,000 to 

$1,000 for a general permit. In addition, 

applicants will pay an administration 

fee of either $2,500 (Tier 1) or $10,000 

(Tier 2), as compared to the existing 

specific permit administration fee of 

$8,000. Compensatory mitigation costs 

for general permits for a wind-energy 

project will average $37,200. This is a 

significant decrease from the specificpermit cost under the 2016 regulations 

of $960,000 (using our calculation from 

the EA of $120,000 as the cost of an 

eagle credit). The average costs for 

monitoring for a wind-energy project 

will be negligible, a cost savings from 

the specific permit monitoring cost 

estimates of $1,100,000 under the 2016 

regulations. The total estimated cost 

savings between a specific permit under 

the 2016 regulations and a general 

permit under this regulation is therefore 

slightly over $2,000,000 per permit 

(depending on whether the project is a 

Tier 1 or a Tier 2 project). The total 

number of estimated permits shows an 

estimated overall increase in industry 

costs associated with permitting under 

this rule, but only because the Service 

expects a substantial jump in 

participation across industry due to the 

improvements in the permit process and 

reduction in costs and time required per 

permit. 

TABLE 3—WIND GENERAL PERMIT COSTS AND SAVINGS

[5-Year costs] 

Cost category 

Specific—2016 

regulations 

(average) 

General—this rule 

(average) 

Cost savings 

(average) 

Permit application fee ............................. $36,000 $1,000 .................................................... $35,000. 

Administration Fee ................................. 8,000 2,500 (Tier 1); 10,000 (Tier 2) ............... 5,500 (Tier 1); (2,000) (Tier 2). 

Compensatory Mitigation Costs ............. 960,000 37,200 .................................................... 922,800. 

Monitoring Costs .................................... 1,100,000 0 ............................................................. 1,100,000. 

Total Cost ........................................ 2,104,000 40,700 (Tier 1); 48,200 (Tier 2) ............. 2,063,300 (Tier 1); 2,055,800 (Tier 2). 

Table 4 displays the new cost for 

specific permits under this rule 

compared to the cost for specific 

permits under the 2016 regulations. 

Under this rule, entities will pay 

$1,080,000 for compensatory mitigation, 

an increase of $120,000 from the 

$960,000 cost under the 2016 

regulations. These costs have increased 

due to updates in the estimated amount 

of required mitigation for projects in the 

specific-permit category. The Service 

may issue three types of wind-energy 

specific permits under this rule. Tier 1 

permits are for the simplest types of 


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Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Rules and Regulations 9947 

projects and would require a $10,000 

permit-application cost. Tier 2 permits 

are similar to existing specific permits 

and require a $26,000 permit 

application cost. Tier 2 with 

reimbursable agreement permits require 

permittees to pay for staff time via a 

reimbursable agreement above and 

beyond the $26,000 permit application 

cost. For purposes of this analysis, we 

assume that the average specific permit 

will be a Tier 2 permit with the same 

permit-application cost as the specificpermit structure under the 2016 

regulations. Entities will continue to 

pay their own monitoring costs 

estimated at $1,100,000 over the life of 

the permit. As a result, the total average 

cost increase to entities receiving a 

wind-energy specific permit under this 

rule is $112,000. 

TABLE 4—WIND ENERGY SPECIFIC PERMIT COSTS AND SAVINGS

[5-Year costs] 

Cost category 

Specific—2016 

regulations 

(average) 

Specific— 

this rule 

(average) 

Cost savings 

(average) 

Permit Application Fee ............................................................................................................ $36,000 $26,000 $10,000 

Administration Fee ................................................................................................................... 8,000 10,000 (2,000) 

Compensatory Mitigation Costs ............................................................................................... 960,000 1,080,000 (120,000) 

Monitoring Costs ...................................................................................................................... 1,100,000 1,100,000 0 

Total Cost ......................................................................................................................... 2,104,000 2,216,000 (112,000) 

Businesses in the ‘‘wind electric 

power generation industry’’ are defined 

as small if they have fewer than 250 

employees. The 2017 SUSB Annual 

Data Tables report the annual payroll 

amounts by industry that fall within 

enterprise size categories. The data for 

‘‘wind electric power generation’’ does 

not contain a range for businesses with 

under 250 employees; the closest 

reporting range is fewer than 500 

employees. Table 5 shows a range of 

receipts by enterprise size and 

establishment count as well as the 

projected percentage of receipts 

impacted by this rule both at the 

individual establishments level and the 

total for that enterprise size. The windenergy project general-permit cost will 

be paid in full at the time of the permit 

application; therefore, the 5-year cost of 

$48,200 is assessed in the first year. 

This cost would then be assessed again 

at the renewal of the permit in 5 years. 

Due to this being a one-time cost that 

covers a 5-year period, this amount 

equates to at most one percent of total 

annual receipts by enterprise size (table 

5). As a result, this cost will not create 

a substantial impact on small businesses 

or specific industries. We base this 

determination on permit costs for 

general permits. The number of specific 

permits issued is expected to follow the 

same trend as under the 2016 

regulations, and permits are likely to be 

issued in areas of higher risk to eagles 

to large, complex facilities that are well 

above the industry-standard payroll 

amount. Therefore, we do not expect 

any impacts to small businesses 

associated with these specific permits. 

TABLE 5—RANGE OF RECEIPTS IMPACTED BY THIS RULE: WIND ELECTRIC POWER GENERATION GENERAL PERMITS

[Using 2017 SUSB annual data table] 

Enterprise size 1 Establishments 

Annual 

receipts 

($1,000) 

Average 

receipt 

for size 

(=receipt/ 

establishments) 

($1,000) 

Annual cost 

per permit for 

establishment 

Number of 

establishments 

impacted 

annually 2

Total 

annual % 

of receipts 

impacted by 

this rule 

Annual % 

of receipts for 

impacted 

establishments 

01: Total .......................................... 459 $8,001,761 $17,433 $48,200 74 0.04 0.3 

02: <5 employees ........................... 45 80,905 1,798 48,200 7 0.42 2.7 

03: 5–9 employees .......................... 8 14,478 1,810 48,200 1 0.33 2.7 

04: 10–14 employees ...................... 7 15,873 2,268 48,200 1 0.30 2.1 

05: 15–19 employees ...................... 8 39,960 4,995 48,200 1 0.12 1.0 

06: <20 employees ......................... 68 151,216 2,224 48,200 11 0.35 2.2 

12: 50–74 employees ...................... 9 98,897 10,989 48,200 1 0.05 0.4 

19: <500 employees ....................... 135 1,469,292 10,884 48,200 22 0.07 0.4 

24: 2,000–2,499 employees ............ 12 75,879 6,323 48,200 2 0.13 0.8 

25: 2,500–4,999 employees ............ 11 91,973 8,361 48,200 2 0.10 0.6 

26: 5,000+ employees .................... 240 5,368,670 22,369 48,200 39 0.04 0.2 

1 2017 NAICS thresholds for ‘‘Wind Electric Power Generation’’ (NAICS 221115) define small businesses as having fewer than 250 employees. 2The number of establishments impacted annually is based on the weighting of the number of establishments in that enterprise size compared to the total number 

of establishments. That weight value was multiplied by the total number of estimated annual permits (74) to derive the figures shown. Note that the total sum of <500 

and the enterprise sizes greater than 500 will not total 74 due to missing enterprise size categories from the SUSB 2017 data tables. 

While electric-power-distribution 

companies are currently eligible to 

apply for a specific permit, under this 

rule, these entities are eligible to apply 

for general permits. The permit 

application fee for these general permits 

is $1,000, and the administration fee is 

either $2,500 (for Tier 1 permittees) or 

$10,000 (for Tier 2 permittees). The 

costs for power-pole retrofits called for 

under the proactive retrofit strategy are 

estimated to be $0. Many larger utilities 

already have existing avian protection 

and retrofit strategies in place and 

would not incur new costs or benefits 

associated with the proposed retrofit 

strategy. For entities without an avian 

protection plan and a retrofit strategy in 

place, we expect that the retrofit 

requirement for a general permit will 

not create substantial new costs for 

those entities. Any costs associated with 

retrofitting power poles to be avian-safe 

(estimated from approximately $500– 

$2,500 per pole) would be at least partly 

recouped by increased reliability and a 

reduction in costs associated with eagleVerDate Sep<11>2014 21:12 Feb 09, 2024 Jkt 262001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\12FER2.SGM 12FER2

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electrocution response. The Service 

assumes that the primary interest in 

permits in the first 5 years would be 

from firms with existing specialpurpose-utility permits to salvage dead 

birds. These firms with known 

incidental take of eagles will benefit 

from a permit authorizing that take. No 

existing special-purpose-utility permit 

holder is a small business, and, 

therefore, there will not be a substantial 

impact to small businesses from this 

rule. 

A commercial business applying for a 

standard nest disturbance or nest take 

permit under the 2016 regulations 

would have to pay $500 per nest per 

year, while a noncommercial entity 

would pay $100 per nest per year. 

Under this rule, both commercial and 

noncommercial permittees would pay 

$100 per nest per year for a general 

permit. Businesses in the construction 

industry are defined as small if they 

have annual revenue less than $36.5 

million. Depending on the type of 

permit applications submitted by an 

individual small business, the permit 

fees represent less than one percent of 

revenue. Thus, the creation of a general 

permit will not have a significant 

economic effect on a substantial number 

of small businesses in the construction 

sectors. The changes in general permit 

application fees are shown in tables 6 

and 7. The costs of a specific permit for 

both nest disturbance and nest take 

would be unchanged from the existing 

regulation. 

Table 6 shows the expected difference 

between the 5-year costs for a nestdisturbance permit under the 2016 

regulations and a general permit under 

this rule. 

TABLE 6—NEST DISTURBANCE GENERAL PERMIT COSTS AND SAVINGS

[5-Year costs] 

Cost category Nest disturbance— 

2016 regulations 

Nest disturbance— 

this rule Cost savings 

Permit application costs ....................................................................................... $2,500 $500 $2,000 

Table 7 shows the expected difference 

between the 5-year costs for a nest-take 

permit under the 2016 regulations and 

a general permit under this rule. 

TABLE 7—NEST TAKE GENERAL PERMIT COSTS AND SAVINGS

[5-Year costs] 

Cost category Nest take— 

2016 regulations 

Nest take— 

this rule Cost savings 

Permit Application Costs ..................................................................................... $2,500 $500 $2,000

This rule is expected to create an 

overall savings due to reduced costs for 

general permits compared to specific 

permits under the 2016 regulations. 

This rule is expected to create 

additional savings to both industry and 

the Service in terms of reduced Eagle 

Act enforcement costs. Entities that 

receive and comply with a permit will 

no longer be subject to potential 

enforcement under the Eagle Act, which 

can result in substantial legal costs, nor 

will they incur costs to estimate and 

reduce their legal risks, which may 

include biological surveys and hiring 

staff and attorneys. While this total 

reduced enforcement cost is not 

quantifiable due to limited data, the 

Service expects that it exceeds the total 

of new costs associated with this rule. 

In sum, this rule impacts a substantial 

number of small businesses in NAICS 

sector 221115, ‘‘Wind Electric Power 

Generation’’; however, the economic 

impacts to individual businesses are not 

significant. As described above, the 

number of businesses belonging to other 

industries impacted is not substantial 

and the magnitude of those economic 

impacts is not significant. Based on the 

available information analyzed above, 

we certify that this rule will not have a 

significant economic effect on a 

substantial number of small entities as 

defined under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Therefore, a 

regulatory flexibility analysis is not 

required, and a small entity compliance 

guide is not required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act, we have 

determined the following: 

a. This rule will not ‘‘significantly or 

uniquely’’ affect small governments in a 

negative way. There would be no permit 

administration costs incurred by small 

governments because they would not be 

administering the issuance of Federal 

permits. Small governments could 

potentially apply for permits for nest 

take or nest disturbance, but fees for 

those permits are small and would not 

significantly affect small governments in 

a negative way. A small government 

agency plan is not required. 

b. This rule will 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 (E.O. 12630) 

In accordance with E.O. 12630, this 

rule will not have significant takings 

implications. This rule does not contain 

any provisions that could constitute 

taking of private property. Therefore, a 

takings implication assessment is not 

required. 

Federalism (E.O. 13132) 

This rule will not have sufficient 

federalism effects to warrant preparation 

of a federalism summary impact 

statement under E.O. 13132. It will not 

interfere with the States’ abilities to 

manage themselves or their funds. No 

significant economic impacts are 

expected to result from the regulations 

changes. 

Civil Justice Reform (E.O. 12988) 

In accordance with E.O. 12988, the 

Office of the Solicitor has determined 

that this rule does not unduly burden 

the judicial system and meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.) 

This rule contains existing and new 

information collections. All information 


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Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Rules and Regulations 9949 

collections require approval by the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act of 1995 (PRA, 44 U.S.C. 3501 et 

seq.). We 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. The OMB has reviewed and 

approved the information collection 

requirements associated with eagle 

permits and fees and assigned the OMB 

Control Number 1018–0167. 

In accordance with the PRA and its 

implementing regulations at 5 CFR 

1320.8(d)(1), we provide the general 

public and other Federal agencies with 

an opportunity to comment on our 

proposal to revise OMB Control Number 

1018–0167. This input will help us 

assess the impact of our information 

collection requirements and minimize 

the public’s reporting burden. It will 

also help the public understand our 

information collection requirements and 

provide the requested data in the 

desired format. 

As part of our continuing effort to 

reduce paperwork and respondent 

burdens, and in accordance with 5 CFR 

1320.8(d)(1), we invite the public and 

other Federal agencies to comment on 

any aspect of this proposed information 

collection, including: 

(1) Whether or not the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether or not the 

information will have practical utility; 

(2) The accuracy of our estimate of the 

burden for this collection of 

information, including the validity of 

the methodology and assumptions used; 

(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 those 

who are to respond, including through 

the use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

response. 

Comments that you submit in 

response to this rulemaking are a matter 

of public record. Before including your 

address, phone number, email address, 

or other personal identifying 

information in your comment, you 

should be aware that your entire 

comment—including your personal 

identifying information—may be made 

publicly available at any time. While 

you can ask us in your comment to 

withhold your personal identifying 

information from public review, we 

cannot guarantee that we will be able to 

do so. 

