51094 Federal Register / Vol. 86, No. 175 / Tuesday, September 14, 2021 / Proposed Rules 

Federal Register announcing updates. 

Finally, NHTSA will post a video of the 

hearing at http://www.nhtsa.gov/cafe 

and will make a transcript of the hearing 

available in the rulemaking docket as 

soon as practicable. 

How can I get copies of the proposed 

action, the Draft Supplemental 

Environmental Impact Statement, and 

other related information? 

NHTSA has established a docket for 

the proposal under Docket ID No. 

NHTSA–2021–0053 and a separate 

docket for the Draft SEIS at Docket ID 

No. NHTSA–2021–0054. Relevant 

documents and information can also be 

accessed at NHTSA’s CAFE website, at 

https://www.nhtsa.gov/cafe. Please refer 

to the notice of proposed rulemaking for 

detailed information on accessing 

information related to the proposal and 

the Draft SEIS. 

Issued on September 9, 2021, in 

Washington, DC, under authority delegated 

in 49 CFR 1.95. 

Raymond R. Posten, 

Associate Administrator for Rulemaking. 

[FR Doc. 2021–19799 Filed 9–10–21; 11:15 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 22 

[Docket No. FWS–HQ–MB–2020–0023; 

FF09M2200–212–FXMB12320900000] 

RIN 1018–BE70 

Eagle Permits; Incidental Take 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Advance notice of proposed 

rulemaking; request for comments. 

SUMMARY: The U.S. Fish and Wildlife 

Service (Service, or we) seeks public 

and regulated-community input on 

potential approaches for further 

expediting and simplifying the permit 

process authorizing incidental take of 

eagles. This document also advises the 

public that the Service may, as a result 

of public input, prepare a draft 

environmental review pursuant to the 

National Environmental Policy Act of 

1969, as amended. We are furnishing 

this advance notice of proposed 

rulemaking to advise other agencies and 

the public of our intentions and obtain 

suggestions and information on the 

scope of issues to include in the 

environmental review. Public and 

regulated community responses will be 

used to improve and make more 

efficient the permitting process for 

incidental take of eagles in a manner 

that is compatible with the preservation 

of bald and golden eagles. 

DATES: You may submit comments on or 

before October 29, 2021. We will 

consider all comments on this advance 

notice of proposed rulemaking, 

including the scope of the draft 

environmental review, that are received 

or postmarked by that date. Comments 

received or postmarked after that date 

will be considered to the extent 

practicable. 

ADDRESSES: You may submit written 

comments by one of the following 

methods: 

Electronically: Go to the Federal 

e-Rulemaking Portal: http://

www.regulations.gov. Search for FWS– 

HQ–MB–2020–0023, which is the 

docket number for this document, and 

follow the directions for submitting 

comments. 

By hard copy: Submit by U.S. mail to: 

Public Comments Processing, Attn: 

FWS–HQ–MB–2020–0023, U.S. Fish 

and Wildlife Service, MS: PRB/3W, 

5275 Leesburg Pike, Falls Church, VA 

22041–3803. 

We request that you send comments 

by only one of the methods described 

above. We will post all information 

received on http://www.regulations.gov. 

This generally means that we will post 

any personal information you provide 

us (see Public Availability of Comments, 

below, for more information). 

FOR FURTHER INFORMATION CONTACT: 

Jerome Ford, Assistant Director, 

Migratory Birds, at 202–208–1050. 

Individuals who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: This 

advance notice of proposed rulemaking 

seeks comment on several approaches 

that could potentially underpin a more 

streamlined eagle incidental-takepermitting framework that we first 

established in 2009. Specifically, the 

Service is interested in comments 

clarifying specific aspects of the current 

permitting process that hinder permit 

application, processing, or 

implementation. The Service is also 

seeking recommendations for additional 

guidance the Service could develop that 

would reduce the time and/or cost 

associated with applying for and 

implementing long-term, eagle 

incidental take permits under existing 

regulations. The Service further invites 

recommendations for targeted revisions 

that could be made to existing 

regulations consistent with the overall 

permitting framework that would 

reduce the time and/or cost associated 

with applying for and processing longterm permits for incidental take of 

eagles. Finally, the Service is interested 

in comments regarding potential new 

regulatory approaches to authorizing 

incidental take under the Eagle Act, 

particularly for projects that can be 

shown in advance to have minimal 

impacts on eagles, that would reduce 

the time and/or cost associated with 

applying for and operating under longterm permits for the incidental take of 

eagles. 

