[Federal Register: August 14, 2008 (Volume 73, Number 158)]
[Proposed Rules]               
[Page 47574-47577]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 22

[FWS-R9-MB-2008-0057; 91200-1231-9BPP-L3]
RIN 1018-AV81

Eagle Permits; Take Necessary To Protect Interests in a 
Particular Locality

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; notice of availability of draft environmental 


SUMMARY: We, the U.S. Fish and Wildlife Service (we or us), announce 
the availability of a draft environmental assessment (DEA) evaluating 
options for managing take of bald eagles and golden eagles under the 
Bald and Golden Eagle Protection Act (Eagle Act). The DEA examines the 
effects of the action we proposed in a June 5, 2007 proposed rulemaking 
to establish two new permits under the Eagle Act (72 FR

[[Page 47575]]

31141), and two additional alternatives. We are soliciting current data 
regarding populations of both eagle species for the DEA. We are also 
seeking input regarding criteria to be used in quantifying take that 
occurs at important eagle-use areas, such as foraging areas, communal 
roost sites, or other concentration areas. Further, we are reopening 
the comment period on the proposed rule, which is the preferred 
alternative of the DEA. We have made some revisions and additions to 
the preferred alternative based on public comment received during the 
comment period on the proposed rule. Revisions of a substantive nature 
are noted in the Background section of this notice, and discussed more 
fully in the DEA.

DATES: Send your comments on the DEA and/or proposed rule by September 
15, 2008.

ADDRESSES: We will post the DEA on http://www.fws.gov/migratorybirds/, 
or you may contact the Division of Migratory Birds Management at 4410 
North Fairfax Drive, MS 4107, Arlington, VA 22203-1610. You may submit 
comments by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     U.S. mail or hand-delivery: Public Comments Processing, 
Attn: RIN 1018-AV81; Division of Policy and Directives Management; U.S. 
Fish and Wildlife Service; 4401 N. Fairfax Drive, Suite 222; Arlington, 
VA 22203.
    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Diana Whittington, Division of 
Migratory Bird Management, U.S. Fish and Wildlife Service, at 703-358-


Public Comments

    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. Please note 
that we may not consider comments we receive after the date specified 
in the DATES section in our final determination.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that we will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. 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.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov, or by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Division of Migratory Bird Management, 4501 N. 
Fairfax Drive, 4th Floor, Arlington, VA 22203; telephone (703) 358-


    On June 5, 2007, we published in the Federal Register a proposed 
rule (72 FR 31141) to provide certain authorizations to take bald 
eagles and golden eagles under the Eagle Act (16 U.S.C. 668-668d). The 
rule would establish a permit to authorize take that is associated with 
otherwise-lawful activities but which is not the purpose of the 
activity. In addition to authorizing the impacts of new activities, we 
proposed to use the new permit to extend Eagle Act take authorization 
to take previously exempted from the prohibitions of the Endangered 
Species Act (ESA) (16 U.S.C. 1531 et seq.) under ESA section 7. A 
second type of permit proposed in the rulemaking would authorize 
intentional take of eagle nests in rare cases where their location 
poses a risk to the public welfare or to the eagles themselves. 
Finally, the rule contained a proposed regulatory provision that would 
provide take authorization under the Eagle Act to ESA section 10 
permittees who continue to operate in full compliance with the terms 
and conditions of their existing permits.
    We are finalizing the proposed actions under two separate 
rulemakings. The authorizations associated with extending Eagle Act 
authorization to bald eagle take previously authorized under the ESA 
are categorically excluded from the requirement to prepare an 
environmental assessment under the National Environmental Policy Act 
(NEPA) (42 U.S.C. 4321-4347d) under Departmental procedures. In order 
to have those authorizations available at the earliest practical date, 
we have bifurcated the proposed rule. We are finalizing the ESA-related 
provisions ahead of the subject of the DEA we are releasing today, 
which is the remainder of the proposal.
    We have prepared the DEA under NEPA to analyze alternatives 
associated with the two new permit regulations we proposed in June. In 
the DEA, we considered three alternatives for managing take under the 
Eagle Act.
    Under Alternative 1, we would finalize regulations to extend Eagle 
Act authorization to bald eagle take that is authorized under the ESA, 
but we would not promulgate the additional regulations we proposed to 
(1) authorize take that is associated with, but not the purpose of, an 
action, and (2) authorize nest removal to protect safety and public 
welfare. This is the ``No Action'' alternative because the only action 
that we would finalize is the one we would address in a separate 
rulemaking and is not subject to this environmental assessment.
    Under Alternative 2, in addition to finalizing the actions 
described under Alternative 1, we would promulgate regulations for both 
of the proposed permits, but permits to authorize take that is 
associated with, but not the purpose of, an action would be limited to 
disturbance. No other forms of take would be authorized. We could 
authorize programmatic disturbance and nest take if the permittee 
implements advanced conservation practices (see discussion below).
    Alternative 3 is the proposed action, with modifications, and the 
preferred alternative. Alternative 3 includes all elements of 
Alternative 2, with the addition that take that results in mortalities 
could also be authorized. Based on public comment received on the June 
5, 2007, proposed rule, and on new information compiled through the 
process of drafting the DEA, we have made some modifications to the 
preferred alternative. In addition to a variety of minor revisions, 
Alternative 3 contains the following additions and changes to the 
proposed rule:
     As discussed above, we split the rule into two rules that 
we will finalize separately from one another. We separated the original 
proposal to extend (or ``grandfather'') Eagle Act take authorization to 
take previously authorized under the ESA from the remainder of the 
provisions in order to finalize the ``grandfathering'' provisions more 
     We modified our interpretation (provided in the June 5, 
2007, proposed rule) of the statutory mandate that permitted take be 
``compatible with the preservation of the bald eagle or the golden 
eagle.'' In the original proposal, we proposed to use the standard that 
regional and national eagle populations not decline at a rate greater 
than 0.54% annually. Our preferred alternative now requires increasing 
or stable regional populations to meet the ``preservation'' standard.