The Bald and Golden Eagle Protection 

Act (Eagle Act; 16 U.S.C. 668–668d) 

prohibits take of bald eagles and golden 

eagles except pursuant to Federal 

regulations. The Eagle Act regulations at 

title 50, part 22 of the CFR define the 

‘‘take’’ of an eagle to include the 

following broad range of actions: To 

‘‘pursue, shoot, shoot at, poison, wound, 

kill, capture, trap, collect, destroy, 

molest, or disturb.’’ The Eagle Act 

allows the Secretary of the Interior to 

authorize certain otherwise prohibited 

activities through regulations. Service 

permit applications associated with 

eagles are each tailored to a specific 

activity based on the requirements for 

specific types of permits. We collect 

standard identifier information for all 

permits. The information that we collect 

on applications and reports is the 

minimum necessary for us to determine 

if the applicant meets/continues to meet 

issuance requirements for the particular 

activity. Standardizing general 

information common to the application 

forms makes filing of applications easier 

for the public as well as expedites our 

review of applications. In accordance 

with Federal regulations at 50 CFR 

13.12, we collect standard identifier 

information for all permits, including 

the following: 

• Applicant’s full name and address 

(street address, city, county, State, and 

zip code; and mailing address if 

different from street address); home and 

work telephone numbers; and a fax 

number and email address (if available), 

and 

—If the applicant resides or is located 

outside the United States, an address 

in the United States, and, if 

conducting commercial activities, the 

name and address of his or her agent 

that is located in the United States; 

and 

—If the applicant is an individual, the 

date of birth, occupation, and any 

business, agency, organizational, or 

institutional affiliation associated 

with the wildlife or plants to be 

covered by the license or permit; or 

—If the applicant is a business, 

corporation, public agency, or 

institution, the tax identification 

number; description of the business 

type, corporation, agency, or 

institution; and the name and title of 

the person responsible for the permit 

(e.g., president, principal officer, or 

director); 

• Location where the requested 

permitted activity is to occur; 

• Reference to the part(s) and 

section(s) of subchapter B as listed in 50 

CFR 13.11(b) under which the 

application is made for a permit or 

permits, together with any additional 

justification, including supporting 

documentation as required by the 

referenced part(s) and section(s); 

• If the requested permitted activity 

involves the import or reexport of 

wildlife or plants from or to any foreign 

country, and the country of origin, or 

the country of export or re-export 

restricts the taking, possession, 

transportation, exportation, or sale of 

wildlife or plants, documentation as 

indicated in 50 CFR 14.52(c); 

• Certification containing the 

following language: 

—I hereby certify that I have read and 

am familiar with the regulations 

contained in title 50, part 13, of the 

Code of Federal Regulations and the 

other applicable parts in subchapter B 

of chapter I of title 50, Code of Federal 

Regulations, and I further certify that 

the information submitted in this 

application for a permit is complete 

and accurate to the best of my 

knowledge and belief. I understand 

that any false statement herein may 

subject me to suspension or 

revocation of this permit and to the 

criminal penalties of 18 U.S.C. 1001. 

• Desired effective date of permit 

(except where issuance date is fixed by 

the part under which the permit is 

issued); 

• Date; 

• Signature of the applicant; and 

• Other information that the Director 

determines relevant to the processing of 

the application, including, but not 

limited to, information on the 

environmental effects of the activity 

consistent with 40 CFR 1506.5 and 

Departmental procedures at 516 DM 8. 

In addition to the general permitting 

requirements outlined in Federal 

regulations at 50 CFR 13.12, 

applications for any permit under 50 

CFR part 22 must contain: 

• Species of eagle and number of 

birds, nests, or eggs proposed to be 

taken, possessed, or transported; 

• Specific locality in which taking is 

proposed, if any; 

• Method of proposed take, if any; 

• If not taken, the source of eagles 

and other circumstances surrounding 

the proposed acquisition or 

transportation; 

• Name and address of the public 

museum, public scientific society, or 

public zoological park for which they 

are intended; and 

• Complete explanation and 

justification of the request, nature of 

project or study, number of specimens 

now at the institution, reason these are 


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9950 Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Rules and Regulations 

inadequate, and other appropriate 

explanations. 

The proposed revisions to existing 

and new reporting and/or recordkeeping 

requirements identified below require 

approval by OMB: 

(1) Administrative Updates—On 

January 7, 2022, the Service published 

a final rule (87 FR 876) making 

administrative updates to 50 CFR parts 

21 and 22. We captured the associated 

administrative updates to the CFR 

references for part 22 in the updated 

versions of the forms in this collection 

being submitted to OMB for approval 

with this renewal/revision request. 

(2) Change in Administration Fees— 

State, Local, Tribal, or Federal Agencies 

(§ 13.11(d)(3)(i))—This rule changes the 

Service’s practice of not charging 

administration fees for eagle permits 

under 50 CFR part 22 to any State, local, 

Tribal, or Federal government agency, or 

to any individual or institution acting 

on behalf of the agency. Except as 

otherwise authorized or waived, if the 

agency fails to submit evidence of 

agency status with the application, we 

will require the submission of all 

processing fees prior to the acceptance 

of the application for processing. 

(3) Revision to Form 3–200–71—We 

split approved Form 3–200–71, ‘‘Eagle 

Take Associated with but not the 

Purpose of an Activity (Incidental 

Take)’’ into two separate forms * as 

follows: 

a. Form 3–200–71, ‘‘Eagle Incidental 

Take’’—General and Specific, and 

b. Form 3–200–91, ‘‘Eagle Disturbance 

Take’’—General and Specific. 

* With this submission, we are no longer 

proposing Form 3–200–92, Eagle Incidental 

Take (Power Lines)—General and Specific.’’ 

We further describe the changes 

below: 

a. (Revised Title) Form 3–200–71, 

‘‘Eagle Incidental Take’’—General and 

Specific—The revision to Form 3–200– 

71 authorizes the incidental take of 

eagles where the take results from but is 

not the purpose of an activity. General 

permits are valid for 5 years from the 

date of registration. Specific permits 

may be valid for up to 30 years. In 

addition to the standardized 

information required by 50 CFR 13.12, 

permit application requirements include 

submission of the following 

information: 

i. Requested permit type; 

ii. Infrastructure type; 

iii. Description, duration, and location 

of the activity that is likely to cause 

eagle take; 

iv. Justification of why there is no 

practicable alternative to the activity 

that would protect the interest to be 

served; 

v. Description of eagle use and 

activity in the area, location of eagle 

nests or roosts, and distance of nests 

and other important eagle use areas 

from the project; 

vi. Identification of subpermittees, if 

applicable; 

vii. Records retention requirements; 

viii. Certification of activity’s 

compliance with all Federal, Tribal, 

State, and local laws and regulations 

applicable to eagles; and 

ix. Permit disqualification factors, 

including information for any 

convictions, guilty pleas or nolo 

contendere, forfeited collateral, or 

pending charges for violations of laws 

cited in the permit application. 

General permit applications must also 

include the compensatory mitigation 

requirement, requested permit tenure 

and effective date, and certification of 

general permit requirements. Additional 

information collected from specific 

permit applicants includes: 

i. Requested duration of the permit; 

ii. Requested eagle species for 

authorization; 

iii. Additional project-specific 

information, including an eagle impacts 

assessment and pre- or postconstruction monitoring methods; 

iv. Description of implemented and 

proposed avoidance and minimization 

measures; 

v. Description of implemented and 

proposed compensatory mitigation; 

vi. Existing project general permit 

eligibility, if applicable; and 

vii. Anticipated permit application fee 

tier. 

Permit applications associated with 

eagle incidental take permits may 

require the following: 

• Post-Construction Monitoring— 

Post-construction monitoring fatality 

estimation must be based on 2 or more 

years of eagle fatality monitoring that 

meet the Service’s minimum fatality 

monitoring requirements for specific 

eagle permits. 

• Adaptive Management Plan—Upon 

the discovery of the third and fourth 

bald eagle or golden eagle injuries or 

mortalities at a project, the permittee 

must provide the Service with their 

reporting data required by the permit 

conditions, adaptive management plan, 

and a description and justification of 

which adaptive management 

approaches will be implemented. 

• Annual Report—Permittees must 

submit an annual report using Form 3– 

202–15. The annual report is due within 

30 days of the expiration of the permit 

or prior to requesting renewal of the 

permit, whichever is first. 

• Compensatory Mitigation—For 

wind energy specific permits, the 

permittee must implement the 

compensatory mitigation requirements 

on the face of their permit. For wind 

energy general permits, the permittee 

must obtain eagle credits from a Serviceapproved conservation bank or in-lieu 

fee program based on the hazardous 

volume of the project. 

In addition, permit applications 

associated with incidental take permits 

by power lines may require the 

following: 

• Collision Response Strategy—A 

plan that describes the process the 

permittee will follow to identify 

whether a collision-caused injury or 

morality has occurred, to evaluate 

factors that contributed to the collision, 

and to implement risk-reduction 

measures commensurate with the 

collision risk. 

• Proactive Retrofit Strategy—A plan 

to convert existing infrastructure to 

avian-safe infrastructure within a set 

timeline. The strategy must identify a 

baseline of poles to be proactively 

retrofit. The existing-infrastructure 

baseline must include all poles that are 

not avian-safe for eagles located in areas 

identified by the applicant to be high 

risk to eagles and may also include 

other poles in the service area. 

• Reactive Retrofit Strategy—A plan 

to respond to incidents where eagles are 

electrocuted or killed. The reactive 

retrofit strategy must include 

information on how eagle electrocutions 

are detected and identified. Determining 

which poles to retrofit must be based on 

the risk to eagles and not on other 

factors (e.g., convenience or cost). The 

pole that caused the electrocution must 

be retrofitted unless the pole is already 

avian-safe. A total of 13 poles or a halfmile segment must be retrofitted, 

whichever is less, prioritizing the 

highest risk poles closest to the 

electrocution event. 

• Shooting Response Strategy—A 

plan that describes the process the 

permittee will follow when eagles are 

found killed or injured near power-line 

infrastructure to identify if shooting is 

suspected, to communicate with law 

enforcement, and to identify and 

implement appropriate shooting 

reduction measures. 

The Service will use the information 

collected via the form to track whether 

the take level is exceeded or is likely to 

be exceeded, to determine that the take 

is necessary, and that the take will be 

compatible with the preservation of 

eagles. 

b. (NEW) Form 3–200–91, ‘‘Eagle 

Disturbance Take’’—General and 

Specific—Applicants may apply for an 

eagle disturbance take permit if their 

activity may result in incidental 


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Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Rules and Regulations 9951 

disturbance of bald eagles or golden 

eagles. General permits issued under 

this section are available only for certain 

activities that cause disturbance of bald 

eagles and are valid for a maximum of 

1 year. General permits are not available 

for disturbance of nests located in 

Indian country (18 U.S.C. 1151), unless 

the Tribe is the applicant. Specific 

permits are intended for disturbance of 

a golden eagle nest, disturbance of a 

bald eagle nest by an activity not 

specified in paragraph (b) of § 22.280, or 

disturbance of eagles caused by physical 

or functional elimination of all foraging 

area within a territory. The tenure of 

specific permits is set forth on the face 

of the permit and may not exceed 5 

years. In addition to the standardized 

information required by 50 CFR 13.12, 

permit application requirements include 

submission of the following 

information: 

i. Requested permit type; 

ii. Description, duration, and location 

of the activity that is likely to cause 

disturbance to eagles; 

iii. Justification of why there is no 

practicable alternative to the activity 

that would protect the interest to be 

served; 

iv. Description of eagle use and 

activity in the area, location of eagle 

nests or roosts, and distance of nests 

and other important eagle use areas 

from the project; 

v. Identification of subpermittees, if 

applicable; 

vi. Records retention requirements; 

vii. Certification of activity’s 

compliance with all Federal, Tribal, 

State, and local laws and regulations 

applicable to eagles; and 

viii. Permit disqualification factors, 

including information for any 

convictions, guilty pleas or nolo 

contendere, forfeited collateral, or 

pending charges for violations of laws 

cited in the permit application. 

General permit applications must also 

include the requested permit tenure and 

effective date and certification of 

general permit requirements. Additional 

information collected from specific 

permit applicants includes: 

i. Organization status (e.g., 

commercial or non-commercial); 

ii. Requested duration of the permit; 

iii. Assessment of impacts to eagles; 

iv. Description of implemented and 

proposed avoidance and minimization 

measures; 

v. Description of implemented and 

proposed compensatory mitigation for 

golden eagle nest disturbance, if 

applicable; and 

vi. Description of efforts to monitor 

for impacts to eagles. 

Permit applications associated with 

eagle disturbance take may require the 

following: 

• Monitoring—The permittee must 

monitor the nest to determine whether 

nestlings have fledged from the nest. We 

updated the burden for monitoring 

requirements associated with 

disturbance take in the separate 

monitoring information collection 

requirement. 

• Annual Report—Permittees must 

submit an annual report using Form 3– 

202–15. The annual report is due within 

30 days of the expiration of the permit 

or prior to requesting renewal of the 

permit, whichever is first. 

The Service will use the information 

collected via the form to track whether 

the take level is exceeded or is likely to 

be exceeded, to determine that the take 

is necessary, and that the take will be 

compatible with the preservation of 

eagles. 

(4) Revision to Form 3–200–72—We 

are revising Form 3–200–72, ‘‘Eagle 

Nest Take’’ as described below: 

Form 3–200–72 is used to apply for 

authorized take of bald eagle nests or 

golden eagle nests, including relocation, 

removal, and otherwise temporarily or 

permanently preventing eagles from 

using the nest structure for breeding 

under definitions in 50 CFR 22.300(b). 

General permits are available for bald 

eagle nest take for emergency, nest take 

for health and safety, or nest take for a 

human-engineered structure, or, if 

located in Alaska, other purposes. 

General permits may authorize bald 

eagle nest removal from the nesting 

substrate at the location requested and 

the location of any subsequent nesting 

attempts by the eagle pair within onehalf mile of the location requested for 

the duration of the permit. Take of an 

additional eagle nest(s) more than onehalf mile away requires additional 

permit(s). General permits are valid 

until the start of the next breeding 

season, not to exceed 1 year. General 

permits are not available for take of 

nests located in Indian country (18 

U.S.C. 1151), unless the Tribe is the 

applicant. Specific permits are required 

for take of a golden eagle nest for any 

purpose, take for species protection, 

and, except for Alaska, nest take for 

other purposes. The tenure of specific 

permits is set forth on the face of the 

permit and may not exceed 5 years. 