I. Background 

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. Service regulations in title 

50 of the Code of Federal Regulations, 

consistent with the Eagle Act (16 U.S.C. 

668c), define ‘‘take’’ as to pursue, shoot, 

shoot at, poison, wound, kill, capture, 

trap, collect, destroy, molest, or disturb 

(50 CFR 22.3). The Eagle Act authorizes 

the Secretary of the Interior to issue 

regulations to permit the taking of eagles 

for various purposes, provided the 

taking is compatible with the 

preservation of the bald eagle or the 

golden eagle. Regulations at 50 CFR 22.3 

define ‘‘compatible with the 

preservation of the bald eagle or the 

golden eagle’’ as ‘‘consistent with the 

goals of maintaining stable or increasing 

breeding populations in all eagle 

management units [EMUs] and the 

persistence of local populations 

throughout the geographic range of each 

species.’’ Permits for the incidental, or 

unintentional, take of eagles were 

established in 2009 (74 FR 46877, Sep. 

11) to authorize incidental take of bald 

and golden eagles that results from a 

broad spectrum of activities, such as 

utility infrastructure, energy 

development, construction, operation of 

airports, and resource recovery (50 CFR 

22.26). 

In 2016, the Service published a final 

rule (81 FR 91494, Dec. 16, 2016) 

revising the regulations to lengthen the 

maximum permit tenure from 5 years to 

30 years and require a review of permit 

implementation periodically throughout 

the lifetime of the permit at intervals no 

longer than 5 years. For most projects, 

the Service assumes the actual take at a 

project will be less than the level of take 

initially authorized under a permit, 

which will result in a reduction in 

required offsetting mitigation measures 

over time. This is because initial 

estimates of eagle fatalities are 

purposely conservative to reduce the 

likelihood of a permittee exceeding their 

authorized level of take, and to ensure 


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Federal Register / Vol. 86, No. 175 / Tuesday, September 14, 2021 / Proposed Rules 51095 

the Service does not exceed the EMU 

take limits. The 2016 regulations also 

require specific methods for 

preconstruction eagle surveys and 

fatality modeling for wind-energy 

facilities, the industry with the largest 

demand for long-term, incidental take 

eagle permits. 

The 2016 regulations provide uniform 

standards for offsetting take of eagles 

when authorized take would exceed the 

sustainable take rate determined by the 

Service. To preserve bald and golden 

eagles, the Service surveys eagle 

populations, estimates population 

levels, and estimates the level of take, or 

mortality, each population can 

withstand without significantly 

declining. When the sustainable take 

rate is predicted to be exceeded by a 

permitted project, the regulations 

require the permittee to offset excess 

authorized take by reducing another 

form of mortality to eagles or increasing 

the carrying capacity of the population. 

The standards apply whether the 

offsetting mitigation is achieved via 

direct implementation by the permittee, 

an in-lieu fee program, or a mitigation 

bank. The Service has approved two 

privately developed in-lieu fee programs 

and is working with other entities to 

make additional third-party mitigation 

programs available to simplify the 

permit process for permittees. 

In conjunction with revising the 

permit regulations in 2016, the Service 

prepared a comprehensive 

programmatic environmental impact 

statement (PEIS) that analyzed the 

Service’s overall permitting program for 

eagles. The PEIS established the 

sustainable take limits described above 

for both species of eagle and evaluated 

the effects of programmatically issuing 

permits within those take limits under 

the conditions included in the 

regulations. The Service determined 

that bald eagles could sustain additional 

mortality and established a nationwide 

sustainable take limit of 7,500 

individuals per year. In contrast, given 

the status of the North American golden 

eagle population, the Service concluded 

that no additional mortality could be 

authorized without risking population 

declines. Therefore, additional take 

would not be consistent with the eagle 

preservation standard required by the 

Eagle Act. To remedy this issue, all new 

take of golden eagles authorized under 

permit must be offset by conservation 

measures that will reduce another form 

of ongoing mortality or enhance 

population numbers to a commensurate 

degree. 

