[Federal Register Volume 77, Number 72 (Friday, April 13, 2012)]
[Proposed Rules]
[Pages 22278-22280]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8087]



Fish and Wildlife Service

50 CFR Part 22

[Docket No. FWS-R9-MB-2011-0094: 91200-1231-9BPP]
RIN 1018-AY30

Eagle Permits; Revisions to Regulations Governing Take Necessary 
To Protect Interests in Particular Localities

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Advance notice of proposed rulemaking.


SUMMARY: We solicit public comment on possible revisions to regulations 
under the Bald and Golden Eagle Protection Act for permits to take 
eagles where the take is associated with, but not the purpose of, 
otherwise lawful activities. During the 2 years that the regulations 
have been in effect, some stakeholders have expressed concerns with 
some provisions of the rule. We are giving interested members of the 
public the opportunity to review the regulations and recommend 
revisions that would create a more efficient permit process

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while continuing to adequately protect eagles.

DATES: We will accept comments received or postmarked by the end of the 
day on July 12, 2012.

ADDRESSES: You may submit comments by either one of the following 
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket No. FWS-R9-
     U.S. mail or hand delivery: Public Comments Processing, 
Attention: FWS-R9-MB-2011-0094; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive, 
MS 2042-PDM; Arlington, VA 22203-1610.
    We will not accept email or faxes. We will not consider comments 
submitted after the due date. We will post all comments on http://www.regulations.gov. This generally means that we will post any 
personal information that you provide. See the Public Comments section 
below for more information.

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


Public Comments

    We request comments and suggestions and encourage the submission of 
new ideas, materials, recommendations, and arguments from the public; 
ornithological organizations; environmental organizations; 
corporations; local, State, tribal, and Federal agencies; and any other 
interested party. Please ensure that the comments pertain only to the 
issues presented in this advance notice of proposed rulemaking.
    You may submit your comments and supporting materials only by one 
of the methods listed in ADDRESSES. We will not consider comments sent 
by email or fax, or written comments sent to an address other than the 
one listed in ADDRESSES.
    If you submit a comment via http://www.regulations.gov, your entire 
comment--including any personal identifying information--will be posted 
on the Web site. If you submit a hardcopy comment that includes 
personal identifying information, you may request that we withhold this 
information from public review, but we cannot guarantee that we will be 
able to do so. We will post all hardcopy comments on http://www.regulations.gov.
    Comments and materials we receive will be available for public 
inspection at http://www.regulations.gov, or by appointment, during 
normal business hours, at the U.S. Fish and Wildlife Service (see FOR 