In addition to the standardized 

information required by 50 CFR 13.12, 

permit application requirements include 

submission of the following 

information: 

a. Requested permit type; 

b. Description and location of the 

activity that will result in eagle nest 

take; 

c. Selected purpose of nest take; 

d. Justification of why there is no 

practicable alternative to the activity 

that would protect the interest to be 

served; 

e. Description of the nest(s), including 

species, location, and historic and 

current nest status; 

f. Description of nest removal, 

destruction, or relocation, including 

information related to re-nesting and 

donation of eagle nests and parts. 

g. Identification of subpermittees, if 

applicable; 

h. Records retention requirements; 

i. Certification of activity’s 

compliance with all Federal, Tribal, 

State, and local laws and regulations 

applicable to eagles; and 

j. Permit disqualification factors, 

including information for any 

convictions, guilty pleas or nolo 

contendere, forfeited collateral, or 

pending charges for violations of laws 

cited in the permit application. 

General permit applications must also 

include the requested permit tenure and 

effective date and certification of 

general permit requirements. Additional 

information collected from specific 

permit applicants includes: 

i. Organization status (e.g., 

commercial or non-commercial); 

ii. Requested duration of the permit; 

iii. Assessment of impacts to eagles; 

iv. Description of implemented and 

proposed avoidance and minimization 

measures; 

v. Description of implemented and 

proposed compensatory mitigation for 

golden eagle nest take, if applicable; 

vi. Description of efforts to monitor 

for impacts to eagles; and 

vii. Description of method for 

removing nestlings or eggs and 

proposed disposition, if applicable. 

Permit applications associated with 

eagle nest take may require the 

following: 

• Monitoring—Permittees must 

remove chicks or eggs from an in-use 

nest for immediate transport to a foster 

nest, rehabilitation facility, or as 

otherwise directed by the Service. If 

nestlings or eggs are relocated with a 

nest or to a foster nest, the permittee 

must monitor the nest to ensure adults 

are tending to nestlings or eggs. We 

updated the burden for monitoring 

requirements associated with eagle nest 

take in the separate monitoring 

information collection requirement. 

• Annual Report—Permittees must 

submit an annual report using Form 3– 

202–16. The annual report is due within 

30 days of the expiration of the permit 


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9952 Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Rules and Regulations 

or prior to requesting renewal of the 

permit, whichever is first. 

• Species Protection—If a Federal, 

State, or Tribal agency applies for a nest 

take permit for species protection, they 

must provide documentation that 

describes relevant management efforts 

to protect the species of concern; 

identifies and describes how the nesting 

eagles are a limiting factor to recovery 

of the species using the best available 

scientific information and data; and 

explains how take of eagle nests is likely 

to have a positive effect on recovery for 

the species of concern. 

The Service will use the information 

collected via the form to track whether 

the take level is exceeded or is likely to 

be exceeded, to determine whether the 

take is necessary, and whether the take 

will be compatible with the preservation 

of eagles. 

(5) Permit Reviews—The Service 

removed the regulatory requirement for 

specific permits to mandate an 

administrative check-in with the Service 

at least every 5 years during the permit 

tenure. The Service introduced these 

mandatory 5-year permit reviews as part 

of the 2016 Eagle Rule to ensure that the 

Service had an opportunity to ask for 

and review all existing data related to a 

long-term activity’s impacts on eagles. 

The purpose of 5-year review is to 

update take estimates and related 

compensatory mitigation for the 

subsequent 5-year period. It also 

provides the Service with an 

opportunity to amend the permit to 

reduce or eliminate conservation 

measures or other permit conditions 

that prove to be ineffective or 

unnecessary. The purpose of these 

reviews does not change with this 

rulemaking. However, the 5-year 

requirement has introduced unintended 

uncertainty which, according to public 

comment, has reduced participation in 

eagle take permitting under the 2016 

regulations. It has also resulted in 

timing issues, where post-construction 

monitoring or other data is available offcycle from the 5-year timing (e.g., year 

3 or 4) but cannot be used until the 

scheduled check-in. Instead, check-ins 

may now be initiated by the permittee 

or the Service in response to events that 

warrant review, for example, updating 

fatality estimates and associated 

compensatory mitigation requirements 

or revising permit conditions to reflect 

the best available science. 

(6) Reporting Requirements— 

Submission of reports is generally on an 

annual basis, although some are 

dependent on specific transactions. 

Additional monitoring and report 

requirements exist for permits issued 

under 50 CFR part 22. Permittees must 

submit an annual report for every year 

the permit is valid and for up to 3 years 

after the activity is completed. 

a. (New Reporting Requirement) 

Report Take of Eagles (3rd and 4th 

Eagles) (50 CFR 22.250(d)(2) and 

(d)(3))—Permittees must notify the 

Service in writing within 2 weeks of 

discovering the take of a third or fourth 

bald eagle or a third or fourth golden 

eagle. The notification must include the 

reporting data required in their permit 

conditions, their adaptive management 

plan, and a description and justification 

of which adaptive management 

approaches they will be implementing. 

Upon notification of the take of the 

fourth bald eagle or fourth golden eagle, 

the project will remain authorized to 

incidentally take eagles through the 

term of the existing general permit but 

will not be eligible for future general 

permits. 

(7) (NEW) Audits—The Service will 

conduct audits of general permits to 

ensure permittees are appropriately 

interpreting and applying eligibility 

criteria and complying with permit 

conditions. Audits may include 

reviewing application materials for 

completeness and general permit 

eligibility. Any required records, plans, 

or other documents will be requested of 

the permittee and reviewed. If there is 

a compliance concern, the applicant 

will be given the opportunity to submit 

additional information to address the 

concern. If, during an audit, the Service 

determines that the permittee is not 

eligible for a general permit or is out of 

compliance with general permit 

conditions, we will communicate to the 

permittee options for coming into 

compliance. 

(8) (NEW—Existing In Use Without 

OMB Approval) Labeling Requirement— 

Regulations at 50 CFR 22.4 require all 

shipments containing bald or golden 

eagles, alive or dead, their parts, nests, 

or eggs to be labeled. The shipments 

must be labeled with the name and 

address of the person the shipment is 

going to, the name and address of the 

person the shipment is coming from, an 

accurate list of contents by species, and 

the name of each species. 

(9) (NEW—Existing In Use Without 

OMB Approval) Requests for 

Reconsideration Associated with Eagle 

Permits (Suspension and Revocation)— 

Persons notified of the Service’s 

intention to suspend or revoke their 

permit may request reconsideration by 

complying with the following: 

• Within 45 calendar days of the date 

of notification, submit their request for 

reconsideration to the issuing officer in 

writing, signed by the person requesting 

reconsideration or by the legal 

representative of that person. 

• The request for reconsideration 

must state the decision for which 

reconsideration is being requested and 

shall state the reason(s) for the 

reconsideration, including presenting 

any new information or facts pertinent 

to the issue(s) raised by the request for 

reconsideration. 

• The request for reconsideration 

must contain a certification in 

substantially the same form as that 

provided by 50 CFR 13.12(a)(5). If a 

request for reconsideration does not 

contain that certification, but is 

otherwise timely and appropriate, the 

Service will hold the request and give 

the person submitting the request 

written notice of the need to submit the 

certification within 15 calendar days. 

Failure to submit certification will 

result in the Service rejecting the 

request as insufficient in form and 

content. 

(10) (NEW—Existing In Use Without 

OMB Approval) Compensatory 

Mitigation (§ 22.220)—Any permit 

authorizing take that would exceed the 

applicable EMU take limit will require 

compensatory mitigation, except in 

circumstances where the action is 

considered in the best interest of an 

eagle. Compensatory mitigation for this 

purpose must ensure the preservation of 

the affected eagle species by mitigating 

an amount equal to or greater than the 

authorized or expected take. 

Compensatory mitigation must either 

reduce another ongoing form of 

mortality or increase the eagle 

population of the affected species. 

Compensatory mitigation for golden 

eagles must be performed at a 1.2:1 

(mitigation: take) ratio. A permit may 

require compensatory mitigation when 

the Service determines, according to the 

best available information, that the take 

authorized by the permitted activity is 

not consistent with maintaining the 

persistence of the local area population 

of an eagle species. 

The Service must approve types of 

compensatory mitigation and may 

include conservation banks, in-lieu fee 

programs, or permittee-responsible 

mitigation as mitigation providers. 

General permittees meet this 

requirement by obtaining required 

credits from a Service-approved, thirdparty mitigation provider. Specific 

permittees can meet this requirement by 

obtaining required credits from a 

Service-approved, third-party mitigation 

provider or meeting the requirements to 

be a permittee-responsible mitigation 

provider as described in 50 CFR 

22.220(c)(2). Third-party mitigation 

providers, such as in-lieu fee programs 


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and conservation banks, obtain Service 

approval by meeting the requirements to 

be a mitigation provider as described in 

50 CFR 22.220(c)(2). 

To obtain approval as a mitigation 

provider, potential providers must 

submit a mitigation plan to the Service 

that demonstrates how the standards in 

50 CFR 22.220(b) will be met. At a 

minimum, this must include a 

description of the mitigation, the benefit 

to eagles, the locations where projects 

will be implemented, the EMU and local 

area population affected, the number of 

credits provided, and an explanation of 

the rationale for the number of eagle 

credits provided. The Service must 

approve the mitigation plan prior to 

implementation. 

(11) (NEW—Existing In Use Without 

OMB Approval) Single Application for 

Multiple Activities (50 CFR 

13.11(d)(1))—If regulations require more 

than one type of permit for an activity 

and permits are issued by the same 

office, the issuing office may issue one 

consolidated permit. Applicants may 

submit a single application in these 

cases, provided the single application 

contains all the information required by 

the separate applications for each 

permitted activity. In instances where 

the Service consolidates more than one 

permitted activity into one permit, the 

issuing office will charge the highest 

single fee for the activity permitted. 

Administration fees are not waived for 

single applications covering multiple 

activities. 

We have renewed the existing 

reporting and recordkeeping 

requirements identified below: 

(1) Form 3–200–14, ‘‘Eagle 

Exhibition’’—This form is used to apply 

for a permit to possess and use eagles 

and eagle specimens for educational 

purposes. In addition to the 

standardized information required by 50 

CFR 13.12, permit application 

requirements include submission of the 

following information: type of eagle(s) 

or eagle specimens; status of other 

required authorizations (State, Tribal, 

local); description of the programs that 

will be offered and how the eagles will 

be displayed; experience of handlers; 

and information about enclosures, diet, 

and enrichment for the eagles. The 

Service uses the information collected 

via the form to determine whether the 

eagles are legally acquired and will be 

used for bona fide conservation 

education, and in the case of live eagles, 

will be housed and handled under safe 

and healthy conditions. 

(2) Form 3–200–15a, ‘‘Eagle Parts for 

Native American Religious Purposes’’— 

This application form is used by 

enrolled members of federally 

recognized Tribes to obtain 

authorization to acquire and possess 

eagle feathers and parts from the 

Service’s National Eagle Repository 

(NER). The permittee also uses the form 

to make additional requests for eagle 

parts and feathers from the NER. The 

form collects the following information: 

name of the Tribe; Tribal enrollment 

number of the individual applicant; a 

signed Certification of Enrollment; 

inmate-specific information in cases 

where applicants are incarcerated 

(inmate number, institution, contact 

information for the institute’s chaplain); 

and the specific eagle parts and/or 

feathers desired by the applicant. The 

Service uses the information collected 

via the form to verify that the applicant 

is an enrolled member of a federally 

recognized Tribe, and what parts and/or 

feathers the applicant is requesting. 

(3) Form 3–200–16, ‘‘Take of 

Depredating Eagles & Eagles that Pose a 

Risk to Human or Eagle Health or 

Safety—Annual Report’’—Applicants 

use this form to obtain authorization to 

take (trap, collect, haze) eagles that 

depredate on wildlife or livestock, as 

well as eagles situated where they pose 

a threat to human or their own safety. 

In addition to the standardized 

information required by 50 CFR 13.12, 

permit application requirements include 

submission of the following 

information: status of other required 

authorizations (State, Tribal, local); the 

species and estimated number of eagles 

causing the problem; what the damage 

or risk consists of; location; method of 

take; alternatives taken that were not 

effective; and a description of the 

proposed long-term remedy. The 

Service uses the information collected 

via the form to determine whether the 

take is necessary to protect the relevant 

interests; other alternatives have been 

considered; and the method of take is 

humane and compatible with the 

preservation of eagles. 

(4) Form 3–200–18, ‘‘Take of Golden 

Eagle Nests During Resource 

Development or Recovery’’—This 

application is used by commercial 

entities engaged in resource 

development or recovery operations, 

such as mining or drilling, to obtain 

authorization to remove or destroy 

golden eagle nests. In addition to the 

standardized information required by 50 

CFR 13.12, permit application 

requirements include submission of the 

following information: location of the 

property; the status of other required 

authorizations; the type of development 

or recovery operation; the number of 

nests to be taken; the activity that 

involves the take of the nest; the 

disposition of the nests once removed 

(or destroyed); the duration for which 

the authorization is requested; and a 

description of the mitigation measures 

that will be implemented. The Service 

uses the information collected via the 

form to determine whether the take is 

necessary and will be compatible with 

the preservation of eagles. 

(5) Form 3–200–77, ‘‘Native American 

Eagle Take for Religious Purposes’’— 

Federally recognized Native American 

Tribes use this form to apply for 

authorization to take eagles from the 

wild for Tribal religious purposes. In 

addition to the standardized 

information required by 50 CFR 13.12, 

permit application requirements include 

submission of the following 

information: status of other required 

authorizations; location of proposed 

take; statement of consent by the land 

owner or land manager if not on Tribal 

land; species, number, and age class of 

eagles; whether the eagles will be 

collected alive and held in captivity; 

intended disposition of parts and 

feathers; and the reason why eagles 

obtained by other means do not meet 

the Tribe’s religious needs. The Service 

uses the information obtained via the 

form to determine whether the take is 

necessary to meet the Tribe’s religious 

needs, they received consent of the 

landowner, the take is compatible with 

the preservation of eagles, and any 

eagles kept alive will be held under 

humane conditions. 