Because the PEIS analyzed the 

cumulative impacts of permitting up to 

the established sustainable take levels, 

the Service is able to tier environmental 

analyses required under the National 

Environmental Policy Act (NEPA; 42 

U.S.C. 4321 et seq.) from the PEIS, 

enabling the Service to significantly 

accelerate the permitting process for 

complex, long-term projects, such as 

wind-energy facilities, while continuing 

to preserve eagles consistent with the 

Eagle Act. 

At the same time, human 

development and infrastructure 

continue to increase in the United 

States, and bald eagle populations 

continue to grow throughout their range. 

The result of these trends is an 

increasing number of interactions 

between eagles and industrial 

infrastructure and a corresponding need 

for the Service to process more 

applications for incidental take of 

eagles. The Service and the regulated 

community share an interest in 

introducing further efficiencies into the 

eagle incidental-take-permitting process 

to meet this demand, while preserving 

bald and golden eagles pursuant to the 

Eagle Act. 

II. Action Requested From the Public 

We seek comments or suggestions 

from the public, governmental agencies, 

Tribes, the scientific community, 

industry, or any other interested parties. 

Should the Service promulgate a 

proposed rule and prepare a draft 

environmental review pursuant to 

NEPA, we will take into consideration 

all comments and any additional 

information received. The Service will 

act as the lead Federal agency 

responsible for completion of any 

environmental review resulting from 

this notice. To ensure that any proposed 

rulemaking effectively evaluates all 

potential issues and impacts, this 

document seeks the public’s and 

regulated community’s input on what 

changes could be made to the Service’s 

eagle incidental-take-permitting 

program (50 CFR 22.26) to make the 

permitting process more efficient and 

effective. Any input should be 

consistent with statutory provisions of 

the Eagle Act and compatible with the 

preservation of eagles. The Service 

recommends that anyone planning to 

provide input first review the Service’s 

2016 rulemaking (81 FR 91494, Dec. 16, 

2016) and the PEIS discussed above; 

both documents are available on http:// 

www.regulations.gov under Docket No. 

FWS–HQ–MB–2020–0023 (https://

www.regulations.gov/docket/FWS-HQMB-2020-0023/document). 

The Service is interested in the 

public’s and regulated community’s 

responses to the following questions: 

1. Are there specific protocols, 

processes, requirements, or other 

aspects of the current permitting process 

for incidental take of eagles that hinder 

permit application, processing, or 

implementation? 

As an example, the Service has heard 

from some companies that the 

requirement that monitoring under longterm permits be carried out by 

independent third parties is not feasible 

or is prohibitively expensive. 

Additional details on these costs, 

including circumstances that increase 

third-party-monitoring costs, would be 

helpful. 

2. What additional guidance, 

protocols, analyses, tools, or other 

efficiencies could the Service develop 

that would reduce the time and/or cost 

associated with applying for, 

implementing, and conducting 

monitoring associated with long-term 

permits for incidental take of eagles 

under existing regulations? What are the 

estimated costs of the suggested 

additional efficiencies, and how do 

those costs compare to industry’s 

current practices? 

The Service is currently working on 

guidance for fatality monitoring at 

wind-energy facilities, standards for 

using power-pole retrofits as offsetting 

mitigation, revised protocols for 

minimizing disturbance of nesting bald 

eagles, golden eagle nest-buffer 

guidance, and reduced or morestreamlined permitting requirements in 

areas where the risk of take is low. We 

seek input on any additional tools and 

guidance the Service could develop to 

improve the permitting process. 