    The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) 
(Eagle Act) prohibits take of bald eagles and golden eagles except 
pursuant to Federal regulations. The Eagle Act regulations at title 50, 
part 22, of the Code of Federal Regulations (CFR), define the ``take'' 
of an eagle to include the following broad range of actions: ``pursue, 
shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, 
molest, or disturb'' (50 CFR 22.3). The Eagle Act allows the Secretary 
of the Interior to authorize certain otherwise prohibited activities 
through regulations. The Secretary is authorized to prescribe 
regulations permitting the ``taking, possession, and transportation of 
[bald eagles or golden eagles] * * * for the scientific or exhibition 
purposes of public museums, scientific societies, and zoological parks, 
or for the religious purposes of Indian tribes, or * * * for the 
protection of wildlife or of agricultural or other interests in any 
particular locality,'' provided such permits are ``compatible with the 
preservation of the bald eagle or the golden eagle'' (16 U.S.C. 668a).
    On September 11, 2009, we published a final rule that established 
new permit regulations under the Bald and Golden Eagle Protection Act 
for nonpurposeful take of eagles (74 FR 46836). Those regulations at 50 
CFR 22.26 provide for permits to take bald eagles and golden eagles 
where the taking is associated with, but not the purpose of, an 
activity. The regulations provide for both standard permits and 
programmatic permits. Standard permits authorize individual instances 
of take that cannot practicably be avoided. Programmatic permits 
authorize recurring take that is unavoidable even after implementation 
of advanced conservation practices.
    ``Programmatic take'' is defined at 50 CFR 22.3 as ``take that is 
recurring, is not caused solely by indirect effects, and that occurs 
over the long term or in a location or locations that cannot be 
specifically identified.'' This definition distinguishes programmatic 
take from any other take that has indirect effects that continue to 
cause take after the initial action. We can issue programmatic permits 
for disturbance, as well as take resulting in mortalities, based on 
implementation of ``advanced conservation practices'' developed in 
coordination with the Service. ``Advanced conservation practices'' 
(ACPs) are defined at 50 CFR 22.3 as ``scientifically supportable 
measures that are approved by the Service and represent the best 
available techniques to reduce eagle disturbance and ongoing 
mortalities to a level where remaining take is unavoidable.'' Most take 
authorized under Sec.  22.26 has been in the form of disturbance; 
however, permits may authorize lethal take that is incidental to an 
otherwise lawful activity, such as mortalities caused by collisions 
with rotating wind turbines. Since publication of the 2009 final rule, 
the Service has issued approximately 50 permits under the new 
regulations. However, we have not yet issued any programmatic permits.
    In a separate action, [Docket No. FWS-R9-MB-2011-0054] we are 
proposing revisions to the regulations to extend the maximum term for 
programmatic permits up to 30 years, incorporating additional adaptive 
conservation measures if necessary to ensure the preservation of 
eagles. As part of that action, we are also proposing to modify the 
application fee structure for programmatic permits. Because those 
proposed regulations are a separate action from this notice, we are not 
soliciting, and will not consider, any comments submitted in response 
to this notice that are related to the issues addressed in the proposed 
regulations (the maximum term of programmatic permits and the 
programmatic permit application fee structure). Through this notice, we 
solicit public input on any other aspects of the permit program 
governed by 50 CFR 22.26 that may be improved by revision of the 
regulations. We are particularly interested in public input on the 
following three issues:
    (1) Clarifying the criteria for issuance of programmatic and 
standard permits. Under the criteria, ``take that cannot practicably be 
avoided'' can be authorized with a standard permit; however, a 
programmatic permit requires that the take be ``unavoidable.'' The 
preamble accompanying the 2009 rule states, however, that ``applicants 
for both types of permits must take all practicable steps to avoid and 
minimize take'' (74 FR 46838). Should the regulations be revised so 
that the issuance criterion for programmatic permits is the same as for 
standard permits: That the project proponent has reduced take to the 
maximum degree practicable?
    (2) Compensatory mitigation. Under what circumstances should 
permittees be required to provide compensatory mitigation? To what 
degree should any required mitigation offset the detrimental impacts to 
eagles? We also welcome input regarding what types of

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specific compensatory mitigation measures may be appropriate.
    (3) Eagle Act preservation standard. The Eagle Act requires the 
Service to determine that any take of eagles it authorizes is 
``compatible with the preservation of bald eagles or golden eagles.'' 
In the preamble to the final regulations for eagle nonpurposeful take 
permits, and in the Final Environmental Assessment of the regulations, 
we defined that standard to mean ``consistent with the goal of stable 
or increasing breeding populations.'' We seek public input as to 
whether this standard is appropriate or whether it should be further 
refined or otherwise modified.

    Authority: The authorities for this notice are the Migratory 
Bird Treaty Act of 1918, as amended (16 U.S.C. 703-712), and the 
Bald and Golden Eagle Protection Act (16 U.S.C. 668a).

    Dated: December 20, 2011.
Rachel Jacobson,
Acting Assistant Secretary for Fish and Wildlife and Parks.

    Editorial Note: This document was received in the Office of the 
Federal Register on March 30, 2012.

[FR Doc. 2012-8087 Filed 4-12-12; 8:45 am]