(6) Form 3–200–78, ‘‘Native American 

Tribal Eagle Aviary’’—Federally 

recognized Native American Tribes use 

this form to apply for authorization to 

keep live eagles for Tribal religious 

purposes. In addition to the 

standardized information required by 50 

CFR 13.12, permit application 

requirements include submission of the 

following information: descriptions, 

photographs and/or diagrams of the 

enclosures where the eagles will be 

housed, and number of eagles that will 

be kept in each; status of other required 

authorizations; names and eaglehandling experience of caretakers; 

veterinarian who will provide medical 

care; and description of the diet and 

enrichment the Tribe will provide the 

eagles. The Service uses the information 

collected via the form to ensure the 

Tribe has the appropriate facilities and 

experience to keep live eagles safely and 

humanely. 

(7) Form 3–200–82, ‘‘Bald Eagle or 

Golden Eagle Transport into the United 

States for Scientific or Exhibition 

Purposes’’—This application is used by 

researchers and museums to obtain 

authorization to temporarily bring eagle 

specimens into, or take those specimens 

out of, the United States. In addition to 


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the standardized information required 

by 50 CFR 13.12, permit application 

requirements include submission of the 

following information: documentation 

that the specimen was legally obtained; 

documentation that the applicant meets 

the definition of a ‘‘public’’ institution 

as required under statute; status of other 

required authorizations (State, Tribal, 

local); description of the specimen(s); 

country of origin; name of and contact 

information for the foreign institution; 

scientific or exhibition purposes for the 

transport of specimens; locations where 

the item will be exhibited (if 

applicable); dates and ports of 

departure/arrival; and names of persons 

acting as agents for the applicant. The 

Service uses the information collected 

via the form to ensure the specimens 

were legally acquired and will be 

transported through U.S. ports that can 

legally authorize the transport, the 

transport will be temporary, as required 

by statute, and the specimens will be 

used for purposes authorized by statute. 

(8) Form 3–1552 ‘‘Native American 

Tribal Eagle Retention’’—A Federal 

Eagle Remains Tribal Use permit 

authorizes a federally recognized Tribe 

to acquire, possess, and distribute to 

Tribal members whole eagle remains 

found by a Tribal member or employee 

on the Tribe’s Tribal land for Indian 

religious use. The applicant must be a 

federally recognized Tribal entity under 

the Federally Recognized Tribal List Act 

of 1994, 25 U.S.C. 479a–1, 108 Stat. 

4791 (1994). In addition to the 

standardized information required by 50 

CFR 13.12, the form also collects the 

following information: name of the 

Tribe; name and contact information for 

the Tribal leader and primary contact 

person; whether the Tribe has already 

discovered an eagle to hold under the 

permit; and if different than what’s 

listed for the primary contact, the 

address of the physical location where 

records will be kept. The Service uses 

the information collected via the form to 

identify which Tribe is applying for the 

permit and to inform the Service as to 

whether the Tribe is applying before or 

subsequent to finding the first eagle they 

want to retain, allowing the Service to 

choose the appropriate course of action. 

(9) Form 3–1591, ‘‘Tribal Eagle 

Retention—Acquisition Form’’—This 

form provides the Service information 

needed to track the chain of custody of 

eagle remains and ensure the Tribe takes 

possession of them as authorized under 

the permit. The first part of the form 

(completed by a Service Office of Law 

Enforcement (OLE) Officer) collects: 

species; sex; age class of eagle; date and 

location discovered; date the 

information was reported to track eagle 

mortalities; date the remains were 

transferred to the Tribe; name and 

contact information for the Tribe; and 

OLE officer name and contact 

information. The second part of the 

form (competed by the Tribe) collects: 

permit number; date the Tribe took 

possession of the eagle; and Principal 

Tribal Officer’s name, title, and contact 

information. 

(10) Form 3–2480, ‘‘Eagle Recovery 

Tag’’—The form is used to track dead 

eagles as they move through the process 

of laboratory examination to determine 

cause of death and are sent to the NER 

for distribution to Native Americans for 

use in religious ceremonies. In addition 

to the standardized information 

required by 50 CFR 13.12, the form also 

collects the following information: U.S. 

Geological Survey band data; unique ID 

number assigned; mortality date; 

species, age, and sex of the eagle; date 

recovered; name of person(s) who found 

and recovered the eagle; and names and 

contact information of persons who 

received the eagle throughout the chain 

of custody. The Service uses the 

information collected to maintain chain 

of custody for law enforcement and 

scientific purposes. 

(11) Form 3–202–11, ‘‘Take of 

Depredating Eagles & Eagles that Pose a 

Risk to Human or Eagle Health or 

Safety—Annual Report’’—Permittees 

use this form to report the outcome of 

their action involving take of 

depredating eagles or eagles that pose a 

risk to human or eagle health or safety. 

The form collects the following 

information: species, location, date of 

take, number of eagles, method of take, 

and final disposition. The Service uses 

the information reported via the form to 

ascertain whether the planned take was 

implemented, track how much 

authorized take occurred in the eagle 

management unit and local population 

area, and verify the disposition of any 

eagles taken under the permit. 

(12) Form 3–202–13, ‘‘Eagle 

Exhibition—Annual Report’’— 

Permittees use this form to report 

activities conducted under an Eagle 

Exhibition Permit for both Live and 

Dead Eagles. The form collects the 

following information: list of eagles and 

eagle specimens held under the permit 

during the reporting year, and, for each, 

the date acquired or disposed of; from 

whom acquired or to whom transferred; 

total number of programs each eagle was 

used in, or if statically displayed (e.g., 

in a museum setting), the number of 

days the facility was open to the public. 

The Service uses the information 

reported through this form to verify that 

eagles held under the permit are used 

for conservation education. 

(13) Form 3–202–14, ‘‘Native 

American Tribal Eagle Aviary—Annual 

Report’’—Permittees use this form to 

report activities conducted under a 

Native American Eagle Aviary Permit. 

The form collects the following 

information: a list of eagles held under 

the permit during the reporting year, 

and, for each, the date acquired or 

disposed of; from whom acquired or to 

whom transferred; or other disposition. 

The Service uses the information 

collected via the form to track the live 

eagles held by federally recognized 

Tribes for spiritual and cultural 

practices. 

(14) Monitoring Requirements—Most 

permits that authorize take of eagles or 

eagle nests require monitoring. We do 

not require monitoring for intentional 

take, including when Native American 

Tribes take an eagle as part of a religious 

ceremony or when falconers trap golden 

eagles that are depredating on livestock. 

A fundamental purpose of monitoring 

under eagle take permits is to track 

levels of take for population 

management. For disturbance permits, 

monitoring also provides information 

about whether the permitted activity 

actually disturbed eagles, allowing the 

Service to better understand when these 

types of permits may not be needed. 

In addition to tracking take at 

population management scales, the 

Service uses data from monitoring lethal 

take permits to adjust authorized take 

levels, compensatory mitigation 

requirements, and avoidance and 

minimization measures as spelled out 

under the terms of the permit. With 

regard to wind industry permits, these 

data also enable the Service to improve 

future fatality estimates through 

enhanced understanding of exposure 

and collision. 

(15) Required Notifications—Most 

permits that authorize take or 

possession of eagles require a timely 

notification to the Service by email or 

phone when an eagle possessed under a 

possession permit or taken under a 

permit to take eagles dies or is found 

dead. These fatalities are later recorded 

in reports submitted to the Service as 

described above. The timely 

notifications allow the Service to better 

track take and possession levels, and to 

ensure eagle remains are sent to either 

a forensics lab or the NER. Incidental 

take permittees are also required to 

notify the Service via email or phone if 

a threatened or endangered species is 

found in the vicinity of the activity for 

which take is permitted. There is no 

notification requirement for that beyond 

reporting each occurrence where take is 

discovered to have occurred. The 


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Service tracks whether the take level is 

exceeded or is likely to be exceeded. 

(16) Recordkeeping Requirements— 

As required by 50 CFR 13.46, permittees 

must keep records of the activity as it 

relates to eagles and any data gathered 

through surveys and monitoring, 

including records associated with the 

required internal incident reporting 

system for bald eagle and golden eagle 

remains found and the disposition of 

the remains. This information retained 

by permittees is described above under 

reporting requirements. 

(17) Amendments—Amendments to a 

permit may be requested by the 

permittee, or the Service may amend a 

permit for just cause upon a written 

finding of necessity. Amendments 

comprise changes to the permit 

authorization or conditions. Those 

changes may include an increase or 

decrease in the authorized take or 

possession of eagles, proposed 

adjustment of permit conditions, or 

changes to the activity involving eagles. 

The permit will specify circumstances 

under which the Service will require 

modifications to avoidance, 

minimization, or compensatory 

mitigation measures or monitoring 

protocols, which may include, but are 

not limited to take levels, location of 

take, and/or changes in eagle use of the 

activity area. 

At a minimum, the permit must 

specify actions to be taken if take 

approaches or reaches the amount 

authorized and anticipated within a 

given timeframe. The permittee applies 

for amendments to the permit by 

submitting a description of the modified 

activity and the changed conditions 

affecting eagles. Substantive 

amendments incur a processing fee. A 

permittee is not required to pay a 

processing fee for minor changes, such 

as the legal individual or business name 

or mailing address of the permittee. A 

permittee is required to notify the 

issuing office within 10 calendar days of 

minor changes. 

(18) Transfers—In general, permits 

issued under 50 CFR part 22 are not 

transferable. However, when authorized, 

permits issued under § 22.80 may be 

transferred by the transferee providing 

written assurances of sufficient funding 

of the avoidance and minimization 

measures and commitment to carry out 

the terms and conditions of the permit. 

Copies of the draft forms are available 

to the public by submitting a request to 

the Service Information Collection 

Clearance Officer using one of the 

methods identified in ADDRESSES. 

Title of Collection: Eagle Permits and 

Fees, 50 CFR parts 10, 13, and 22. 

OMB Control Number: 1018–0167. 

Form Numbers: FWS Forms 3–200– 

14, 3–200–15a, 3–200–16, 3–200–18, 3– 

200–71, 3–200–72, 3–200–77, 3–200–78, 

3–200–82, 3–202–11, 3–202–13, 3–202– 

14, 3–202–15, 3–202–16, 3–1552, 3– 

1591, 3–2480, 3–202–91 (New). 

Type of Review: Revision of a 

currently approved collection. 

Respondents/Affected Public: 

Individuals, businesses, and State/local/ 

Tribal governments. We expect the 

majority of applicants seeking permits 

will be in the energy production and 

electrical distribution business. 

Total Estimated Number of Annual 

Respondents: 8,406. 

Total Estimated Number of Annual 

Responses: 8,406. 

Estimated Completion Time per 

Response: Varies from 15 minutes to 

200 hours, depending on activity. 

Total Estimated Number of Annual 

Burden Hours: 32,882. 

Respondent’s Obligation: Required to 

obtain or retain a benefit. 

Frequency of Collection: On occasion 

for applications; annually or on 

occasion for reports. 

Total Estimated Annual Non-hour 

Burden Cost: $1,737,460 (primarily 

associated with application processing 

and administrative fees). 

On September 30, 2022, we published 

in the Federal Register (87 FR 59598) a 

proposed rule (RIN 1018–BE70) that 

announced our intention to request 

OMB approval of the revisions to this 

collection explained above and the 

simultaneous renewal of OMB Control 

No. 1018–0167. In that proposed rule, 

we solicited comments for 60 days on 

the information collections in this 

submission, ending on November 29, 

2022. Summaries of comments 

addressing the information collections 

contained in this rule, as well as the 

agency response to those comments, can 

be found in the Response to Public 

Comments section of this rule, as well 

as in the information collection request 

submitted to OMB on the RegInfo.gov 

website (https://www.reginfo.gov/ 

public/). 

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 this information collection, 

including: 

(1) Whether or not the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether or not the 

information will have practical utility; 

(2) The accuracy of our estimate of the 

burden for this collection of 

information, including the validity of 

the methodology and assumptions used; 

(3) Ways to enhance the quality, 

utility, and clarity of the information to 

be collected; and 

(4) How the agency might minimize 

the burden of the collection of 

information on those who are to 

respond, including through the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology, e.g., permitting 

electronic submission of response. 

Send your written comments and 

suggestions on this information 

collection by the date indicated in 

DATES to https://www.reginfo.gov/ 

public/do/PRAMain. Find this 

particular information collection by 

selecting ‘‘Currently under 30-day 

Review—Open for Public Comments’’ or 

by using the search function. Please 

provide a copy of your comments to the 

Service Information Collection 

Clearance Officer, U.S. Fish and 

Wildlife Service, MS: PRB/PERMA 

(JAO), 5275 Leesburg Pike, Falls 

Church, VA 22041–3803 (mail); or by 

email to Info_Coll@fws.gov. Please 

reference OMB Control Number 1018– 

0167 in the subject line of your 

comments. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

We evaluated the environmental 

impacts of the changes to the 

regulations and completed an 

environmental assessment and finding 

of no significant impact. The FONSI is 

the final step in the NEPA process for 

this eagle rule revision process. The 

FONSI and final environmental 

assessment are available in Docket No. 

FWS–HQ–MB–2020–0023 (available at 

https://www.regulations.gov). 

Endangered and Threatened Species 

Section 7 of the Endangered Species 

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

1531–43), requires Federal agencies to 

‘‘ensure 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)). IntraService consultations and conferences 

consider the effects of the Service’s 

actions on listed species, species 

proposed for listing, and candidate 

species. Our final action of issuing our 

regulations regarding take of non-ESAlisted eagles does not authorize, fund, or 

carry out any activity that may affect— 

directly or indirectly—any ESA-listed 

species or their critical habitat. See, e.g., 

Sierra Club v. Bureau of Land Mgmt., 

786 F.3d 1219 (9th Cir. 2015). Indeed, 


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the Eagle Act does not empower us to 

authorize, fund, or carry out project 

activities by third parties. The Eagle Act 

empowers us to authorize take of bald 

and golden eagles. Thus, we have 

determined these revisions have no 

effect on any listed species, species 

proposed for listing, or candidate 

species or their critical habitat. As a 

result, section 7 consultation is not 

required on this rulemaking action. As 

appropriate, we will conduct projectspecific, intra-Service section 7 

consultations in the future if our 

proposed act of issuing a permit for take 

of eagles may affect ESA-listed species 

or critical habitat. 