One concept the Service is 

considering that will potentially reduce 

required monitoring costs under the 

existing regulations is ‘‘pooled’’ postconstruction monitoring of a selected 

subset of permitted projects. The 

Service could explore creation of an 

opportunity for permitted facilities to 

contribute funding the Service would 

use to direct post-construction 

monitoring across participating projects. 

Such a program would work by 

implementing monitoring in a 

systematic, stratified fashion across 

participating projects, eliminating the 

need for each project to implement a 

stand-alone third-party monitoring 

program yet still satisfying the 

permittee’s post-construction 

monitoring requirements. We are 

seeking feedback on the concept of 

pooled monitoring; in particular: 

• Would prospective eagle incidental 

take permittees take advantage of this 

opportunity? 

• If so, how important are the 

tradeoffs between the cost of pooled 


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51096 Federal Register / Vol. 86, No. 175 / Tuesday, September 14, 2021 / Proposed Rules 

monitoring and obtaining projectspecific fatality estimates? 

• Is monitoring at a randomly 

selected subset of projects an acceptable 

alternative to monitoring at every 

project from the standpoint of ensuring 

the permit program is reasonably 

protective of bald and golden eagle 

populations? 

3. What targeted revisions could be 

made to existing regulations consistent 

with the overall permitting framework 

and PEIS that would reduce the time 

and/or cost associated with applying for 

and processing long-term permits for 

incidental take of eagles? 

4. Are there potential new regulatory 

approaches to authorizing incidental 

take under the Eagle Act, particularly 

for projects that can be shown in 

advance to have minimal impacts on 

eagles, that would reduce the time and/ 

or cost associated with applying for and 

operating under long-term permits for 

incidental take of eagles? 

For example, we have received 

proposals for a new, regulatory 

approach to further streamline the 

permitting process for incidental take of 

eagles by establishing a ‘‘nationwide’’ or 

‘‘general’’ permit program similar to the 

U.S. Army Corps of Engineers (USACE) 

Nationwide Permit Program (NWP 

program) for authorizing impacts to 

wetlands and other waters of the United 

States. Those permits can provide 

expedited or even eliminate review of 

proposed activities that have only 

minimal individual and cumulative 

adverse environmental effects. 

The USACE system for analyzing the 

environmental effects of its NWP 

program is much more complex and 

resource-intensive than the Service’s 

current eagle permitting framework 

under the 2016 PEIS. The USACE uses 

a three-tiered approach in administering 

its NWP program, and ensuring that 

activities authorized by NWPs have no 

more than minimal individual and 

cumulative adverse environmental 

effects. For applicants under the 

majority of NWPs that require 

preconstruction notification, the data 

requirements entailed in completing the 

preconstruction notification are not 

insubstantial. Applicants must provide 

detailed information regarding proposed 

activities, their potential impacts, 

avoidance and minimization measures, 

and compensatory-mitigation 

commitments. Considering the 

complexity of the USACE program, we 

seek further input as to which aspects 

of the NWP program industry and the 

public are most interested in the Service 

emulating in our eagle-permitting 

program, as well as those aspects not 

recommended. 

A fundamental principle of the 

USACE nationwide permit program is 

that it is available only to activities that 

will have minimal impacts both 

individually and cumulatively. The 

concept of a general permit for 

incidental take of eagles could, in 

theory, similarly apply only to 

situations with minimal potential 

adverse effects on eagle populations, 

individually and cumulatively. Unlike 

wetland acreage lost under a USACE 

nationwide permit which can be 

monitored once to assess loss, obtaining 

a reasonably accurate estimate of eagle 

incidental take requires systematic 

monitoring of project impacts throughtime. A challenge for adopting the 

general permit concept for eagle 

incidental take permits is the 

uncertainty over the actual effects of 

such permits, individually and 

cumulatively, on eagle populations. 

To reduce this level of uncertainty, 

the Service has required permitted 

facilities to implement monitoring 

protocols at a level sufficient to generate 

a reasonably reliable estimate of the 

actual take caused by the facility. To 

reduce the cost to industry as well as 

manage impacts to eagles (prior to 

accounting for offsetting mitigation 

measures), the Service could limit 

general permits to geographic areas with 

relatively lower numbers of eagles and 

require a reduced monitoring effort. 