[[Page 47576]]

     The rule would include issuance criteria to ensure that, 
except for safety emergencies, Native American religious needs are 
given first priority if requests for permits exceed take thresholds 
that are compatible with the preservation of the bald eagle or the 
golden eagle.
     The rule would no longer provide different issuance 
criteria for lethal versus non-lethal take. Rather, it proposes 
separate provisions for programmatic take versus individual instances 
of take. Programmatic take (take that is recurring and not in a 
specific, identifiable timeframe and/or location) would be authorized 
only where it is unavoidable despite implementation of comprehensive 
measures (``advanced conservation practices'') developed in cooperation 
with the Service to reduce the take below current levels. ``Advanced 
conservation practices'' refers to scientifically-supportable measures 
representing the best available techniques designed to reduce 
disturbance and ongoing mortalities to a level where remaining take is 
     The rule would amend the existing eagle depredation permit 
regulations at 50 CFR 22.23 to extend permit tenure beyond 90 days for 
purposes of hazing eagles. The purpose of these revisions would be to 
enable issuance of permits that combine programmatic authorizations 
provided under Sec.  22.23 and the new proposed take regulations (e.g., 
for airport safety purposes).
     The rule would expand (from the proposed rule) the 
purposes for which eagle nests may be taken to include where necessary 
to protect public health and welfare. The proposed rule limited nest 
removal to emergencies where human or eagle safety was imminently 
threatened. Nest removal for emergencies would be retained, and would 
authorize the removal and/or relocation of active and inactive nests 
where genuine safety concerns necessitate their removal. The broader 
application would allow us to issue permits to remove only inactive 
nests in some circumstances where the presence of the nest does not 
immediately threaten injury or loss of life, but does interfere with 
maintenance or expansion of infrastructure needed to protect overall 
public health and welfare. An example of the broader application would 
be a site in an underserved community where a new hospital is to be 
built, where the building was designed to avoid three eagle nests in a 
territory, but as construction is set to begin, eagles build a new nest 
in the only remaining available building site. In this situation 
(depending on consideration of any other relevant factors), take of the 
nest may be considered necessary to protect public health and welfare, 
even though take is not necessary to alleviate an immediate safety 
    In such situations, where the take of an inactive nest is necessary 
to protect public health and welfare, but not to alleviate an immediate 
threat to safety, two additional criteria must be met before we may 
issue a nest take permit under this section. First, we may not issue 
the permit unless alternative suitable nesting and foraging habitat is 
available. Second, the permittee will be required to mitigate for the 
detrimental impacts to eagles to the fullest extent practicable.
     We propose to redefine some terms and introduce new 
definitions for a number of additional terms used in the regulations, 
as follows:
    We would define ``eagle nest'' as a ``readily identifiable 
structure built, maintained, or used by bald eagles or golden eagles 
for breeding purposes.'' This definition is based on, and replaces, the 
existing golden eagle nest definition, in order to apply to both 
species. We would remove the existing definition of ``golden eagle 
nest'' from the list of definitions. Similarly, we would replace the 
old definition of ``inactive nest'' with a new definition that also 
includes bald eagles as well as golden eagles. The new definition would 
read: ``a bald eagle or golden eagle nest that is not currently being 
used by eagles as determined by the absence of any adult, egg, or 
dependent young at the nest for 10 consecutive days. An inactive nest 
may become active again and remains protected under the Eagle Act.''
    The proposed permit regulations under Sec.  22.26 introduced the 