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 the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretary’s Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

Although we do not consider this 

rulemaking as having Tribal 

implications according to E.O. 13175 

because it is not likely to have 

‘‘substantial direct effects’’ on any 

particular Tribe, we conducted Tribal 

outreach and invited government-togovernment consultation as if it does. 

The Service provided written 

notification to Tribes about the ANPR 

and the proposed rule and offered 

government-to-government 

consultation. The Service conducted 

Tribal informational webinars on 

October 14 and 21, 2021, during the 

ANPR public comment period as well as 

prior to publication of the proposed 

rule. Seven Tribal representatives 

provided written comments. The 

Service conducted two additional Tribal 

informational webinars on October 19 

and November 2, 2022, during the 

proposed rule public comment period as 

well as bilateral information sessions 

when requested by Tribes. Tribal 

consulation was requested by one Tribe, 

which was conducted in September 

2023. No other Tribes requested 

consultation with the Service. The 

Service conducted a final Tribal 

informational webinar on December 12, 

2023, regarding the changes the Service 

made in developing the final rule. 

Eleven Tribal representatives provided 

written comments. As described earlier 

in this preamble, we have revised the 

proposed regulations in response to 

these comments. 

The Service acknowledges our 

Federal Tribal trust responsibilities and 

deeply honors our sovereign nation-tonation relationship with Tribes. 

Throughout all phases of the rulemaking 

process, the Service has encouraged and 

welcomed Tribal engagement, including 

government-to-government 

consultation. To date, we have 

conducted one government-togovernment consultation. We invite 

further bilateral government-togovernment consultation at any time. 

Energy Supply, Distribution, or Use 

(E.O. 13211) 

E.O. 13211 requires agencies to 

prepare statements of energy effects 

when undertaking certain actions. This 

rule is a significant regulatory action 

under E.O. 12866; however, it will not 

significantly affect energy supplies, 

distribution, or use. The permitting 

process streamlines permitting for wind 

energy and power distribution; 

therefore, the rule is intended to ease 

any administrative burden on energy 

development and will not impact it 

negatively. Therefore, this action is not 

a significant energy action, 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 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation, Wildlife. 

Regulation Promulgation 

Accordingly, we hereby amend parts 

13 and 22 of subchapter B of chapter I, 

title 50 of the Code of Federal 

Regulations, as set forth below: 

PART 13—GENERAL PERMIT 

PROCEDURES 

■ 1. The authority citation for part 13 

continues to read as follows: 

Authority: 16 U.S.C. 668a, 704, 712, 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 § 13.5 to read as follows: 

§ 13.5 Information collection requirements. 

The Office of Management and Budget 

(OMB) has approved the information 

collection requirements contained in 

part 13 and assigned OMB Control 

Numbers 1018–0022, 1018–0070, 1018– 

0092, 1018–0093, or 1018–0167 (unless 

otherwise indicated). Federal agencies 

may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. Direct comments regarding the 

burden estimates or any other aspect of 

the information collection to the 

Service’s Information Collection 

Clearance Officer at the address 

provided at 50 CFR 2.1(b). 

■ 3. Amend § 13.11 by: 

■ a. Revising paragraphs (d)(2) and 

(d)(3)(i); and 

■ b. In the table in paragraph (d)(4): 

■ i. Removing the 15 entries under 

‘‘Bald and Golden Eagle Protection Act’’ 

and adding 17 new entries in their 

place; and 

■ ii. Revising the footnote 1. 

The revisions and additions read as 

follows: 

§ 13.11 Application procedures. 

* * * * * 

(d) * * * 

(2) If regulations in this subchapter 

require more than one type of permit for 

an activity and the permits are issued by 

the same office, the issuing office may 

issue one consolidated permit 

authorizing take caused by the activity 

in accordance with § 13.1. You may 

submit a single application in these 

cases, provided that the single 

application contains all the information 

required by the separate applications for 

each activity. Where more than one 

activity is consolidated into one permit, 

the issuing office will charge the highest 

single fee for the activity for which take 

is permitted. Administration fees are not 

waived. 

(3) * * * 

(i) We will not charge a permit 

application fee to any Federal, Tribal, 

State, or local government agency or to 

any individual or institution acting on 

behalf of that agency, except 

administration fees for permits issued 

under subpart E of part 22 of this 

subchapter will not be waived. If you 

fail to submit evidence of agency status 

with your application, we will require 

the submission of all processing fees 

prior to the acceptance of the 


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application for processing, unless 

otherwise authorized or waived. 

* * * * * 

(4) * * * 

Type of permit CFR citation Permit application fee 1 Administration fee 2 Amendment fee 

*******

Bald and Golden Eagle Protection Act 

Eagle Scientific Collecting .............................. 50 CFR part 22 ....... 100.

Eagle Exhibition .............................................. 50 CFR part 22 ....... 75.

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

Eagle Depredation Permit ............................... 50 CFR part 22 ....... 100.

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

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

Eagle Transport—Native American Religious 

Purposes.

50 CFR part 22 ....... No fee.

General Eagle Permit—Disturbance Take ..... 50 CFR part 22 ....... 100.

Specific Eagle Permit—Disturbance Take ...... 50 CFR part 22 ....... Commercial—2,500; Noncommercial—500................................................. Commercial—500; Noncommercial—150. 

General Eagle Permit—Nest Take ................. 50 CFR part 22 ....... 100.

Specific Eagle Permit—Nest Take (Single 

nest).

50 CFR part 22 ....... Commercial—2,500; Noncommercial—500................................................. Commercial—500; Noncommercial—150. 

Specific Eagle Permit Eagle—Nest Take 

(Multiple nests).

50 CFR part 22 ....... 5,000 ...................................... ................................................ 500. 

General Eagle Permit—Incidental Take 

(Power lines).

50 CFR part 22 ....... 1,000 ...................................... Non-Investor Owned—2,500; 

Investor Owned—10,000.

General Eagle Permit—Incidental Take (Wind 

energy).

50 CFR part 22 ....... 1,000 ...................................... Distributed and Community 

Scale—2,500; Utility 

Scale—10,000.

Specific Eagle Permit—Incidental Take ......... 50 CFR part 22 ....... Tier 1—18,000; Tier 2— 

26,000.

10,000 .................................... 500. 

Eagle Take—Exempted under ESA ............... 50 CFR part 22 ....... ................................................ No fee.

Transfer of a Subpart E Eagle Permit ............ 50 CFR part 22 ....... 1,000.

* * * * * * * 

1A reimbursable agreement may be required for specific eagle permits to cover the costs above estimated staff-hours. 

2An administration fee will be assessed at the time of application, in addition to the application fee. 

* * * * * 

■ 4. Amend § 13.12 by: 

■ a. Revising paragraph (a)(1)(ii); and 

■ b. In table 1 to paragraph (b), 

removing the 8 entries under ‘‘Eagle 

Permits’’ and adding in their place 10 

new entries. 

The revisions and additions read as 

follows: 

§ 13.12 General information requirements 

on applications for permits. 

(a) * * * 

(1) * * * 

(ii) If the applicant is an individual, 

the date of birth, occupation, and any 

business, agency, organizational, or 

institutional affiliation associated with 

the wildlife or plants to be covered by 

the license or permit; or 

* * * * * 

(b) * * * 

TABLE 1 TO PARAGRAPH (b) 

Type of permit Section 

*******

Eagle permits: 

Scientific or exhibition ....................................................................................................................................................... 22.50. 

Indian religious use .......................................................................................................................................................... 22.60. 

Falconry purposes ............................................................................................................................................................ 22.70. 

Depredation and protection of health and safety ............................................................................................................. 22.100. 

Permits for incidental take of eagles ................................................................................................................................ 22.200 or 22.210. 

Permits for incidental take of eagles by power lines ....................................................................................................... 22.200 or 22.210. 

Permits for disturbance take of eagles ............................................................................................................................. 22.200 or 22.210. 

Permits for nest take of eagle .......................................................................................................................................... 22.200 or 22.210. 

Permits for golden eagle nest take for resource recovery operations ............................................................................. 22.325. 

Permits for bald eagle take exempted under the Endangered Species Act .................................................................... 22.400. 

§ 13.24 [Amended] 

■ 5. Amend § 13.24 in paragraph (c) 

introductory text by removing ‘‘§ 22.80 

of this subchapter B’’ and adding in its 

place ‘‘part 22, subpart E, of this 

subchapter’’. 

§ 13.25 [Amended] 

■ 6. Amend § 13.25 in paragraphs (b) 

introductory text and (f) by removing 

‘‘§ 22.80 of this subchapter B’’ and 

adding in its place ‘‘part 22, subpart E, 

of this subchapter’’. 

PART 22—EAGLE PERMITS 

■ 7. The authority citation for part 22 

continues to read as follows: 

Authority: 16 U.S.C. 668–668d; 703–712; 

1531–1544. 


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■ 8. Amend § 22.6 by: 

■ a. Revising the definitions of ‘‘Eagle 

management unit (EMU)’’ and ‘‘Eagle 

nest’’; 

■ b. Adding in alphabetic order a 

definition for ‘‘General permit’’; 

■ c. Revising the definition of ‘‘In-use 

nest’’; and 

■ d. Adding in alphabetic order a 

definition of ‘‘Incidental take’’. 

The revisions and additions read as 

follows: 

§ 22.6 Definitions. 

* * * * * 

Eagle management unit (EMU) means 

a geographically bounded region within 

which permitted take is regulated to 

meet the management goal of 

maintaining stable or increasing 

breeding populations of bald eagles or 

golden eagles. 

(1) The Atlantic EMU is Connecticut, 

Delaware, Florida, Georgia, Maine, 

Maryland, Massachusetts, New 

Hampshire, New Jersey, New York, 

North Carolina, Pennsylvania, Rhode 

Island, South Carolina, Vermont, 

Virginia, and West Virginia. 

(2) The Mississippi EMU is Alabama, 

Arkansas, Illinois, Indiana, Iowa, 

Kentucky, Louisiana, Michigan, 

Minnesota, Mississippi, Missouri, Ohio, 

Tennessee, and Wisconsin. 

(3) The Central EMU is Kansas, 

Nebraska, New Mexico, North Dakota, 

Oklahoma, South Dakota, and Texas; 

portions of Colorado, New Mexico, and 

Wyoming east of the Continental Divide; 

and portions of Montana east of Hill, 

Chouteau, Cascade, Meagher, and Park 

Counties. 

(4) The Pacific EMU is Alaska, 

Arizona, California, Idaho, Nevada, 

Oregon, Utah, Washington; portions of 

Colorado, New Mexico, and Wyoming 

west of the Continental Divide; and in 

Montana Hill, Chouteau, Cascade, 

Meagher, and Park Counties and all 

counties west of those counties. 

(5) An EMU may be further divided 

between north and south along the 40th 

Parallel. 

Eagle nest means any assemblage of 

materials built, maintained, or used by 

bald eagles or golden eagles for the 

purpose of reproduction. An eagle nest 

remains an eagle nest until it becomes 

so diminished, or the nest substrate 

upon which it is built fails, that the nest 

is no longer usable and is not likely to 

become usable to eagles, as determined 

by a Federal, Tribal, or State eagle 

biologist. 

* * * * * 

General permit means a permit that 

has nationwide or regional standard 

conditions for a category, or categories, 

of activities that are substantially 

similar in nature. 

* * * * * 

In-use nest means a bald eagle or 

golden eagle nest that contains one or 

more viable eggs or dependent young, 

or, for golden eagles only, has had adult 

eagles on the nest within the past 10 

days during the breeding season. 

Incidental take means take that is 

foreseeable and results from, but is not 

the purpose of, an activity. 

* * * * * 

■ 9. Amend § 22.12 by adding paragraph 

(c) to read as follows: 

§ 22.12 Illegal activities. 

* * * * * 

(c) Application for a permit does not 

release you from liability for any take 

that occurs prior to issuance of, or 

outside the terms of, a permit. 

■ 10. Revise the heading of subpart C to 

read as follows: 

Subpart C—Eagle Possession Permit 

Provisions 

§ 22.80 [Removed and Reserved] 

■ 11. Remove and reserve § 22.80. 

§ 22.85 [Removed and Reserved] 

■ 12. Remove and reserve § 22.85. 

■ 13. Add subpart E to read as follows: 

Subpart E—Take of Eagles for Other 

Interests 

Sec. 

22.200 Specific permits. 

22.210 General permits. 

22.215 Conditions of permits. 

22.220 Compensatory mitigation. 

22.250 Permits for incidental take of eagles 

by wind energy projects. 

22.260 Permits for incidental take of eagles 

by power lines. 

22.280 Permits for disturbance take of 

eagles. 

22.300 Permits for take of eagle nests. 

§ 22.200 Specific permits. 

(a) Purpose. Specific permits 

authorize the take of bald eagles or 

golden eagles for other interests by 

activities that are described in the 

regulations in this subpart. Proponents 

of projects may apply for a specific 

permit if they do not meet eligibility 

criteria for general permits described 

in—or are conducting an activity not 

identified in—§ 22.250, § 22.260, 

§ 22.280, or § 22.300. Specific permits 

may be recommended by the Service or 

requested by entities that are eligible for 

but do not want to obtain a general 

permit. 

(b) Eligibility. To qualify for a specific 

permit, you must be conducting an 

activity identified in § 22.250, § 22.260, 

§ 22.280, or § 22.300. You must also 

meet any eligibility requirements 

identified in the relevant section. 

(1) Permits are issued to the 

individual or entity conducting the 

activity, such as the owner or manager 

of the entity conducting the activity. 

The applicant is responsible for 

compliance with the permit and must 

have the authority to implement the 

required permit conditions. 

(2) Contractors or consultants may 

assist in completing applications or 

conducting work as a subpermittee but 

may not be a permit holder. 

(3) Applicants may not break down a 

project into small parts to minimize the 

activity. 