Monitoring could be designed purely to 

detect whether eagle take is below a 

certain level, rather than to arrive at a 

reasonable estimate of the actual take 

level. We estimate the average 

monitoring burden to achieve this 

standard would be reduced by 50 

percent from current requirements. The 

Service has developed maps of relative 

abundance of both species of eagle 

across the coterminous United States 

using a variety of datasets (see RuizGutierrez et al., 2021 and https://

www.fws.gov/migratorybirds/pdf/ 

management/Lowriskwebex.ppsx), 

These maps could serve as the basis for 

where general permits would be 

available. Comparing data from the U.S. 

Geological Survey wind-turbine 

database (Hoen et al. 2018), it appears 

that approximately 40 percent of 

existing wind-energy facilities would 

fall into areas the Service would 

consider low risk based on relative 

numbers of both species of eagles. We 

encourage feedback on the concept of a 

general permit that would be available 

in areas of relatively low eagle 

abundance and that would still include 

systematic monitoring, but at a reduced 

level, and whether companies would 

seek to obtain such permits. We also 

seek feedback on how a general permit 

would impact small businesses and 

whether it would result in cost savings 

compared to the current permit process. 

An alternative option would be to 

restrict general permits to projects 

seeking authorization only for take of 

bald eagles and not golden eagles. 

Available data indicate that bald-eagle 

populations are continuing to expand 

throughout their range. Therefore, a 

permitting scheme with some decrease 

in the level of certainty as to actual 

effects on bald eagles might be justified 

to reduce the burden on the regulated 

community. A significant complicating 

factor to consider, however, is the 

likelihood that a project authorized 

under a general permit to take bald 

eagles may also incidentally take golden 

eagles. 

Another concept for a streamlined 

general permit would be to eliminate 

systematic monitoring. Tracking eagle 

take would consist of permittees 

reporting all mortalities discovered 

opportunistically during normal 

operations and maintenance activities, 

but there would be no systematic 

fatality monitoring under a scientifically 

rigorous protocol. As described above, 

the take levels on these permits would 

need to be substantially higher than the 

level of take reported to account for the 

uncertainty regarding the actual take 

level of the permitted activity. We 

estimate that the probability of finding 

a dead eagle, if one has been killed, 

given the level of opportunistic 

monitoring at a typical wind energy 

facility, is approximately 10 to 15 

percent. Even at the higher end of this 

range, with a 15 percent probability of 

detecting a dead eagle, the opportunistic 

finding of one eagle over any time 

period would result in a fatality 

estimate of approximately 10 eagles, 

with an 80 percent uncertainty range 

(credible interval) of from 1 to 15 dead 

eagles. Cumulatively, over many such 

permitted facilities, the uncertainty 

regarding actual take would be 

compounded. For example, if the 

Service permitted 10 such separate 

facilities, each with one eagle fatality 

found over the first 5 years, we could 

only be relatively certain that actual 

fatalities at those projects combined did 

not exceed 150 eagles over the 5-year 

period. 


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Federal Register / Vol. 86, No. 175 / Tuesday, September 14, 2021 / Proposed Rules 51097 

This approach would introduce 

uncertainties into take estimates, 

requiring higher levels of authorized 

take, which would in turn necessitate 

more offsetting mitigation and affect 

overall take limits at the local area and 

EMU scales. Currently, the U.S. Fish 

and Wildlife Service has only approved 

retrofitting of power lines to avoid 

electrocution as a compensatory 

mitigation measure in permits that have 

been issued, and this form of mitigation 

can cost greater than $30,000 per 

individual eagle replaced (Hosterman 

and Lane 2017). 

We welcome feedback on the topics 

described above and how some of the 

issues raised might be resolved. In 

addition, we would appreciate hearing 

from the public about other alternative 

proposals for how the Service could 

develop and administer a general permit 

program for incidental take of eagles 

that will, with reasonable certainty, 

protect eagles consistent with the Eagle 

Act. 