term ``important eagle-use area'' to refer to nests, biologically 
important foraging areas, and communal roosts, where eagles are 
potentially likely to be taken as the result of interference with 
breeding, feeding, or sheltering behaviors. We now propose to define 
``important eagle-use area'' as ``an eagle nest, foraging area, or 
communal roost site that eagles rely on for breeding, sheltering, or 
feeding, and the landscape features surrounding such nest, foraging 
area, or roost site that are essential for the continued viability of 
the site for breeding, feeding, or sheltering eagles.'' This term 
refers to the particular areas, within a broader area where human 
activity occurs, where eagles are more likely to be taken (e.g., 
disturbed) by the activity because of the higher probability of 
interference with breeding, feeding, or sheltering behaviors at those 
    We are also proposing to define terms used within the definition of 
``important eagle-use area.'' We would define ``foraging area'' to mean 
``an area where eagles regularly feed during one or more seasons.'' We 
would define ``communal roost site'' as ``an area where eagles gather 
repeatedly in the course of a season and shelter overnight and 
sometimes during the day in the event of inclement weather.'' Not all 
foraging areas and communal roost sites are important enough that 
interfering with eagles at the site will cause disturbance (resulting 
in injury or nest abandonment.) Whether eagles rely on a particular 
foraging area or communal roost site to that degree will depend on a 
variety of circumstances, most obviously, the availability of alternate 
sites for feeding or sheltering.
    ``Territory'' would be defined as ``a defended area that contains, 
or historically contained, one or more nests within the home range of a 
mated pair of eagles, and where no more than one pair breeds at a 
    ``Cumulative effects'' would mean ``the incremental environmental 
impact or effect of the proposed action, together with impacts of past, 
present, and reasonably foreseeable future actions.''
    We would define ``indirect effects'' as ``effects that are caused 
by an action and which may occur later in time or be located beyond the 
initial impacts of the action, but are still reasonably foreseeable.''
    The preferred alternative continues to include the requirement that 
an applicant avoid and minimize impacts to eagles to the maximum extent 
practicable, and document the existing measures in their application 
for a permit. ``Practicable'' would be defined as ``capable of being 
done after taking into consideration, relative to the magnitude of the 
impacts to eagles, (1) the cost of remedy comparative with proponent 
resources; (2) existing technology; and (3) logistics in light of 
overall project purposes.''
    An additional provision that would be included in the final rule to 
implement our preferred alternative pertains to the authorizations 
granted through the other final rulemaking (to extend Eagle Act 
authorization to take authorized under the ESA) that we separated from 
the action for which this environmental assessment is being carried 
out. Under the preferred alternative, the final regulations to 
establish a new permit for take of eagles where the take is associated 
with, but not the purpose of, the activity would include a provision 
that applies to anyone granted take

[[Page 47577]]

exemptions under section 7 of the ESA. This would apply in areas where 
the bald eagle remains listed or is re-listed under the ESA or if the 
golden eagle becomes listed. Of those persons, those who are issued 
their section 7 exemptions whose activities will also take eagles under 
the Eagle Act, and who wish to obtain Eagle Act authorization for that 
take, would be required to use the new permit regulations at 50 CFR 
22.26 that are the subject of this DEA, once those regulations are 
available, rather than the expedited permit being established under 
separate regulations.

    Authority: The authority for this action is the Bald and Golden 
Eagle Protection Act (16 U.S.C. 668-668d).

    Dated: July 28, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-18779 Filed 8-13-08; 8:45 am]