(4) Applicants may not combine 

projects if the activities are not readily 

identifiable as being part of the same 

project. If you want to obtain a 

consolidated permit for multiple 

activities, you must first submit a 

separate application for each project and 

request the Service determine if it is 

appropriate to consolidate permits. 

(5) Specific permits are issued to a 

single permit holder. If multiple entities 

operate a joint project and want to 

obtain joint authorization, the 

application must designate one entity as 

the permit holder and that entity must 

accept the legal liability for the other 

entities. The other entities must grant 

sufficient authority to the permit holder 

to carry out any activities required 

under the permit. 

(6) Upon receipt of your application 

for a specific permit, the Service may 

direct you to apply for a general permit 

or determine that a permit is not 

required. The Service will provide a 

letter of authorization to keep in your 

records. 

(7) For existing wind energy projects 

only, projects that are not eligible for a 

general permit for incidental take of 

eagles (§ 22.250) may request a Letter of 

Authorization from the Service to apply 

for a general permit. The Service will 

review and determine if eagle risk at the 

project is consistent with the risk 

expected for general permits. To request 

review, you must submit a specific 

permit application and request a 

determination for general permit 

eligibility. Your administration fee will 

not be refunded to cover the cost of 

conducting this review. The application 

fee may be refunded (50 CFR 

13.11(d)(1)). 

(c) How to apply for a specific permit. 

(1) Submit a completed application form 

as specified in § 22.250(a), § 22.260(a), 

§ 22.280(a), or § 22.300(a), as applicable, 

or Form 3–200–71 if the activity does 

not correspond with a particular permit 

type. Submit forms to the Regional 


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Director of the region where you will 

conduct your activity. If your activity 

spans multiple regions, submit your 

application to the region of your U.S. 

mailing address, and the Service will 

assign the appropriate administering 

region. You can find the current contact 

information for Regional Directors in 

§ 2.2 of subchapter A of this chapter. 

(2) Your application must include: 

(i) A description of the activity that 

will cause the take to be authorized, 

including the location, seasonality, and 

duration of the activity. 

(A) If applying under § 22.250 for 

wind energy projects, that description 

must include the number of turbines, 

rotor diameter, hub height, location 

coordinates of each turbine, and the 

datum of these coordinates. 

(B) If applying under § 22.260 for 

power lines, include the State and 

county(ies) of coverage and total miles 

of transmission and distribution lines. 

To the extent known, include the 

number of miles or number of poles in 

eagle-risk areas that are not avian-safe. 

(C) If applying under § 22.280 or 

§ 22.300, include the location of known 

nest(s) and nest status (e.g., in-use or 

alternate). 

(ii) Justification of why there is no 

practicable alternative to take that 

would protect the interest to be served. 

(iii) An eagle impacts assessment, 

including eagle activity and eagle use in 

the project area and a description of 

methods used to conduct this 

assessment. If the Service has officially 

issued or endorsed survey, modeling, 

take-estimation, or other standards for 

the activity that will take eagles, you 

must follow them and include in your 

application all the information thereby 

obtained, unless the Service waives this 

requirement for your application. 

(iv) Implemented and proposed steps 

to avoid and minimize to the maximum 

degree practicable, compensate for, and 

monitor impacts on eagles. 

(v) Alternative actions considered and 

the reasons why those alternatives are 

not practicable. 

(vi) Any supplemental information 

necessary for the Service to make an 

adequate determination on the 

application (see § 13.21 of this 

subchapter). 

(vii) Payment of the required 

application and administration fees (see 

§ 13.11(d)(4) of this subchapter) for the 

appropriate fee tier, and, if required, 

proposed compensatory mitigation plan 

or eagle credits to be obtained from a 

Service-approved conservation bank or 

in-lieu fee program. All compensatory 

mitigation must comply with the 

provisions of § 22.220. For incidental 

take permits issued under §§ 22.250 and 

22.260: 

(A) The Tier 1 application fee is 

assessed when standardized permit 

conditions require negligible 

modifications, additional environmental 

compliance review is not required, and, 

if required, fatality estimates require 

minimal data manipulation. 

(B) The Tier 2 application fee is 

assessed for all other specific permit 

incidental take applications that require 

275 staff-hours or fewer for review, 

including compliance with the 

procedural requirements of NEPA. The 

Service may require applicants to enter 

into a reimbursable agreement to cover 

the costs above 275 staff-hours. 

(d) Issuance criteria. Upon receiving a 

complete application, the Regional 

Director will decide whether to issue a 

permit based on the general criteria of 

§ 13.21 of this subchapter and whether 

the application meets the following 

requirements: 

(1) The applicant is eligible for a 

specific permit. 

(2) The take: 

(i) Is necessary to protect a legitimate 

interest in a particular locality; 

(ii) Results from, but is not the 

purpose of, the activity; and 

(iii) Cannot practicably be avoided. 

(3) The amount of take the Service 

authorizes under the permit is 

compatible with the preservation of the 

bald eagle and the golden eagle, 

including consideration of the effects of 

other permitted take and other factors 

affecting bald eagle and golden eagle 

populations. 

(4) The applicant has proposed 

avoidance and minimization measures 

to reduce the take to the maximum 

degree practicable relative to the 

magnitude of the activity’s impacts on 

eagles. These measures must meet or 

exceed the requirements of the general 

permit regulation (§ 22.210), except 

where not practicable. 

(5) If compensatory mitigation is 

required, the applicant has proposed 

either to implement compensatory 

mitigation measures that comply with 

the standards in § 22.220 or secure 

required eagle credits from a Serviceapproved conservation bank or in-lieu 

fee program. Compensatory mitigation 

must meet or exceed the requirements of 

the general permit regulation (§ 22.210), 

except when the Service’s evaluation of 

site-specific data indicates a lower 

mitigation rate is appropriate. 

(6) The applicant has proposed 

monitoring plans that are sufficient to 

determine the effects on eagle(s) of the 

proposed activity. 

(7) The proposed reporting is 

sufficient for the Service to determine 

the effects on eagle(s). 

(8) Any additional factors that may be 

relevant to our decision whether to 

issue the permit, including, but not 

limited to, the cultural significance of a 

local eagle population and whether 

issuance of a permit would preclude the 

Service from authorizing take necessary 

to protect an interest of higher priority. 

The Service will prioritize safety 

emergencies, Native American Tribal 

religious use, and public health and 

safety. 

(e) Modifications to your permit. If the 

permittee requests substantive 

amendments (see § 13.11(d)(5) of this 

subchapter) during the permit tenure, 

the Service will charge an amendment 

fee. The Service will charge an 

amendment fee and an administration 

fee for permittee-requested substantive 

amendments that require new analysis, 

such as modifications that result in reestimating take, re-evaluating 

compensatory mitigation requirements, 

or requiring additional environmental 

review to comply with procedural 

requirements under NEPA. 

(f) Tenure. The tenure of each permit 

will be designated on the face of the 

permit. Specific permits may be valid 

for a maximum of 30 years. Permit 

tenure may be less, as restricted by the 

provisions for specific activities set 

forth in § 22.250, § 22.260, § 22.280, or 

§ 22.300 or as appropriate to the 

duration and nature of the proposed 

activity, including mitigation 

requirements. 

§ 22.210 General permits. 

(a) Purpose. General permits authorize 

the take of bald eagles or golden eagles 

for other interests that meet the 

eligibility requirements for general 

permits set forth in § 22.250, § 22.260, 

§ 22.280, or § 22.300. 

(b) Eligibility. To qualify for a general 

permit, you must be conducting an 

activity identified in § 22.250, § 22.260, 

§ 22.280, or § 22.300 and meet any 

additional eligibility requirements 

identified in the relevant section. 

(1) Permits are issued to the 

individual or entity conducting the 

activity, such as the owner or manager 

of the entity conducting the activity. 

The applicant is responsible for 

compliance with the permit and must 

have the authority to implement the 

required permit conditions. 

(2) Contractors or consultants may 

assist in completing applications or 

conducting work as a subpermittee but 

may not be a permit holder. 

(3) Applicants may not break a project 

into parts to meet general permit 


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eligibility criteria when the entire 

project would not be eligible. 

(4) Applicants may not combine 

projects if the activities are not readily 

identifiable as being part of the same 

project. If you want to obtain a 

consolidated permit for multiple 

activities, you must apply for a specific 

permit. 

(5) General permits are issued to a 

single permit holder. If multiple entities 

operate a joint project and want to 

obtain joint authorization, the 

application must designate one entity as 

the permit holder and that entity must 

accept the legal liability for the other 

entities. The other entities must grant 

sufficient authority to the permit holder 

to carry out any activities required 

under the permit. 

(6) The Service may notify you in 

writing that you must apply for a 

specific permit if the Service finds that 

the project does not comply with the 

requirements for a general permit. 

(c) How to apply. (1) Register with the 

Service by submitting the appropriate 

application form specified in 

§ 22.250(a), § 22.260(a), § 22.280(a), or 

§ 22.300(a) to Headquarters. You can 

find the current contact information for 

Migratory Birds in § 2.1 of subchapter A 

of this chapter. 

(2) Your application must include: 

(i) A description of the activity that 

will cause the take of bald eagles or 

golden eagles, including the location, 

and seasonality. 

(A) If applying under § 22.250 for 

wind energy projects, include the 

number of turbines, rotor diameter, hub 

height, location coordinates of each 

turbine, and the datum of these 

coordinates. 

(B) If applying under § 22.260 for 

power lines, include the State and 

county(ies) of coverage and total miles 

of transmission and distribution lines. 

To the extent known, include the 

number of miles or number of poles in 

eagle-risk areas that are not avian-safe. 

(C) If applying under § 22.280 or 

§ 22.300, include the location of known 

nests and nest status (i.e., in-use or 

alternate). 

(ii) Justification of why there is no 

practicable alternative to take that 

would protect the interest to be served. 

(iii) Description of eagle activity and 

eagle use in the project area. 

(iv) Certification that the activity 

involving the take of eagles authorized 

by the general permit complies with all 

other applicable Federal, State, Tribal, 

and local laws. This includes certifying 

that the activity for which take is to be 

authorized by the general permit either 

does not affect a property that is listed, 

or is eligible for listing, in the National 

Register of Historic Places as maintained 

by the Secretary of the Interior; or that 

the applicant has obtained, and is in 

compliance with, a written agreement 

with the relevant State Historic 

Preservation Officer or Tribal Historic 

Preservation Officer that outlines all 

measures the applicant will undertake 

to mitigate or prevent adverse effects to 

the historic property. 

(v) Payment of required application 

and administration fees (see 

§ 13.11(d)(4) of this subchapter). 

(vi) A certification that the applicant 

agrees to acquire eagle credits, if 

required, from a Service-approved 

conservation bank or in-lieu fee program 

within 90 days of the effective date of 

the permit. 

(d) Issuance criteria. Upon an 

applicant registering by submitting an 

application under paragraph (c) of this 

section, the Service will automatically 

issue a general permit to authorize the 

take requested in the application. In 

registering, you must certify that you 

meet the general criteria of § 13.21 of 

this subchapter and the following 

issuance criteria: 

(1) You are conducting an activity that 

qualifies for a general permit. 

(2) The take: 

(i) Is necessary to protect a legitimate 

interest in a particular locality; 

(ii) Results from, but is not the 

purpose of, the activity; and 

(iii) Cannot practicably be avoided. 

(3) The activity is consistent with the 

requirements applicable to that activity 

as specified in § 22.250, § 22.260, 

§ 22.280, or § 22.300. 

(4) You will implement the general 

permit conditions applicable to your 

activity, including required avoidance, 

minimization, monitoring, and reporting 

requirements. 

(5) You will obtain any required eagle 

credits from a Service-approved 

conservation bank or in-lieu fee program 

within 90 days of the effective date of 

your permit. 

(e) Program continuation. The Service 

will regularly evaluate whether the take 

of bald eagles and golden eagles under 

general permits remains compatible 

with the preservation of eagles. If the 

Service finds, through analysis of the 

best available information, that the 

general permit program is not 

compatible with the preservation of bald 

eagles or golden eagles, the Service may 

suspend issuing general permits in all or 

in part after publishing notification in 

the Federal Register. The Service may 

reinstate issuance of general permits 

after publishing another notification in 

the Federal Register or by promulgating 

additional rulemaking. If the Service 

suspends general permitting, take 

currently authorized under a general 

permit remains authorized until 

expiration of that general permit, unless 

you are notified otherwise. 

(f) Tenure. The tenure of each permit 

will be designated on the face of the 

permit. General permits have a 

maximum tenure of 5 years. Permit 

tenure may be less, as restricted by the 

applicable provisions in § 22.250, 

§ 22.260, § 22.280, or § 22.300. 

§ 22.215 Conditions of permits. 

(a) Anyone conducting activities 

under a specific permit (§ 22.200) or 

general permit (§ 22.210) is subject to 

the conditions set forth in this section. 

You must also comply with the relevant 

conditions set forth in subpart D of part 

13 of this subchapter and the conditions 

of your general or specific permit. 

(1) Your permit will specify the type 

of take authorized (e.g., incidental take, 

disturbance, nest take) and may specify 

the amount, location, or other 

restrictions on the take authorized. You 

are not authorized for any take not 

specified on the face of your permit. 

(2) Your permit will require 

implementation of avoidance, 

minimization, monitoring, and adaptive 

management measures consistent with 

the relevant regulations in this subpart 

E. This may include requirements to: 

(i) Modify the seasonality, frequency, 

timing, duration, or other aspects of 

your activity. 

(ii) Implement measures to avoid and 

minimize the take or effects of take on 

eagles. 

(iii) Monitor to determine the effects 

of the activity on eagles according to 

Service-approved protocols. 

(iv) Implement an adaptive 

management plan. 

(3) Your permits will specify 

requirements for reporting and 

disposing of any discovered eagle 

remains or injured eagles. Requirements 

may include: 

(i) Training onsite personnel and 

requiring personnel to scan for 

discovered eagle remains or injured 

eagles; 

(ii) Collecting information on 

discovered eagle remains or injured 

eagles, including species, condition, 

discovery date, location, and other 

information relevant to eagle 

identification and determining the cause 

of death or injury; 

(iii) Reporting discovered eagle 

remains or injured eagles, including 

immediate notification and annual 

reporting; and 

(iv) Disposition of any discovered 

eagle remains or injured eagles in 

accordance with Service instructions, 

which may include shipping eagles to 


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the National Eagle Repository or other 

designated facility. 