It is the policy of the Department of 

the Interior to recognize and fulfill its 

legal obligations to identify, protect, and 

conserve the trust resources of federally 

recognized Indian Tribes and Tribal 

members, and to consult with Tribes on 

a government-to-government basis 

whenever plans or actions affect Tribal 

trust resources, trust assets, or tribal 

health and safety. This policy draws 

from the President’s memorandum of 

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

American Tribal Governments’’ (59 FR 

22951), Executive Order 13175 

‘‘Consultation and Coordination with 

Indian Tribal Governments,’’ and the 

Department of the Interior Manual at 

512 DM 4. These documents confirm 

our trust responsibilities to Tribes, 

recognize that Tribes have sovereign 

authority to control Tribal lands, 

emphasize the importance of developing 

partnerships with Tribal governments, 

and direct the Services to consult with 

Tribes on a government-to-government 

basis. Relative to our considerations for 

improving the permitting process for 

incidental take of eagles, we request 

comments that clarify appropriate 

consideration of Tribal sovereignty, 

including any agreements in which 

Tribes may choose to participate in 

consultation. 

5. We are seeking data to estimate the 

current industry costs on preapplication/pre-construction surveys for 

eagles, monitoring requirements of the 

permit itself, including paying for 

required third party monitors, and 

compensatory mitigation. We are 

seeking data on how costs will change 

if additional efficiencies are 

implemented. We are also requesting 

the submission of data regarding the 

number and type of small businesses 

affected, the scale and nature of 

economic effects in the current 

permitting process, and how costs 

would change for small businesses if 

additional efficiencies are implemented. 

Literature Cited 

Hoen, B.D., Diffendorfer, J.E., Rand, J.T., 

Kramer, L.A., Garrity, C.P., and Hunt, 

H.E., 2018, United States Wind Turbine 

Database (ver. 2.3, January 2020): U.S. 

Geological Survey, American Wind 

Energy Association, and Lawrence 

Berkeley National Laboratory data 

release, https://doi.org/10.5066/F7T

X3DN0. 

Hosterman, H., Lane, D., 2017. Proxies for the 

market value of bald and golden eagles: 

Final report (Contract Report to U.S. Fish 

and Wildlife Service No. F14PA000019). 

Abt Associates, Portland, OR. 

Ruiz-Gutierrez, V., E.R. Bjerre, M.C. Otto, G. 

S. Zimmerman, B.A. Millsap, D. Fink, 

E.F. Stuber, M. Strimas-Mackey, and O.J. 

Robinson. 2021. A pathway for citizen 

science data to inform policy: A case 

study using EBIRD data for defining 

low-risk collision areas for wind energy 

development. Journal of Applied Ecology 

58:1104–1111. 

Public Availability of Comments 

Written comments the Service 

receives become part of the public 

record associated with this action. 

Comments and materials we receive, as 

well as supporting documentation we 

used in preparing this document, will 

be available for public inspection on 

http://www.regulations.gov. Before 

including your address, phone number, 

email address, or other personal 

identifying information in your 

comment, you should be aware that the 

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. All submissions from 

organizations or businesses, and from 

individuals identifying themselves as 

representatives or officials of 

organizations or businesses, will be 

made available for public disclosure in 

their entirety. 

Signing Authority 

The Assistant Secretary for Fish and 

Wildlife and Parks approved this 

document and authorized the 

undersigned to sign and submit the 

document to the Office of the Federal 

Register for publication electronically as 

an official document of the Department 

of the Interior. Shannon Estenoz, 

Assistant Secretary for Fish and Wildlife 

and Parks, approved this document on 

September 1, 2021, for publication. 

Maureen D. Foster, 

Chief of Staff, Office of the Assistant Secretary 

for Fish and Wildlife and Parks. 

[FR Doc. 2021–19717 Filed 9–13–21; 8:45 am] 

BILLING CODE 4333–15–P 


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