(4) You must comply with all Service 

reporting requirements. You must 

annually report incidental take and 

disturbance take using Form 3–202–15. 

You must report nest take using Form 

3–202–16. You must submit accurate 

reports within the required timeline. 

(5) You must comply with all 

compensatory mitigation requirements 

in accordance with § 22.220, including 

any additional requirements contained 

in § 22.250, § 22.260, § 22.280, or 

§ 22.300. 

(6) You must keep records of all 

activities conducted under this permit, 

including those of subpermittees carried 

out under the authority of this permit 

(see § 13.46 of this subchapter). You 

must provide records to the Service 

upon request. 

(7) By accepting this permit, you are 

authorizing the Service to: 

(i) Publish the following information 

in a public list of permittees: permittee 

name, permit type, county and State of 

activity, and effective date range. 

(ii) Inspect the location and records 

relating to the activity at the location 

where those records are kept. Any 

inspections will occur during regular 

business hours (see § 13.21(e) of this 

subchapter). 

(iii) Provide access to Service staff or 

contractors as part of participation in 

the Service’s program-wide monitoring. 

The Service will provide reasonable 

notice for requests to access sites and 

negotiate with the permittee about 

practicable and appropriate access 

conditions to protect human health and 

safety and comply with any physical, 

logistical, or legal constraints. 

(8) You are responsible for ensuring 

that the activity for which take is 

authorized complies with all applicable 

Federal, Tribal, State, and local laws, 

regulations, and permits. You must 

comply with all label instructions for 

handling controlled substances and 

chemicals, including pesticides. 

(9) Permits are issued to the entity or 

individual conducting the action. 

(i) The Principal Officer is the chief 

operating officer responsible for the 

permit application and any permitted 

activities. The Principal Officer is 

responsible for compliance with all 

conditions of authorization, including 

the conditions listed here and any 

permit conditions. The Principal Officer 

must have the authority to implement 

all conditions and is legally liable for 

any subpermittee conducting activities 

under the permit. 

(ii) The authority of this authorization 

may be exercised by subpermittees. A 

subpermittee is any person who is 

employed by the authorized entity to 

conduct the activities specified or any 

person designated as a subpermittee in 

writing by the Principal Officer. 

Subpermittee-designation letters must 

identify who can conduct what 

activities and list any restrictions on the 

dates, locations, or types of activities the 

subpermittee may conduct. 

(iii) The Principal Officer is 

responsible for any subpermittee who is 

conducting authorized activities. 

Subpermittees must have the conditions 

of authorization and, if applicable, a 

copy of the permit readily available. 

Subpermittees who are not employees 

must also have a subpermitteedesignation letter. 

(b) The Service may amend, suspend, 

or revoke a permit issued under this 

subpart if new information indicates 

that revised permit conditions are 

necessary, or that suspension or 

revocation is necessary, to safeguard 

local or regional eagle populations. This 

provision is in addition to the general 

criteria for amendment, suspension, and 

revocation of Federal permits set forth 

in §§ 13.23, 13.27, and 13.28 of this 

subchapter. 

(c) Notwithstanding the provisions of 

§ 13.26 of this subchapter, you remain 

responsible for all outstanding 

monitoring requirements and mitigation 

measures required under the terms of 

the permit for take that occurs prior to 

cancellation, expiration, suspension, or 

revocation of the permit. 

§ 22.220 Compensatory mitigation. 

(a) Your permit conditions may 

include a requirement to compensate for 

the take of eagles. 

(1) Any permit authorizing take that 

would exceed the applicable EMU take 

limit will require compensatory 

mitigation, except in circumstances 

where the action is considered in the 

best interest of an eagle. Compensatory 

mitigation for this purpose must ensure 

the preservation of the affected eagle 

species by mitigating an amount equal 

to or greater than the authorized or 

expected take. Compensatory mitigation 

must either reduce another ongoing 

form of mortality or increase the eagle 

population of the affected species. 

Compensatory mitigation for golden 

eagles must be performed at a 1.2:1 

(mitigation: take) ratio. 

(2) A permit may require 

compensatory mitigation when the 

Service determines, according to the 

best available information, that the take 

authorized by the permitted activity is 

not consistent with maintaining the 

persistence of the local area population 

of an eagle species. 

(b) All required compensatory 

mitigation actions must: 

(1) Be contingent upon application of 

avoidance and minimization measures 

to reduce the take to the maximum 

degree practicable relative to the 

magnitude of the project’s impacts on 

eagles. 

(2) Be sited within: 

(i) The same EMU where the 

permitted take will occur; or 

(ii) Another EMU if the Service has 

reliable data showing that the 

population affected by the take includes 

individuals that are reasonably likely to 

use that EMU during part of their 

seasonal migration. 

(3) If required by the Service, be sited 

within a specified local area population. 

(4) Use the best available science in 

formulating, crediting, and monitoring 

the long-term effectiveness of mitigation 

measures. 

(5) Be additional to and improve upon 

the baseline conditions for the affected 

eagle species in a manner that is 

demonstrably new and would not have 

occurred without the compensatory 

mitigation. 

(6) Be durable and, at a minimum, 

maintain its intended purpose for as 

long as required by the mitigation 

conditions in the permit. 

(7) Include mechanisms to account for 

and address uncertainty and risk of 

failure of a compensatory mitigation 

measure. 

(8) Include financial assurances that 

the required compensatory mitigation 

measures will be implemented in full. 

(c) Compensatory mitigation must be 

approved by the Service and may 

include conservation banks, in-lieu fee 

programs, or permittee-responsible 

mitigation as mitigation providers. 

(1) General permittees meet this 

requirement by obtaining required 

credits from a Service-approved, thirdparty mitigation provider. Specific 

permittees can meet this requirement by 

obtaining required credits from a 

Service-approved, third-party mitigation 

provider or meeting the requirements to 

be a permittee-responsible mitigation 

provider as described in paragraph (c)(2) 

of this section. Third-party mitigation 

providers (e.g., in-lieu fee programs and 

conservation banks) obtain Service 

approval by meeting the requirements to 

be a mitigation provider as described in 

paragraph (c)(2) of this section. 

(2) To obtain approval as a mitigation 

provider, potential providers must 

submit a mitigation plan to the Service 

that demonstrates how the standards set 

forth in paragraph (b) of this section will 

be met. At a minimum, this must 

include a description of the mitigation, 

the benefit to eagles, the locations where 


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projects will be implemented, the EMU 

and local area population affected, the 

number of credits provided, and an 

explanation of the rationale for the 

number of eagle credits provided. The 

Service must approve the mitigation 

plan prior to implementation. 

§ 22.250 Permits for incidental take of 

eagles by wind energy projects. 

(a) Purpose. The regulations in this 

section authorize the incidental killing 

or injury of bald eagles and golden 

eagles associated with the operation of 

wind energy projects. Apply using Form 

3–200–71. 

(b) Definition. The following term 

used in this section has the meaning set 

forth in this paragraph (b): 

Existing project. Infrastructure that 

was operational prior to May 13, 2024, 

as well as infrastructure that was 

sufficiently far along in the planning 

process on that date that complying 

with new requirements would be 

impracticable, including if an 

irreversible or irretrievable commitment 

of resources has been made (e.g., site 

preparation was already underway or 

infrastructure was partially 

constructed). 

(c) Eligibility for a general permit. To 

qualify for a general permit, you must 

meet the requirements of § 22.210, be 

located in the contiguous 48 States, not 

have discovered four or more eagles of 

one species in the previous 5 years per 

paragraph (d)(3) of this section, and: 

(1) Be a project applying for a general 

permit for the first time, and all turbines 

associated with the project are: 

(i) At least 2 miles from a golden eagle 

nest and at least 660 feet from a bald 

eagle nest; and 

(ii) Located in areas characterized by 

seasonal relative abundance values that 

are less than the relative abundance 

values for the date range for each 

species in tables 1 and 2: 

TABLE 1 TO PARAGRAPH (c)(1)(ii)—RELATIVE ABUNDANCE VALUE THRESHOLDS FOR BALD EAGLES THROUGHOUT THE

YEAR

Date range 

Bald Eagle 

relative 

abundance 

1. February 15–May 23 ....................................................................................................................................................................... 0.821 

2. May 24–July 19 ............................................................................................................................................................................... 0.686 

3. July 20–December 20 ..................................................................................................................................................................... 0.705 

4. December 21–February 14 ............................................................................................................................................................. 1.357 

TABLE 2 TO PARAGRAPH (c)(1)(ii)—RELATIVE ABUNDANCE VALUE THRESHOLDS FOR GOLDEN EAGLES THROUGHOUT THE

YEAR

Date range 

Golden Eagle 

relative 

abundance 

1. February 8–June 6 .......................................................................................................................................................................... 0.081 

2. June 7–August 30 ........................................................................................................................................................................... 0.065 

3. August 31–December 6 ................................................................................................................................................................... 0.091 

4. December 7–February 7 ................................................................................................................................................................. 0.091 

(2) Be a project currently authorized 

under a general permit that: 

(i) Has discovered fewer than four 

eagles (either eagle remains or injured 

eagles) of any one species during the 

previous general permit tenure; 

(ii) Had no lapse in general-permit 

coverage; and 

(iii) Ensures that any turbines not 

authorized on the previous general 

permit meet the issuance criteria in 

paragraph (c)(1) of this section. 

(3) Be an existing project that has 

received a letter of authorization from 

the Service (see § 22.200(b)(7)). 

(d) Discovered eagle provisions for 

general permits. You must implement 

procedures to discover eagle remains 

and injured eagles in accordance with 

§ 22.215(a)(3) and as required by your 

permit conditions. In following those 

protocols: 

(1) You must include in your annual 

report the discovery of any eagle 

remains or injured eagles. 

(2) If you discover eagle remains or 

injured eagles of three eagles of any one 

species during the tenure of a general 

permit, you must notify the Service in 

writing within 2 weeks of discovering 

the take of a third eagle and implement 

adaptive management measures. When 

notifying the Service, you must include 

the reporting data required by your 

permit conditions, your adaptive 

management plan, and a description 

and justification of the adaptive 

management approaches you will 

implement for the remaining duration of 

your general permit. 

(3) If you discover eagle remains or 

injured eagles of four eagles of any one 

species during the tenure of a general 

permit, you must notify the Service in 

writing within 2 weeks of discovering 

the take of the fourth eagle. When 

notifying the Service, you must include 

the reporting data required by your 

permit conditions, your adaptive 

management plan, and a description 

and justification of the adaptive 

management approaches you will 

implement for the remaining duration of 

your general permit term. The project 

will remain authorized to incidentally 

take eagles through the term of the 

existing general permit but will not be 

eligible for future general permits. You 

may instead apply for a specific permit 

for incidental take at that project. You 

may request reconsideration of generalpermit eligibility by following the 

review procedures set forth at § 13.29 of 

this subchapter, including providing the 

information required in § 13.29(b)(3). 

(4) If the Service conducts monitoring 

at a wind project, eagle remains or 

injured eagles discovered by the 

Service, or Service contractor, are not 

attributed to the project for the purposes 

of this paragraph (d), unless the Service 

determines the eagles were also 

discovered, or were likely to have been 

discovered, by required monitoring 

efforts at the project. 

(e) Eligibility for a wind energy 

specific permit. To qualify for a specific 

permit, you must meet the requirements 

of § 22.200. In determining whether to 

issue a permit, the Service will review 

the application materials provided, 


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including the eagle impacts assessment. 

The Service will determine, using the 

best available data, the expected take of 

eagles by the proposed activity. 

(f) Wind energy permit conditions. 

The following conditions apply to all 

general and specific permits. Specific 

permits may include additional projectspecific permit conditions. 

(1) Develop and implement an 

adaptive management plan. An adaptive 

management plan applies the best 

available science and monitoring to 

refine project operations and practices. 

Plans identify criteria for 

implementation of the mitigation 

hierarchy, including avoidance, 

minimization, and compensation to 

remain consistent with permit 

conditions and the preservation of 

eagles. 

(2) Remove and avoid creating 

anthropogenic features that increase the 

risk of eagle take by attracting eagles to 

the project site or encouraging foraging, 

roosting, or nesting behaviors. 

(3) Minimize collision and 

electrocution risks, including collisions 

with turbines, vehicles, towers, and 

power lines. 

(4) Comply with all relevant 

regulations and permit conditions in 

part 21 of this subchapter. 

(5) Submit required reports to the 

Service by the applicable deadline. 

(6) Pay the required application and 

administration fees (see § 13.11(d)(4) of 

this subchapter). 

(7) Implement required compensatory 

mitigation. You must keep records to 

document compliance with this 

requirement and provide them to the 

Service with your annual report. 

(i) For wind energy specific permits, 

you must submit a plan to the Service 

in accordance with § 22.200(c) and 

implement the compensatory-mitigation 

requirements included on the face of 

your permit. 

(ii) For wind energy general permits, 

you must obtain eagle credits from a 

Service-approved conservation bank or 

in-lieu fee program based on the 

hazardous volume of the project (in 

cubic kilometers). The hazardous 

volume of a project is calculated as the 

number of turbines multiplied by 

0.200p(d/2)∧2 where d is the diameter of 

the blades in kilometers. You must 

obtain eagle credits at the following 

rates: Atlantic/Mississippi EMUs: 6.02 

eagles/km3, Central EMU: 7.46 eagles/ 

km3, and Pacific EMU: 11.12 eagles/ 

km3. 

(g) Tenure of permits. General permits 

are valid for 5 years from the date of 

registration. Specific permits may be 

valid for up to 30 years. 

§ 22.260 Permits for incidental take of 

eagles by power lines. 

(a) Purpose. The regulations in this 

section authorize the incidental killing 

or injury of bald eagles and golden 

eagles associated with power line 

activities. Apply using Form 3–200–71. 

(b) Definitions. The following terms 

used in this section have the meanings 

set forth in this paragraph (b): 

Avian-safe. A power-pole 

configuration designed to minimize 

avian electrocution risk by providing 

sufficient separation between phases 

and between phases and grounds to 

accommodate the wrist-to-wrist or headto-foot distance of the bird. For eagles, 

this is 150 centimeters of horizontal 

separation and 100 centimeters of 

vertical separation. If sufficient 

separation cannot be provided, exposed 

parts that conduct electricity must be 

covered to reduce electrocution risk. If 

covers are used, they must be 

maintained in good condition. For 

conversions from an above-ground line 

to a buried line, the buried portion is 

considered ‘‘avian-safe.’’ For purposes 

of the regulations in this section, 

‘‘avian-safe’’ means safe for eagles. 

Collision response strategy. A plan 

that describes the process the permittee 

will follow to identify whether a 

collision-caused injury or mortality has 

occurred, to evaluate factors that 

contributed to the collision, and to 

implement risk-reduction measures 

commensurate with the collision risk. 

Proactive retrofit strategy. A plan to 

convert existing infrastructure to aviansafe infrastructure within a set timeline. 

The strategy must identify a baseline of 

poles to be proactively retrofit. The 

existing-infrastructure baseline must 

include all poles that are not avian-safe 

for eagles located in areas identified as 

high risk to eagles and may also include 

other poles in the service area. 

Reactive retrofit strategy. A plan to 

respond to incidents where eagles are 

electrocuted or killed. The reactive 

retrofit strategy must include 

information on how eagle electrocutions 

are detected and identified. Determining 

which poles to retrofit must be based on 

the risk to eagles and not on other 

factors (e.g., convenience or cost). The 

pole that caused the electrocution must 

be retrofitted unless the pole is already 

avian-safe. A total of 13 poles or a halfmile segment must be retrofitted, 

whichever is less, prioritizing the 

highest risk poles closest to the 

electrocution event. 

Shooting response strategy. A plan 

that describes the process the permittee 

will follow when eagles are found killed 

or injured near power-line infrastructure 

to identify if shooting is suspected, to 

communicate with law enforcement, 

and to identify and implement 

appropriate shooting reduction 

measures. 

(c) Eligibility for a general permit for 

incidental take. To qualify for a general 

permit, you must meet the requirements 

of § 22.210. 

(d) General permit conditions for 

power lines. Project permittees must: 

(1) Develop a reactive retrofit strategy 

and implement that strategy following 

each discovery of an electrocuted eagle. 

The investigation, documentation, and 

retrofit design selection must be 

completed within 90 days of the 

incident. The retrofit must be 

implemented within 1 year of the 

incident and remain effective for 30 

years. 

(2) Implement a proactive retrofit 

strategy to convert all existinginfrastructure-baseline poles to aviansafe. Retrofits must remain effective for 

30 years. 

(i) Investor-owned utilities must 

retrofit all existing-infrastructurebaseline poles within 50 years. Ten 

percent of baseline poles must be 

converted to avian-safe during each 

permit tenure unless extenuating 

circumstances apply. 

(ii) Non-investor-owned utilities must 

retrofit all existing-infrastructurebaseline poles within 75 years. Seven 

percent of baseline poles must be 

converted to avian-safe during each 

permit tenure unless extenuating 

circumstances apply. 

(3) Implement an eagle collision 

response strategy. Within 90 days of a 

collision, you must complete an 

investigation where the collision 

occurred by documenting the factors 

contributing to the collision and 

identifying appropriate risk-reduction 

measures. You must implement selected 

risk-reduction measures at the location 

of the collision within 1 year of the 

incident. 

(4) Implement an eagle shooting 

response strategy. The strategy must 

include a protocol for immediately 

contacting the Office of Law 

Enforcement (in no case more than 72 

hours from discovery) when finding 

eagle remains or an injured eagle near 

power line infrastructure in 

circumstances that suggest the eagle 

may have been shot. If multiple 

shooting events occur in the service area 

during the permit tenure, the strategy 

should describe and provide for the 

implementation of reasonable shootingreduction measures. 

(5) Train personnel to scan for eagle 

remains when onsite and implement 

internal reporting and recordkeeping 

procedures for discovered eagles. 


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(6) Ensure that all new construction 

and rebuild or replacement of poles in 

areas of high risk for eagles is avian-safe 

unless this requirement would unduly 

impact human health and safety, require 

overly burdensome engineering, or have 

significant adverse effects on biological, 

cultural, or historical resources. 

(7) For new construction and rebuild, 

reconstruction, or replacement projects, 

incorporate information on eagles into 

siting and design considerations. 

Minimize eagle risk by siting away from 

eagle-use areas (e.g., nests and winter 

roosts), accounting for the risk to and 

population status of the species, unless 

this requirement would unduly impact 

human health and safety; require overly 

burdensome engineering; or have 

significant adverse effects on biological, 

cultural, or historical resources. 

(8) Comply with all relevant 

regulations and permit conditions of 

part 21 of this subchapter. 

(9) Submit required reports to the 

Service using Form 3–202–15. 

(10) Pay the required application and 

administration fee as set forth in 

§ 13.11(d)(4) of this subchapter. 

(e) Specific permit for incidental 

take—(1) Eligibility. Any entity 

conducting power line activities that 

meet the requirements of § 22.200 may 

apply for a specific permit. 

(2) Conditions. You must comply with 

the conditions required in § 22.200. 

Your permit conditions will include the 

relevant general-permit conditions from 

paragraph (d) of this section. 

Compensatory mitigation may be 

required when appropriate, including if 

general permit conditions cannot be 

met. 

(f) Tenure of permits. Power line 

general permits are valid for 5 years. 

Specific permits may be valid for up to 

30 years. 

§ 22.280 Permits for disturbance take of 

eagles. 

(a) Purpose. The regulations in this 

section authorize the take of bald eagles 

or golden eagles by disturbance, as 

defined in § 22.6. Apply using Form 3– 

200–91. Permits to authorize 

disturbance associated with hazing 

eagles or eagle nest take are not 

authorized under this section. A permit 

is not required when an activity that 

may ordinarily disturb eagles is ongoing 

at the time an eagle pair initiates nesting 

because the nesting eagles are presumed 

to tolerate the activity. 

(b) Eligibility for a general permit for 

disturbance. To qualify for a general 

permit, you must meet the requirements 

of § 22.210, and your activities must 

comply with the provisions set forth in 

paragraphs (b)(1) through (9) of this 

section. If permanent loss of a territory 

may occur, a specific permit is 

recommended because general permits 

for disturbance do not authorize the 

permanent loss of a territory. General 

permits are not available if the nest is 

located in Indian country (18 U.S.C. 

1151), unless the Tribe is the applicant. 

The following activities are eligible for 

a general permit: 

(1) Building construction and 

maintenance within 660 feet of a bald 

eagle nest. 

(2) Linear infrastructure construction 

and maintenance (e.g., roads, rail, trails, 

power lines, and other utilities) within 

660 feet of a bald eagle nest. 

(3) Alteration of shorelines and water 

bodies (e.g., shorelines, wetlands, docks, 

moorings, marinas, and water 

impoundment) within 660 feet of a bald 

eagle nest. 

(4) Alteration of vegetation (e.g., 

mowing, timber operations, and forestry 

practices) within 660 feet of a bald eagle 

nest. 

(5) Motorized recreation (e.g., 

snowmobiles, motorized watercraft, etc.) 

within 330 feet of an in-use bald eagle 

nest. 

(6) Nonmotorized recreation (e.g., 

hiking, camping, fishing, hunting, 

canoeing, etc.) within 330 feet of an inuse bald eagle nest. 

(7) Aircraft operation (e.g., helicopters 

and fixed-wing aircraft) within 1,000 

feet of an in-use bald eagle nest. 

(8) Prescribed burn operations within 

660 feet of a bald eagle nest. 

(9) Loud, intermittent noises (e.g., 

blasting) within one-half-mile of an inuse bald eagle nest. 

(c) Eligibility for a specific permit for 

disturbance. To qualify for a specific 

permit, you must meet the requirements 

of § 22.200. Specific permits are for 

disturbance of a golden eagle nest, 

disturbance of a bald eagle nest by an 

activity not specified in paragraph (b) of 

this section, or disturbance of eagles 

caused by physical or functional 

elimination of all foraging area within a 

territory. 

(d) Disturbance permit conditions. (1) 

To the maximum degree practicable, 

implement measures to avoid and 

minimize nest disturbance, including 

disturbance due to noise from human 

activities, visibility of human activities, 

proximity of activities to the nest, 

habitat alteration, and any indirect 

stressors. 

(2) Avoid activities that may 

negatively affect the nesting substrate, 

including the survival of the nest tree. 

(3) Monitor in-use nests sufficiently to 

determine whether nestlings have 

fledged from the nest. Include this 

information in your annual report. 

(e) Reporting. You must submit an 

annual report using Form 3–202–15. 

The annual report is due on the date 

specified on your permit or prior to 

requesting renewal of your permit, 

whichever is first. 

(f) Tenure of permits. General permits 

for disturbance issued under the 

regulations in this section are valid for 

a maximum of 1 year. The tenure of 

specific permits for disturbance is set 

forth on the face of the permit and may 

not exceed 5 years. 

§ 22.300 Permits for take of eagle nests. 

(a) Purpose. This section authorizes 

the take of a bald eagle nest or a golden 

eagle nest, including relocation, 

removal, and otherwise temporarily or 

permanently preventing eagles from 

using the nest structure for breeding, 

when there is no practicable alternative 

that would protect the interest to be 

served. Apply using Form 3–200–72. 

(b) Definitions. The following terms 

used in this section have the meanings 

set forth in this paragraph (b): 

Nest take for emergency. Take of an 

in-use or alternate eagle nest when 

necessary to alleviate an existing safety 

emergency for humans or eagles or to 

prevent a rapidly developing situation 

that is likely to result in a safety 

emergency for humans or eagles. 

Nest take for health and safety. Take 

of an eagle nest when the removal is 

necessary to ensure public health and 

safety. Nest take for health and safety is 

limited to in-use nests prior to egg 

laying or alternate nests. 

Nest take for human-engineered 

structure. Take of an eagle nest built on 

a human-engineered structure that 

creates, or is likely to create, a 

functional hazard that renders the 

structure inoperable for its intended 

use. Take is limited to in-use nests prior 

to egg-laying or alternate nests. 

Nest take for species protection. Take 

of an eagle nest when nest removal is 

necessary to protect a species federally 

protected under the Endangered Species 

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

1531–1544) and included on the List of 

Endangered and Threatened Wildlife (at 

§ 17.11 of this subchapter). Take is 

limited to in-use nests prior to egg 

laying or alternate nests. 

Other purposes. Take of an alternate 

eagle nest, provided the take is 

necessary to protect an interest in a 

particular locality and the activity 

necessitating the take or the mitigation 

for the take will, with reasonable 

certainty, provide a net benefit to eagles. 

(c) Eligibility for a general permit for 

nest take. To qualify for a general 

permit, you must meet the requirements 

of § 22.210. 


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(1) General permits are available for 

bald eagle nest take for emergency, nest 

take for health and safety, or nest take 

for a human-engineered structure, or, if 

located in Alaska, other purposes. 

(2) General permits are not available 

for take of golden eagle nests. General 

permits are not available for bald eagle 

nests if removal may result in the 

complete loss of a territory. 

(3) General permits are not available 

if the nest is located in Indian country 

(18 U.S.C. 1151), unless the Tribe is the 

applicant. 

(d) Eligibility for a specific permit for 

nest take. To qualify for a specific 

permit, you must meet the requirements 

of § 22.200. Specific permits are 

required for take of a golden eagle nest 

for any purpose, nest take for species 

protection, and, except in Alaska, nest 

take for other purposes. 

(e) Permits for species protection. If 

you are applying for a nest-take permit 

for species protection, you must: 

(1) Be a Federal, State, or Tribal 

agency responsible for implementing 

actions for the protection of the species 

of concern. 

(2) Include documentation that: 

(i) Describes relevant management 

efforts to protect the species of concern. 

(ii) Identifies and describes how the 

nesting eagles are a limiting factor to 

recovery of the species using the best 

available scientific information and 

data. 

(iii) Explains how take of eagle nests 

is likely to have a positive effect on 

recovery for the species of concern. 

(f) Permit conditions for nest take. 

Permit conditions may include 

requirements to: 

(1) Adjust the timing of your activity 

to minimize the effects of nest take on 

eagles. 

(2) Place an obstruction in the nest or 

nest substrate. 

(3) Minimize or deter renesting 

attempts that would cause the same 

emergency, safety, or functional hazard. 

(4) Relocate the nest or provide 

suitable nesting substrate within the 

same territory. 

(5) Remove chicks or eggs from an inuse nest for immediate transport to a 

foster nest, rehabilitation facility, or as 

otherwise directed by the Service. 

(6) If nestlings or eggs are relocated 

with a nest or to a foster nest, monitor 

the nest to ensure adults are tending to 

nestlings or eggs. 

(7) Monitor the area near the nest 

removal for one or more seasons to 

determine the effect on eagles. 

(8) Submit an annual report using 

Form 3–202–16. 

(g) Tenure of permits. General permits 

issued under this section are valid until 

the start of the next breeding season, not 

to exceed 1 year. The tenure of specific 

permits is set forth on the face of the 

permit and may not exceed 5 years. 

§ 22.75 [Redesignated as § 22.235] 

■ 14. Redesignate § 22.75 as § 22.325 

and transfer to subpart E. 

■ 15. Amend newly designated § 22.325 

by: 

■ a. Revising the section heading; and 

■ b. In the introductory text, removing 

the three sentences that follow the first 

sentence. 

The revision reads as follows: 

§ 22.325 Permits for golden eagle nest 

take for resource recovery operations. 

* * * * * 

§ 22.90 [Redesignated as § 22.400] 

■ 16. Redesignate § 22.90 as § 22.400 

and transfer to subpart E. 

§ 22.400 [Amended] 

■ 17. Amend newly designated § 22.400 

in paragraphs (a) and (b) by removing 

the words ‘‘the effective date of 50 CFR 

22.80’’ and adding in their place the 

words ‘‘November 10, 2009’’. 

Shannon A. Estenoz, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 2024–02182 Filed 2–8–24; 8:45 am] 

BILLING CODE 4333–15–P 


khammond on DSKJM1Z7X2PROD with RULES2